Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya)

The International Criminal Court (ICC) investigated violence that erupted surrounding elections in the Republic of Kenya, which caused an estimated 1,000 deaths and displaced hundreds of thousands of Kenyan citizens. A substantial amount of the violence targeted the Kikuyu ethnic group and was perpetrated by criminal gangs or militia groups associated with various political parties. The ICC tried several political leaders for crimes against humanity. During the proceedings, the ICC addressed what characteristics qualified a group to be considered an organization under the Rome Statute’s requirements for crimes-against-humanity charges. The majority of the ICC’s pretrial chamber listed factors to consider in determining organization status, including whether (1) the group was under a responsible command or established hierarchy, (2) the group could carry out a widespread or systematic attack against a civilian population, (3) the group exercised control over part of a country’s territory, (4) the group’s primary purpose was to commit crimes against the civilian population, (5) the group implicitly or explicitly demonstrated an intent to attack a civilian population, and (6) the group was part of a larger group that fulfilled some or all of the listed criteria. The factors were listed as considerations rather than a rigid definition that needed to be fully satisfied to earn organization status under the Rome Statute. The majority found that the private Kenyan criminal and militia groups sufficiently satisfied the organization criteria and that their actions could be considered for crimes-against-humanity charges. One of the judges issued a dissenting opinion.