The recent ICC decisions regarding Kenya (confirming charges against four out of six defendants) highlight the centrality and significance of collective criminal action.
In particular, what’s striking about the decisions is the specific organizations that the Pre-Trial Chamber concentrated on, and the recurring legal significance that the court attached to these organizations.
For example, Prosecutor v. Muthaura, Kenyatta, and Hussein Ali, concentrates on the Mungiki organization, and that organization anchors the court’s analysis of the substantive offense as well as the mode of liability in the case. Here’s how the court does it:
First, the PTC found that the Mungiki was an organization within the meaning of the Rome Statute’s definition of crimes against humanity, which requires that the attack be widespread and systematic and pursuant to a state or organizational plan or policy. There is a longstanding academic and judicial dispute over the meaning of “organizational” in this context, and a few scholars and judges have concluded that state involvement is required here. Included in this group are Bill Schabas and the dissenting judge in this case, Judge Kaul. I think it is fair to say that the majority view (whether correct or not) is that at least some non-governmental organizations (or sub-state organizations) might qualify under this standard, though whether the Mungiki organization meets the criteria is a more specific inquiry.
What interests me is that the exact same analysis appears in the section on modes of liability, when the PTC finds that the defendants (whose charges were confirmed) are potentially indirect co-perpetrators because they controlled an organized apparatus of power – the Mungiki – whose members carried out the attacks.
There is some tension, though, between the picture of the Mungiki painted in the crimes against humanity section of the opinion and the section on indirect co-perpetration. For example, when discussing the organizational plan or policy, the PTC concludes that a third individual not charged in the case, Maina Njenga, “possessed exclusive control over the Mungiki organization.” However, when the PTC discusses indirect co-perpetration, the PTC concludes that the confirmed defendants had joint control over it. How is this possible? According to the court, the control was “transferred” from Njenga to the confirmed defendants. But did both of the confirmed defendants have control or just one of them? Did the physical perpetrators really report to both of them? I suspect this will be an issue at trial.
The second case, Prosecutor v. Ruto, Kosgey, and Sang, does not deal with the Mungiki. Having no such organization to anchor its analysis of crimes against humanity, the PTC concludes that there was a “Network” of perpetrators who constituted an organization with a plan or policy to carry out the attacks. This Network sounds rather ad hoc, closer to a conspiracy or a Joint Criminal Enterprise than a state-based organization of the kind that Schabas favors or even the kind of identifiable organization like the Mungiki. It is, I suspect, an importation of the collective concepts one finds on the mode of liability side of the analysis – a JCE or an organized apparatus of power. But I question whether the type of ad hoc collective one finds on the mode of liability side is the same type of collective appropriate for the "plan or policy" requirement.
Obviously, this importation is going to be hotly debated. On the one hand, I’m not sure that an organization needs to have a formal name in order to meet the crimes against humanity standard – that would be far too formalistic. On the other hand, though, if a “network” of perpetrators is allowed to constitute an organization for purposes of crimes against humanity, it will clearly represent a significant expansion of the concept from its origins in the Nuremberg era.