The following commentary first ran in Legal Eye on the ICC, a regular e-letter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the Legal Eye newsletter, click here.
On March 8, 2011, Pre-Trial Chamber II handed down two decisions in the Kenya Situation on the applications submitted by the Prosecutor on December 15, 2010 to issue Summonses to Appear for William Samoei Ruto (Ruto), Henry Kiprono Kosgey (Kosgey), Joshua Arap Sang (Sang), as well as for Francis Kirimi Muthaura (Muthaura), Uhuru Muigai Kenyatta (Kenyatta) and Mohammed Hussein Ali (Ali). The Kenya Situation arose out of the violence surrounding the Kenyan national elections held on December 27, 2007. It is the first Situation before the ICC in which the Prosecutor has used his proprio motu powers under Article 15 of the Rome Statute to start an investigation on his own initiative. The Pre-Trial Chamber had authorised the Prosecutor on March 31, 2010 to proceed with an investigation in Kenya. Judge Kaul dissented on both issuances of the Summonses to Appear. The initial appearance of Ruto, Kosgey and Sang was held on April 7, 2011; that of Muthaura, Kenyatta and Ali on April 8, 2011. The confirmation of charges hearing in the cases is scheduled for September 1 and September 21, respectively.
Summonses to Appear for Ruto, Kosgey and Sang
In his December 15, 2010 application, the Prosecutor had sought charges against Ruto, Kosgey and Sang for four counts of crimes against humanity, namely: murder; deportation or forcible transfer of population; torture; and persecution on political grounds. Having analysed the information submitted to it by the Prosecutor, Pre-Trial Chamber II found that there were reasonable grounds to believe murder, deportation or forcible transfer of population and persecution as crimes against humanity were committed. The Chamber was not satisfied that there were reasonable grounds to believe torture as a crime against humanity was committed.
The Chamber found there were reasonable grounds to believe that Ruto and Kosgey were criminally responsible as indirect co-perpetrators under Article 25(3)(a) and that Sang was criminally responsible under Article 25(3)(d). Accordingly, the Chamber issued Summonses to Appear for Ruto, Kosgey and Sang for murder, forcible transfer of population and persecution as crimes against humanity.
Summonses to Appear for Muthaura, Kenyatta and Ali
In the December 15, 2010 application, the Prosecutor had sought charges against Muthaura, Kenyatta and Ali for five counts of crimes against humanity, namely: murder; deportation or forcible transfer of population; rape and other forms of sexual violence; other inhumane acts; and persecution on political grounds. In his application, the Prosecutor linked the crimes to attacks in very specific locations, including Naivasha, Nakuru, Kisumu and Kibera. Having analysed the information submitted to it by the Prosecutor, Pre-Trial Chamber II found there were reasonable grounds to believe that murder and forcible transfer of population as crimes against humanity were committed. The Chamber also found there were reasonable grounds to believe that rape as a crime against humanity was committed as part of the Nakuru attack. However, it found that the Prosecutor failed to provide evidence substantiating the claim that rape was committed also as part of the attack in Naivasha. Furthermore, with regard to the alleged inactivity of the Kenyan Police Forces during the attack on Nakuru and Naivasha, the Chamber noted, without elaborating on its findings, that the Prosecutor submitted that ‘the attack occurred pursuant to an “organisational” policy, without alleging the existence of a State policy by abstention’.
The charge of other forms of sexual violence in the Prosecutor’s application for summonses to appear was based on acts of forcible circumcision of Luo men. In a worrying move, the Chamber did not consider these acts to be of a ‘sexual nature’ and found that these should in fact be classified as ‘other inhumane acts’. The Chamber also found there were reasonable grounds to believe that persecution as a crime against humanity was committed.
Although it found there were reasonable grounds to believe deaths, injuries and rapes were committed in Kisumu and Kibera, the Chamber found that the Prosecutor ‘failed to provide an accurate factual and legal submission […] to examine whether the acts of violence were part of an attack pursuant to or in furtherance of a State policy’. In addition, the Chamber found that the Prosecutor failed to provide material to establish that there were reasonable grounds to believe that the events in Kisumu and/or Kibera could be attributed to Muthaura, Kenyatta and/or Ali.
The Chamber found that there were reasonable grounds to believe that Kenyatta and Muthaura were criminally responsible as indirect co-perpetrators under Article 25(3)(a) and that Ali contributed ‘in any other way’ under Article 25(3)(d). Accordingly, the Chamber issued Summonses to Appear for Muthaura, Kenyatta and Ali for murder, forcible transfer of population and persecution as crimes against humanity, only with respect to crimes committed in Nakuru and Naivasha, and for rape as a crime against humanity only with respect to crimes committed in Nakuru. The Chamber declined to issue Summonses to Appear for the alleged crimes committed in Kisumu and Kibera.
On March 14, 2011, the Prosecution sought leave to appeal two issues in the Pre-Trial Chamber’s decision issuing Summonses to Appear for Muthaura, Kenyatta and Ali. The first issue related to the Chamber’s interpretation of the organisational requirement of crimes against humanity; the other issue related to the Chamber’s finding that forcible circumcision of adult males does not constitute ‘other forms of sexual violence’. On 1 April 2011, Single Judge Trendafilova rejected the Prosecution’s request for leave to appeal on the grounds that neither issue constituted an ‘appealable issue’. With regards to the crime of forcible circumcision, she noted, however, that this does not preclude the Prosecutor from bringing charges of other forms of sexual violence at a later point in the proceedings. Pursuant to Article 61(4) the Prosecutor may amend or withdraw charges prior to the confirmation of charges hearing.
In an interview with IRIN on April 25, 2011, Brigid Inder, Executive Director of the Women’s Initiatives for Gender Justice, expressed concern about the reclassification of charges of forcible circumcision by the Pre-Trial Chamber. ‘In our view, what makes these acts a form of sexual violence is the force and the coercive environment, as well as the intention and purpose of the acts,’ she said. ‘It isn’t simply about the injuries and suffering, although clearly these are also aspects of these crimes. But the forced circumcision of Luo men … has both political and ethnic significance in Kenya and therefore has a specific meaning. In this instance, it was intended as an expression of political and ethnic domination by one group over the other and was intended to diminish the cultural identity of Luo men.’ She added that the Office of the Prosecutor (OTP) had failed to stress these points in their application for summonses to appear, merely stating that these acts were of a sexual nature, without elaborating on this point. The Women’s Initiatives has called on the OTP to properly argue the case for charging forced circumcision as a form of sexual violence. 
The Women’s Initiatives has previously expressed concern about the Prosecution’s apparent difficulty in presenting evidence of gender-based crimes robust enough to survive arrest warrant and confirmation stages of proceedings. As an example, the charge of ‘other forms of sexual violence’, sought by the Prosecutor also in the Bemba case, has never been successfully sustained by the OTP beyond the arrest warrant/summons to appear stage of proceedings.
Read the press interview with Brigid Inder here.
Read the Pre-Trial Chamber’s decision rejecting the Prosecution’s leave to appeal.
 ICC-01/09-01/11-1; ICC-01/09-02/11-1.
 ICC-01/09-30-RED; ICC-01/09-31-RED.
 ICC-01/09-01/11-2; ICC-01/09-02/11-3. Following his earlier dissent on the 31 March 2010 decision authorising the Prosecutor’s initiation of an investigation in the Kenya Situation (ICC-01/09-19), Judge Kaul disagreed with the majority decision to issue the Summonses to Appear against the six individuals because he believed that the ICC lacks jurisdiction ratione materiae. Although he was satisfied that the crimes for which Ruto, Kosgey and Sang are allegedly criminally responsible, were planned and organised, Judge Kaul did not believe the alleged crimes were committed ‘pursuant to the policy of a state-like organisation, which is an indispensable element and inherent characteristic of crimes against humanity under Article 7 of the Statute’ (ICC-01/09-01/11-2, para 50, emphasis in original). Similarly, recalling his understanding of the essential characteristics of an ‘organisation’ in his dissent to the 31 March 2010 decision, Judge Kaul also failed to see an ‘organisation’ in the Prosecutor’s application for Summonses to Appear for Muthaura, Kenyatta and Ali (ICC-01/09-02/11-3, para 27). Instead, Judge Kaul classified the cooperation between the Mungiki and the Kenyan Police Forces as ‘a limited partnership of convenience’ (para 31).
 Article 7(1)(a).
 Article 7(1)(d).
 Article 7(1)(f).
 Article 7(1)(h).
 ICC-01/09-01/11-1, paras 30-32.
 ICC-01/09-01/11-1, para 33.
 ICC-01/09-01/11-1, paras 37-39.
 Article 7(1)(a).
 Article 7(1)(d).
 Article 7(1)(g).
 Article 7(1)(k).
 Article 7(1)(h).
 ICC-01/09-02/11-1, para 26.
 ICC-01/09-02/11-1, para 24.
 ICC-01/09-02/11-1, para 27.
 ICC-01/09-02/11-1, para 28.
 ICC-01/09-02/11-1, para 31.
 ICC-01/09-02/11-1, para 32.
 ICC-01/09-02/11-1, paras 45-51.
 ICC-01/09-02/11-2-Red, para 5.
 ICC-01/09-02/11-27, para 29.
 ‘Kenya: Plea to ICC over forced male circumcision’, IRIN News, 25 April 2011, available at <http://www.irinnews.org/report.aspx?ReportId=92564>, last visited on 24 June 2011.