## Facts

- Kenya experienced widespread violence following the 27 December 2007 presidential election, resulting in approximately 1,000 deaths and the displacement of hundreds of thousands.
- The Prosecutor collected information under the Rome Statute and, on 26 November 2009, requested authorization to open a proprio motu investigation.
- The request sought authorization under Article 15 to investigate alleged crimes against humanity connected to the post-election violence.
- Pre-Trial Chamber II reviewed the Prosecutor’s supporting materials, including information from commissions of inquiry, NGOs, and other sources, and considered victims’ representations.
- The matter involved authorization of an investigation into a “situation,” not the criminal responsibility of identified persons.

## Issues

1. Whether the statutory preconditions for authorization under Articles 15(4) and 53(1) were met, including a reasonable basis to believe ICC crimes had been or were being committed.
2. Whether the available information supported the contextual elements of crimes against humanity under Article 7, including an attack directed against a civilian population, a State or organizational policy, and a widespread or systematic character.
3. Whether potential cases arising from the situation appeared admissible under Article 17 (complementarity).
4. Whether substantial reasons existed to conclude an investigation would not serve the interests of justice under Article 53(1)(c).

## Decision

- The Chamber authorized the Prosecutor to open an investigation into the situation in the Republic of Kenya.
- The Chamber found a reasonable basis to believe crimes against humanity within Article 7 had been committed in connection with the post-election violence.
- The Chamber concluded that non-state entities (including organized criminal gangs or militias linked to political actors) may qualify as “organizations” capable of having a policy for Article 7(2)(a).
- The Chamber determined the potential cases appeared admissible because there was no indication of relevant national proceedings that would bar ICC action under Article 17.
- The Chamber found no substantial reasons to believe an investigation would not serve the interests of justice, given the gravity of the alleged crimes and victims’ interests.

## Legal Principles

- Authorization under Article 15 requires the Chamber to assess whether there is a “reasonable basis to proceed” and whether the matter appears to fall within the Court’s jurisdiction, applying the Article 53(1) criteria at the situation-authorization stage.
- “Reasonable basis to believe” is a low threshold compared to later procedural stages and does not involve determinations of individual criminal responsibility.
- For crimes against humanity, an “attack” is a course of conduct involving multiple commissions of Article 7(1) acts against a civilian population and need not be a military operation.
- The “State or organizational policy” element in Article 7(2)(a) can be satisfied by non-state organizations; indicia relevant to organizational status include hierarchy/command, capacity to carry out widespread or systematic attacks, territorial control, criminal purpose, intent to attack civilians, and connection to a larger qualifying group (not all factors required).
- “Widespread” relates to large-scale nature and number of victims; “systematic” relates to organization and non-randomness; underlying acts must have a nexus to the broader attack to qualify as crimes against humanity.
- At the authorization stage, admissibility focuses on whether potential cases appear to be subject to genuine domestic investigations or prosecutions concerning substantially the same conduct and likely perpetrators.

## Conclusion

The Chamber permitted a proprio motu ICC investigation into Kenya’s post-election violence after finding a reasonable basis to believe crimes against humanity occurred pursuant to a State or organizational policy, that prospective cases appeared admissible in light of limited domestic proceedings, and that opening an investigation served the interests of justice.


Situation in the Republic of Kenya, ICC-01/09 (Int’l Crim. Ct. Pre-Trial Chamber II 2010)