A Powerful Dissenting Opinion on the ICC’s Decision to Authorize an Investigation into Kenya

by Julian Ku

When the ICC Pre-Trial Chamber approved the Prosecutor’s request for authority to investigate alleged “crimes against humanity” in Kenya, I didn’t notice this long and powerful dissenting opinion (around p. 84) by one of the judges (Hans-Peter Kaul).  The standard for authorizing an investigation is pretty easy to satisfy (at least it sounds that way to me), so the dissent here was striking.    I’ll leave it to others to decide as to whether Judge Kaul is right (check out the ICC’s new YouTube channel for more discussion). He sure has me halfway convinced.  Some choice excerpts (emphasis added) after the jump.

In essence, the main reason for this position [against the investigation] is the following: both, my interpretation of article 7(2)(a) of the Statute, which sets out the legal definition of “attack directed against any civilian population” as constitutive contextual element of crimes against humanity, and my examination of the Prosecutor’s Request and supporting material, including the victims’ representations, have led me to conclude that the acts which occurred on the territory of the Republic of Kenya do not qualify as crimes against humanity falling under the jurisdictional ambit of the Court. I have concluded in particular that there is no reasonable basis to believe that crimes, such as murder, rape and other serious crimes, were committed in an “attack against any civilian population” “pursuant to or in furtherance of a State or organizational policy to commit such attack”, as required by article 7(2)(a) of the Statute.


8. As a Judge of the International Criminal Court (the “Court” or the “ICC”), I would like to ask all in the Republic of Kenya who yearn for justice and who support the intervention of the Court in this country for understanding the following: there are, in law and in the existing systems of criminal justice in this world, essentially two different categories of crimes which are crucial in the present case. There are, on the one side, international crimes of concern to the international community as a whole, in particular genocide, crimes against humanity and war crimes pursuant to articles 6, 7, and 8 of the Statute. There are, on the other side, common crimes, albeit of a serious nature, prosecuted by national criminal justice systems, such as that of the Republic of Kenya.


10. Furthermore, it is my considered view that this would not be in the interest of criminal justice in general and international criminal justice in particular. It is neither appropriate nor possible to examine and explain in this opinion all the potential negative implications and risks of a gradual dov^mscaling of crimes against humanity towards serious ordinary crimes. As a Judge of the ICC, I feel, however, duty-bound to point at least to the following: such an approach might infringe on State sovereignty and the action of national courts for crimes which should not be within the ambit of the Statute. It would broaden the scope of possible ICC intervention almost indefinitely. This might turn the ICC, which is fully dependent on State cooperation, in a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility. Taken into consideration the limited financial and material means of the institution, it might be unable to tackle all the situations which could fall under its jurisdiction with the consequence that the selection of the situations under actual investigation might be quite arbitrary to the dismay of the numerous victims in the situations disregarded by the Court who would be deprived of any access to justice without any convincing justification.


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