Judge Hans-Peter Kaul's dissent in the Kenya case is released by the ICC 16 Mar 2011
The ICC has released the sole dissent to Prosecutor Luis Moreno-Ocampo's request for summonses in the case on Kenya's post-election violence.

The 19 page ruling by Justice Hans Peter-Kaul, the Vice- President of the International Criminal Court, contradicted those of his other colleagues in the Pre-Trial Chamber II. He argued that claims that the violence was organised were not supported by any of the material presented to the judges and that he found no evidence suggesting a State policy of attacking civilians.

In his view, the hiring of criminal gangs by politicians was a temporary partnership of convenience rather than an “organisation” established for a purpose. A series of meetings with facilitators and the principal perpetrators did not amount to an organisation. He failed to “see the existence of an “organisation” behind the violent acts which may have established a policy to attack the civilian population within the meaning of article 7(2)(a) of the Statute.” He added that he failed to see how an ‘organisation’ could have existed when the lead figures were the Mungiki gang and Kenya Police Forces, but acknowledged that the evidence suggested that Uhuru Kenyatta acted as the principal contact between the Mungiki gang and the principal perpetrator.

In discussing the Head of Civil Service, Francis Muthaura, and the then Police Chief, Hussein Ali, Justice Kaul stated that any assessment of criminal conduct by the Kenya Police Forces should have considered the official positions of the two principal perpetrators and the responsibility of others in the Kenyan Police Forces.
Justice Kaul was also of the view that the Court lacks jurisdiction ratione because the crimes alleged do not amount to crimes against humanity pursuant to article 7 of the Statute.

He further argued that the ICC has no jurisdiction in the situation in the Republic of Kenya and the alleged crimes fall within the competence of the Kenyan criminal justice authorities to be investigated and prosecuted. He stated that he took this position with a heavy heart, being profoundly aware of the crimes and atrocities as described in the prosecutor’s Application for summonses.

The ruling is available here.

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