1 Situation in the Republic of Kenya, No. ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (Mar. 31, 2010), at http://www.icc-cpi.int/iccdocs/doc/doc854562.pdf [hereinafter Kenya Decision]. The ICC documents cited herein are available at the Court’s Web site, http://www.icc-cpi.int/. The entire URL is given for those that are hard to find.

2 Rome Statute of the International Criminal Court, Art. 15, July 17, 1998, 2187 UNTS 3 [hereinafter Rome Statute]. Article 15(1) states: “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.” Article 15 (3) provides in relevant part: “If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected.”

3 SC Res. 1593, para. 1 (Mar. 31, 2005) (Sudan); SC Res. 1970, para. 4 (Feb. 26, 2011) (Libya).

4 Bengali, Shashank, Kenyan Rivals Agree to Share Power After Disputed Election , Knight Rldder, Feb. 28, 2008 Google Scholar, available in Lexis, News Library, Wire Service Stories File.

5 Rice, Xan, Kenyans Riot as Kibaki Declared Poll Winner , Guardian, Dec. 31, 2007 Google Scholar, at 1, available in LEXIS, News Library, Major World Newspapers File.

6 Kenyan National Dialogue and Reconciliation, Annotated Agenda and Timetable at A)2 (Feb. 1, 2008), at http://www.dialoguekenya.org/docs/Signed_Annotated_Agenda_Feblst.pdf.

7 See Report of the Commission of Inquiry into Post-election Violence, Executive Summary at vii (Oct. 15, 2008), at http://www.dialoguekenya.org/docs/PEVReportl.pdf.

8 Id. at 18,472–75.

9 Kofi Annan, Press Statement on the Defeat of the Constitution of Kenya Amendment Bill in Parliament (Feb. 13, 2009), at http://www.dialoguekenya.org/press.aspx (describing the rejection of the bill as “a major setback to the implementation” of the CIPEV report and “a blow to efforts aimed at ending the culture of impunity in Kenya”).

10 ICC, Office of the Prosecutor, Press Release, ICC Prosecutor Receives Sealed Envelope from Kofi Annan on Post-election Violence in Kenya (July 9,2009), at http://www.icc-cpi.int; Agreed Minutes of the Meeting Between Prosecutor Moreno-Ocampo and the Delegation of the Kenyan Government at 2 (July 3, 2009), at http://www.icc-cpi.int/ (follow hyperlinks to press release of July 3, 2009).

11 See also Situation in the Republic of Kenya, No. ICC-01/09-3, Request for Authorisation of an Investigation Pursuant to Article 15 (Nov. 26, 2009), at http://www.icc-cpi.int/iccdocs/doc/doc785972.pdf. The prosecutor’s office had been conducting preliminary investigations in Kenya. See ICC, Office of the Prosecutor, OTP Statement in Relation to Events in Kenya (Feb. 5, 2008), at http://www.icc-cpi.int/ (follow hyperlinks from “Office of the Prosecutor” to “Reports and Statements”).

12 Presiding Judge Ekaterina Trendafilova and Judge Cuno Tarfusser formed the majority.

13 Kenya now claims that it is willing and able to prosecute. See Situation in the Republic of Kenya, No. ICC-01/09-01/11, Decision on the Conduct of the Proceedings Following the Application by the Government of Kenya Pursuant to Article 19 of the Rome Statute (Apr. 4,2011), at http://www.icc-cpi.int/iccdocs/doc/docl050886.pdf; see also James Thuo Gathii, Kenya’s Credible Commitment to Keep Its Date with the ICC, Nairobi L. Monthly, Jan. 2011, available at http://ssrn.com/abstract=1729813. But see Prosecutor v. Ruto, No. ICC-01/09-01 -101, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute (May 30, 2011); Prosecutor v. Muthaura, No. ICC-01/09-02/11-96, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19 (2) (b) of the Statute (May 30, 2011), at http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Cases/ (follow “Chambers” hyperlink) (denying admissibility challenges on the basis that Kenya had failed to take concrete steps to investigate or prosecute the suspects for allegedly having committed crimes against humanity). On June 6, 2011, Kenya appealed the decisions denying its admissibility challenges.

14 Since this case report was drafted, some respected scholars have begun to assess the implications of the Kenya decision. See Kress, Claus, On the Outer Limits of Crimes Against Humanity: The Concept of Organization Within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision , 23 Leiden J. Int’l L. 855 (2010)CrossRefGoogle Scholar; Schabas, William A., Prosecuting Dr Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes , 23 Leiden J. Int’l L. 847, 852 (2010)CrossRefGoogle Scholar.

15 Prosecutor v. Ruto, No. ICC-01/09-01/11-2, Dissenting Opinion by Judge Hans-Peter Kaul to Pre-trial Chamber IPs “Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang” (Mar. 15,2011), at http://www.icc-cpi.int/iccdocs/doc/docl039488.pdf; Prosecutor v. Muthaura, No. ICC-01/09-02/11-3, Dissenting Opinion by Judge Hans-Peter Kaul to Pre-trial Chamber IPs “Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali” (Mar. 15, 2011), at http://www.icc-cpi.int/iccdocs/doc/docl039485.pdf (opposing the issuance of summonses; finding that the ICC lacks subject matter jurisdiction over the alleged offenses in Kenya); see also Jalloh, Charles C., Kenya’s Dangerous Dance with Impunity (Aug. 18,2009), at http://jurist.law.pirt.edu/forumy/2009/08/kenyas-dangerous-dance-with-impunity.php Google Scholar (expressing early doubt that the violence in Kenya constituted crimes against humanity because of weak evidence for fulfillment of the state or organizational policy requirement).

16 Quoting Rodney, Dixon & Hall, Christopher K., Article 7, para. 2 a-i, in Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 236 (Triffterer, Otto ed., 2d ed. 2008)Google Scholar.

17 ICC, Elements of Crimes, intro., para. 3, UN Doc. PCNICC/2000/l/Add.2 (Nov. 2, 2000) (emphasis added), quoted in Kenya Decision, para. 83; Diss. Op., para. 39.

18 Prosecutor v. Blaskic, No. IT-95-14-T, paras. 204–05 (Mar. 3, 2000).

19 In addition to a nexus to a conflict, the preamble to Article VI of the Statute of the Nuremberg Tribunal, while not explicitly mandating a state policy, required the suspects to have acted in the interests of European Axis countries. These were the jurisdictional elements that transformed otherwise domestic offenses into international crimes. For summaries of the relevant case law, see Kenya Decision, para. 86 n.79; Diss. Op., paras. 31 n.29, 49 n.51.

20 The birth and uneven growth of crimes against humanity as an international crime remains controversial. For more on this question, see Rikhof, Joseph, Crimes Against Humanity, Customary International Law and the International Tribunals for Bosnia and Rwanda , 6 Nat’l J. Const. L. 233 (1996)Google Scholar; Robinson, Darryl, Defining “Crimes Against Humanity’’at the Rome Conference , 93 AJYL 43 (1999)Google Scholar. Contra Mettraux, Guenael, Crimes Against Humanity in the Jurisprudence of the International Tribunals for the Former Yugoslavia and for Rwanda , 43 Harv. Int’l L.J. 237 (2002)Google Scholar.

21 Bassiouni, M. Cherif, Crimes Against Humanity In International Criminal Law 277 (2d rev. ed. 1999)Google Scholar.

22 Id. at 275.

23 See, e.g., Schabas, William A., State Policy as an Element of International Crimes , 98 J. Crim. L. & Criminology 953 (2008)Google Scholar.

24 On the evolution of this concept, see Kenya Decision, para. 86 n.79; Diss. Op., para. 50 n.51.