I’m currently in Amsterdam at an academic conference sponsored by the Free University Amsterdam, where I delivered a paper on the role of collective organizations in international criminal law. The conference was called “Pluralism and Harmonization” and took place under the auspices of a collaborative research project called “Common Civility” – a catchy title.
The issue of collective organizations is of extreme importance for several reasons. First, the concept of organizations will play a huge rule in the upcoming Kenya cases before the ICC. In a recent decision handed down by the ICC Appeals Chamber, the court declined to revisit a decision made by the Pre-Trial Chamber regarding the notion of a state or organizational plan or policy, which is one of the requirements for crimes against humanity. For reasons that I will explain below, I was actually a bit surprised that the Appeals Chamber declined to address the issue.
The Pre-Trial Chamber decided, in confirming the charges in two of the three Kenya cases, that there was sufficient evidence that crimes against humanity were committed in Kenya. In one case, the court ruled that the Mungiki constituted the relevant organization with the plan or policy to commit the crimes after the election; in the other case, the organization was defined as a “Network” of perpetrators. The first issue is whether the organization for these purposes must be a sub-state entity that is part of the government, as some scholars have claimed. Second, even assuming that this interpretation is to be rejected as too narrow, the next question is whether the Mungiki – and especially this ad hoc “Network” – are the right kinds of organizations for establishing criminal liability for crimes against humanity.
The stakes are incredibly high. At issue is how narrowly or how broadly the court’s jurisdiction for international crimes will be defined. If one stretches the concept of the organization as far as the notion of a Network, then the court can probably justify judicial intervention in all sorts of conflict zones and define them as crimes against humanity. If one sticks with a narrow and traditional concept of organization as a governmental entity, then the court’s authority is significantly constrained.
That’s one reason why I thought that the Appeals Chamber would take up the issue. However, the Appeals Chamber claimed that the issue was a question on the merits, and not jurisdictional, and therefore inappropriate for them to consider at this time. Instead, the Appeals Chamber will consider the issue on appeal after a full trial is conducted.
From a common law perspective, this isn’t surprising. American courts frequently leave major issues like this open until the fact-finding process of the trial has been completed. However, in the past the ICC has been very willing to make many complex pronouncements of law during the Pre-Trial phase, on the theory that such legal issues will structure the contours of the trial and the participants deserve to know where they stand on them before conducting the trial. In some sense, this is a more civil law approach to the procedural issue.
Given the length of trials at the ICC, we are likely going to have to wait several years – I would guess perhaps as long as four – before we have answers to these questions from an Appeals Judgment. Check back in 2016 for Part II of this blog, I guess.