Kenya: Appeals Chamber Rejects Appeals Regarding Challenges to the ICC's Jurisdiction

Today, 24 May 2012, the Appeals Chamber of the International Criminal Court (ICC) decided unanimously to reject the appeals regarding the challenges to the ICC's jurisdiction, raised by the Defence teams in the two Kenyan cases: The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta.

The Defence teams of the accused had challenged the Court's jurisdiction before the Pre-Trial Chamber, submitting that the Court should decline to exercise jurisdiction over their cases and contesting the interpretation of the term 'organizational policy' as a component of crimes against humanity under article 7 (2) (a) of the Rome Statute, which the Pre-Trial Chamber had adopted, by majority, in its decision authorising the opening of an investigation into the situation in Kenya, dated 31 March 2010. In its decisions on 23 January 2012, the Pre-Trial Chamber decided, by majority, to endorse its previous definition of the term 'organisational policy' and confirmed that the ICC has jurisdiction over the two Kenyan cases. The Defence teams appealed the Pre-Trial Chamber's decisions on 30 January 2012, essentially alleging legal, factual or procedural errors stemming from the Pre-Trial Chamber's interpretation of the term 'organizational policy' and its subsequent findings that such policy existed in the two cases. They requested the Appeals Chamber to declare that the Court does not have subject-matter jurisdiction in this instance and to reverse the Pre-Trial Chamber's confirmation of charges against the accused.

In its decisions, today, the Appeals Chamber indicated that the interpretation and existence of an 'organizational policy' relate to the substantive merits of this case as opposed to the issue of whether the Court has subject-matter jurisdiction to consider such questions. These issues relate to whether the Pre-Trial Chamber erred when it confirmed the charges in respect of the accused. As the Prosecutor has expressly alleged crimes against humanity, including the existence of an 'organizational policy', the Appeals Chamber found that the ICC has subject-matter jurisdiction over the alleged crimes. The Appeals Chamber noted that whether the Prosecutor can establish, in law and on the evidence, the existence of such a policy is not a question of jurisdiction, but rather a question to be determined on the merits. The Appeals Chamber concluded that the issues raised on appeal are therefore not properly before the Appeals Chamber. The Appeals Chamber decisions relate only to the issues raised by the accused and are with no prejudice to the merits of the cases.

The cases The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta are currently before Trial Chamber V. Status Conferences are scheduled, respectively, on 11 and 12 June 2012.

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