Dear readers – the following article is written by Thomas Obel Hansen, who holds a PhD in transitional justice and is an Assistant Professor with the United States International University in Nairobi, Kenya.  The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

Article 7(2)(a) of the Rome Statute, the treaty that established the International Criminal Court (ICC), stipulates that crimes against humanity are preconditioned on the existence of an attack on a civilian population “pursuant to or in furtherance of a state or organizational policy to commit such attack.” This so-called policy requirement is at the very heart of the Kenyan ICC cases, and will be further discussed in connection to the upcoming Orange Democratic Movement (ODM) confirmation of charges hearings.

Judge Hans-Peter Kaul’s dissent to authorizing an investigation into Kenya’s post-election violence, as well as his dissent to summon the suspects before the court earlier this year, was based on the understanding that the policy requirement is not fulfilled. More recently, the defense lawyers for William Samoei Ruto, Henry Kiprono Kosgey, and Joseph Arap Sang have stated that they will use the first day of the confirmation of charges hearings to challenge the court’s jurisdiction, including elaborating on how the policy requirement should properly be understood. The defense lawyers are expected to argue that no crimes within the jurisdiction of the court have been committed because the policy requirement is not fulfilled. Should the defense counsel succeed convincing the court, Kosgey, Ruto, and Sang will thus not stand trial in The Hague.

But what is the policy requirement about, and why has it come to play such a crucial role in the Kenyan cases pending before the court?

First, it must be pointed out that there has never been much consensus concerning the interpretation of Article 7(2)(a). In fact, the only thing observers seem to agree on is that the provision relates to the broader context in which the individual crimes are committed.

Crucially, there is no agreement as to whether Article 7(2)(a) adds a separate requirement to crimes against humanity or if the existence of a policy to commit an attack should simply be understood as something that can support that a widespread or systematic attack has taken place, as required by article 7(1) of the Rome Statute. In the case against Jean-Pierre Bemba an ICC pre-trial chamber held that the latter is the correct interpretation. However, in the more recent decision to authorize an investigation into the Kenyan situation, the judges in Pre-Trial Chamber II clearly stated that Article 7(2)(a) should be understood to entail a separate contextual requirement.

Assuming that there is indeed such a separate requirement, the question arises as to what is meant by “policy.” All three judges in the Kenyan cases agree that a policy need not be formally adopted but can be deducted from a variety of circumstances. The two majority judges in particular seem to set a low threshold, noting that the attack must simply be something more than spontaneous or isolated acts of violence.

The crucial question thus becomes what actors can establish a policy.

As the prosecutor did not allege the existence of a state policy, it is the question of what groups qualify as an organization under article 7(2)(a) that is most relevant here.

In other cases before the ICC, the term “organization” has been understood to include “groups of persons who govern a specific territory” or “any organization with the capability to commit a widespread or systematic attack against a civilian population.” However, the majority of judges in the Kenyan case set a new standard, claiming that the relevant distinction concerns “whether a group has the capability to perform acts which infringe on basic human values.” Judge Kaul, on the other hand, argues that only groups that have a state-like nature qualify as an organization.

These different interpretations have far-reaching consequences for the ODM case.

When deciding to summon the suspects in April this year, the majority of judges found reasonable grounds to believe that Ruto, Kosgey, and Sang had established a network that was “under responsible command;” had a “hierarchical structure;” “possessed the means to carry out a widespread or systematic attack against the civilian population;” “identified the criminal activities against the civilian population as its primary purpose;” and “articulated an intention to attack the civilian population.” Due to these various features, the majority argued that the network had the capability to perform acts which infringe on basic human values and, thus, satisfies their understanding of the policy requirement in article 7(2)(a).

Noting that the prosecutor had alleged the existence of five different branches of the network – a political, a media, a financial, a military, and a tribal branch – Judge Kaul observed that the first four of these branches did either not exist or simply reflected the tribal branch. While Judge Kaul said that the tribal branch of the network seemed to have coordinated its activities, he did not find that the evidence presented pointed to a hierarchy between the different branches of the network. Consequently, a “responsible command within a vertical hierarchical structure” – as known from states – was deemed absent. Judge Kaul also observed that the network – as opposed to states – only had a “temporary existence for a specific purpose,” namely to assist the community’s political leaders in gaining or maintaining political power in the Rift Valley. Taken together, these features led the judge to conclude that the network did not equal a state-like organization, but rather constituted a “group of perpetrators with a predisposition to violence engaged in a regional campaign of aggressive inter-ethnic violence, at the instigation of those persons within their tribe who were seeking to achieve their political aims at all costs.”

With the commencement of the confirmation of charges hearings this week, attention will be brought back to the question of how the policy requirement should be interpreted as well as the nature of the network allegedly established by the three ODM suspects. While it is unlikely that the two majority judges will change their mind concerning the criteria used for determining the existence of an organization, the defense counsel is nonetheless likely to claim that Judge Kaul’s interpretation should be followed. Given the inconsistent case law of the ICC – and the fact that the majority as well as the dissenting judge have established new guidelines for the interpretation of article 7(2)(a) – it is hard to predict how the Appeals Chamber would look at a potential appeal.

A further discussion of the policy requirement can be found in the author’s forthcoming article with George Washington International Law Review, vol. 43, no. 1, 2011. A draft version is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1894246.