* This text was reproduced and reformatted from the text available at the International Criminal Court website (visited Jan. 26, 2012) http://www.icc-cpi.int/iccdocs/doc/doc1223134.pdf.

1 Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta & Mohammed Hussein Ali, Case No. ICC-01/09-02/11 OA, Appeals Chamber, Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 Entitled Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, ¶ 1 (Aug. 30, 2011), available at http://www.icc-cpi.int/iccdocs/doc/doc1223134.pdf [hereinafter Appeals Chamber Judgment].

2 Id. ¶ 2

3 Id.

4 Admissibility Challenge by the Government of Kenya, ¶¶ 32 (citing Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, Case No. ICC-01/04-01/07-1497 (OA 8) (Sept. 25, 2009) [hereinafter Katanga OA 8]. Katanga OA 8 was cited in Appeals Chamber Judgment, supra, note 1, ¶ 27.

5 Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Case No. ICC-01/09-01/11-19, ¶ 52 (Mar. 31, 2010), available at http://www.icccpi. int/iccdocs/doc/doc854562.pdf. It is important to note that the Government of Kenya’s citation of a test relating to the hierarchy of those under investigation does not appear in the Article 15 Decision. Instead, there is merely a reference to “national proceedings in relation to the groups of persons and the crimes allegedly committed.”

6 Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta & Mohammed Hussein Ali, Case No. ICC-01/09-02/11-96, Pre-Trial Chamber II, Decision on the Application of the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, ¶ 50 (May 30, 2011).

7 Appeals Chamber Judgment, supra note 1, ¶ 41.

8 See Katanga OA 8, supra note 4.

9 Appeals Chamber Judgment, supra note 1, ¶ 34.

10 Id. ¶ 39.

11 Id. ¶ 40.

12 Id.

13 Id.

14 Id.

15 Id. ¶ 50 (citing Pre-Trial Chamber Decision, supra note 6, ¶ 62).

16 Id. ¶¶ 80-83, 95-99, 108-112.

17 Id. ¶¶ 120-22.

1 ICC-01/09-19. A corrigendum was filed on 1 April 2010, as ICC-01/09-19-Corr.

2 “Decision on the Prosecutor’s Application for Summons to Appear for Francis Kirimi Muthaura, Uhum Muigai Kenyatta and Mohammed Hussein Ali”, ICC-01/09-02/11-1.

3 ICC-01/09-02/11-26.

4 Admissibility Challenge, para. 80.

5 ICC-01/09-02/11-40.

6 ICC-01/09-02/11-67.

7 “Prosecution Response to ‘Application on behalf of the Government of the Republic of Kenya pursuant to Article 19 of the ICC Statute”’, ICC-01/09-02/11-71.

8 “The Response of the General Mohammed Hussein Ali to the ‘Application on behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute”’, ICC-01/09-02/11-70.

9 “JOINT DEFENCE OBSERVATIONS ON THE ARTICLE 19 APPLICATION BY THE GOVERNMENT OF THE REPUBLIC OF KENYA”, ICC-01/09-02/11-72.

10 “Observations on behalf of victims on the Government of Kenya’s Application under Article 19 of the Rome Statute”, ICC-01/09-02/11-74.

11 “Decision under Regulation 24(5) of the Regulations of the Court on the Motion Submitted on Behalf of the Government of Kenya”, 2 May 2011, ICC-01/09-02/11-81. 12 ICC-01/09-02/11-91 with 7 annexes.

13 ICC-01/09-02/11-96.

14 ICC-01/09-02/11-104.

15 ICC-01/09-02/11-130.

16 ICC-01/09-02/11-130-Corr.

17 Document in Support of the Appeal, para. 1.

18 ICC-01/09-02/11-153.

19 Annex 1 to “Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s Decision on Admissibility”, ICC-01/09-02/11-153-Anx 1.

20 ICC-01/09-02/11-168.

21 ICC-01/09-02/11-166.

22 ICC-01/09-02/11-177.

23 Victims’ Observations, paras 40, 43-44.

24 Victims’ Observations, paras 13-16, 27-29, 31.

25 ICC-01/09-02/11-180.

26 ICC-01/09-02/11-194.

27 Kenya’s Response to the Victims’ Observations, para. 3.

28 ICC-01/09-02/11-198.

29 Prosecutor’s Response to the Victims’ Observations, para. 8.

30 Prosecutor’s Response to the Victims’ Observations, para. 9.

31 “Prosecutor Response to the Document in Support of the Appeal”, para. 35.

32 Victims’ Observations, paras 44, 45-46, 48.

33 “Order on the filing of observations in relation to the ‘Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s Decision on Admissibility”, 14 July 2011, ICC-01/09-02/11-171.

34 “Defence Observations on the ‘Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s Decision on Admissibility”’, 15 July 2011, ICC-01/11-02/11-173.

35 See “Decision on the ‘Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s Decision on Admissibility”’, ICC-01/09-02/11-202.

36 “Order on the filing of observations in relation to the Application on behalf of the Republic of Kenya for Leave to Reply to the ‘Prosecutions response to the ‘Appeal of the Government of Kenya against the Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”“, 21 July 2011, ICC-01/09-02/11-186.

37 “Prosecution’s response to the Application on behalf of the Government of Kenya for Leave to Reply to the ‘Prosecution’s response to the Appeal of the Government of Kenya against the Decision on the Application by the Government of Kenya Challenging the Admissibility of the case Pursuant to Article 19(2)(b) of the Statute”’, 22 July 2011, ICC-01/09-02/11-190.

38 See “Decision on the Application on behalf of the Government of Kenya for Leave to Reply to the “Prosecution’s response to the ‘Appeal of the government of Kenya against the Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”“’, ICC-01/09-02/11-206.

39 ICC-01/09-02/11-210. The Request for an Oral Hearing was registered on 4 August 2011.

40 “Order on the filing of a response to the Republic of Kenya’s ‘Request for an Oral Hearing Pursuant to Rule 156 (3)”’, 5 August 2011, ICC-01/09-02/11-217.

41 “Prosecution’s Response to the Government of Kenya ‘Request for an oral Hearing Pursuant to Rule 156(3)”’, 5 August 2011, ICC-01/09-02/11-232.

42 “Defence Response to the ‘Request for an Oral Hearing Pursuant to Rule 156(3)”’, 11 August 2011,ICC-01/09-02/11-233.

43 “Response to the Government of Kenya’s ‘Request for an Oral Hearing Pursuant to Rule 156(3)”’, 11 August 2011, ICC-01/09-02/11-228.

44 See “Decision on the ‘Request for an Oral Hearing Pursuant to Rule 156 (3)”’, ICC-01/09-02/11-251.

45 Document in Support of the Appeal, para. 1.

46 Document in Support of the Appeal, paras 12 (iv), 79-92.

47 Admissibility Challenge, para. 32.

48 25 September 2009, ICC-01/04-01/07-1497 (OA 8), referring to paras 81-82 of the Judgment in Katanga OA 8.

49 Admissibility Challenge, footnote 20.

50 Admissibility Challenge, para. 32.

51 Kenya’s Reply of 16 May 2011, para. 27.

52 Kenya’s Reply of 16 May 2011, para. 27.

53 Kenya’s Reply of 16 May 2011, para. 26.

54 Impugned Decision, para. 48.

55 Impugned Decision, para. 50.

56 Impugned Decision, para. 50.

57 Impugned Decision, para. 51.

58 Impugned Decision, para. 52.

59 Document in Support of the Appeal, paras 79-80.

60 Document in Support of the Appeal, para. 82.

61 Document in Support of the Appeal, para. 84.

62 Document in Support of the Appeal, para. 43.

63 Document in Support of the Appeal, para. 85.

64 Document in Support of the Appeal, para. 87.

65 Document in Support of the Appeal, para. 89.

66 Mr Ali’s Response to the Document in Support of the Appeal, para. 35.

67 Mr Ali’s Response to the Document in Support of the Appeal, para. 39.

68 Prosecutor’s Response to the Document in Support of the Appeal, para. 75.

69 Prosecutor’s Response to the Document in Support of the Appeal, para. 82.

70 Prosecutor’s Response to the Document in Support of the Appeal, para. 87.

71 Prosecutor’s Response to the Document in Support of the Appeal, paras 92-102.

72 Victims’ Observations, para. 43.

73 Impugned Decision, para. 52, referring to Judgment in Katanga OA 8, para. 81.

74 Impugned Decision, para. 52.

75 See also article 90 (1) of the Statute, which regulates the procedure to be followed if a State receives a request from the Court for the surrender of a person and a competing request from another State “for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person’s surrender”.

76 See J. Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (Martinus Nijhoff Publishers, 2008), p. 203. Stigen notes that “there must be an examination of some detail reflecting a sufficient measure of thoroughness. Otherwise it will be considered as inaction”. See also C. Cárdenas, Die Zulässigkeitsprüfung vor dem Internationalen Strafgerichtshof (Berliner Wissenschafts-Verlag, 2005), p. 58.

77 As the Appeals Chamber explained in the Judgment in Katanga OA 8, para. 78, “in considering whether a case is inadmissible under article 17 (1) (a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability”.

78 Document in Support of the Appeal, para. 43.

79 Document in Support of the Appeal, para. 83, citing Kenya’s Reply of 16 May 2011, paras 27-28.

80 Document in Support of the Appeal, para. 43.

81 Document in Support of the Appeal, para. 43.

82 Document in Support of the Appeal, paras 89-91.

83 Document in Support of the Appeal, para. 83, citing Kenya’s Reply of 16 May 2011, paras 27-28.

84 Note also the restrictions to challenging admissibility contained in article 19 (4) of the Statute.

85 Document in Support of the Appeal, para. 4, referring to the Impugned Decision, para. 66.

86 Document in Support of the Appeal, para. 5.

87 Document in Support of the Appeal, paras 53-58.

88 Impugned Decision, para. 60.

89 Filing of Annexes of 21 April 2011, Annex 1.

90 Filing of Annexes of 21 April 2011, Annex 3.

91 Kenya’s Reply of 16 May 2011, Annex 2.

92 Impugned Decision, para. 60.

93 Impugned Decision, para. 61.

94 Impugned Decision, para. 62.

95 Impugned Decision, para. 64.

96 Document in Support of the Appeal, para. 55.

97 Document in Support of the Appeal, para. 54.

98 Document in Support of the Appeal, para. 55.

99 Document in Support of the Appeal, para. 56.

100 Document in Support of the Appeal, para. 56. Mr Ruto is one of the three suspects in the case ICC-01/09-01/11 that is also pending before the Pre-Trial Chamber.

101 Document in Support of the Appeal, para. 57.

102 Document in Support of the Appeal, para. 5.

103 Document in Support of the Appeal, para. 6.

104 Mr Ali’s Response to the Document in Support of the Appeal, para. 13.

105 Mr Ali’s Response to the Document in Support of the Appeal, para. 20.

106 Mr Ali’s Response to the Document in Support of the Appeal, para. 22.

107 Prosecutor’s Response to the Documents in Support of the Appeals, para. 46.

108 Prosecutor’s Response to the Documents in Support of the Appeals, para. 51.

109 Prosecutor’s Response to the Documents in Support of the Appeals, para. 47.

110 Prosecutor’s Response to the Documents in Support of the Appeals, para. 48.

111 Victims’ Observations, para. 13.

112 Victims’ Observations, para. 14.

113 Victims’ Observations, para. 28.

114 Victims’ Observations, para. 28.

115 Victims’ Observations, para. 15.

116 Victims’ Observations, para. 15.

117 Prosecutor v. Jean-Pierre Bemba Gombo, “Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa”’, 2 December 2009, ICC-1/05-01/08-631-Red (OA 2), para. 61 (citing Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, “Judgment In the Appeal by Mathieu Ngudjolo Chui of 27 March 2008 against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release”, 9 June 2008,ICC-01/04-01/07-572 (OA 4), para. 25; see also Prosecutor v. Jean-Pierre Bemba Gombo, “Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled ‘Decision on application for interim release”’, 16 December 2008, ICC-01/05-01/08-323 (OA), para. 52.

118 Prosecutor v. Callixte Mbarushimana, “Judgment on the appeal of Mr Callixte Mbamshimana against the decision of Pre-Trial Chamber I of 19 May 2011 entitled ‘Decision on the “Defence Request for Interim Release”“’, 14 July 2011, ICC-01/04-01/10-283 (OA), paras 1 and 17.

119 In the Admissibility Challenge, Kenya submitted at para. 69 that: “It is accepted by the Government that the investigation of all cases, including those presently before the ICC, will be most effectively progressed once the new [Director of Public Prosecutions] is appointed, which is expected to be finalized in accordance with the provisions of the Constitution by the end of May 2011.” At para. 71, Kenya stated: ‘An updated report of the state of these investigations and how they extend upwards to the highest levels and to all cases, including those presently before the ICC, will be submitted by the end of July 2011.” 120 In the Filing of Annexes, paras 2 to 3, Kenya submitted as follows: “2. [...] As explained in the [Admissibility Challenge], various investigative processes are continuing. There have been further developments in respect of these national investigations, including in respect of the investigations into the six suspects presently before the ICC. [...] 3. These materials are evidence of the national investigations that are underway. They support the [Admissibility Challenge] as they demonstrate that the Government is investigating the two cases presently before the ICC, thereby rendering them inadmissible before the ICC pursuant to Article 19.”

121 Kenya’s Reply of 16 May 2011, para. 31.

122 Kenya’s Reply of 16 May 2011, para. 50.

123 Kenya’s Reply of 16 May 2011, para. 52.

124 Kenya’s Reply of 16 May 2011, para. 56.

125 Impugned Decision, paras 60-65.

126 See Kenya’s Reply of 16 May 2011, para. 61. where Kenya stated that “[t]he Government of Kenya agrees with the Prosecution Response at para. 12 that the party challenging admissibility bears the burden of demonstrating that the case is inadmissible” [Footnote omitted].

127 See in the Situation of Uganda, “Judgment on the appeals of the Defence against the decisions entitled ‘Decision on victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06”’, 23 February 2009, ICC-02/04-179 (OA) and ICC-02/04-01/05-371 (OA 2), para. 36.

128 Document in Support of the Appeal, para. 6.

129 Document in Support of the Appeal, para. 8.

130 Prosecutor’s Response to the Document in Support of the Appeal, para. 37.

131 Impugned Decision, para. 60.

132 Impugned Decision para. 61.

133 Impugned Decision 61.

134 Annex l, p. 3.

135 Annex 2, pp. 2-3.

136 Annex 2, p. 3.

137 Annex 2, p. 4.

138 Impugned Decision, para. 64.

139 ICC-01/09-01/11.

140 Kenya’s Reply of 16 May 2011, para. 56.

141 Kenya’s Reply of 16 May 2011, para. 56.

142 Document in Support of the Appeal, para. 46.

143 Document in Support to the Appeal, paras 45, 58.

144 Admissibility Challenge, para. 69.

145 Admissibility Challenge, para. 71.

146 Admissibility Challenge, para. 71.

147 Admissibility Challenge, para. 74.

148 Admissibility Challenge, para. 32.

149 Impugned Decision, para. 58.

150 Impugned Decision, para. 58.

151 Impugned Decision, para. 59.

152 Impugned Decision, para. 59.

153 Impugned Decision, para. 56.

154 Document in Support of the Appeal, para. 46.

155 Document in Support of the Appeal, para. 47.

156 Document in Support of the Appeal, para. 50.

157 Document in Support of the Appeal, para. 7.

158 Document in Support of the Appeal, para. 45.

159 Document in Support of the Appeal, para. 58.

160 Document in Support of the Appeal, para. 58.

161 Mr Ali’s Response to the Document in Support of the Appeal, para. 18.

162 Mr Ali’s Response to the Document in Support of the Appeal, para. 18.

163 Mr Ali’s Response to the Document in Support of the Appeal, para. 19.

164 Mr Ali’s Response to the Document in Support of the Appeal, para. 19.

165 Prosecutor’s Response to the Document in Support of the Appeal, para. 57.

166 Prosecutor’s Response to the Document in Support of the Appeal, para. 59.

167 Prosecutor’s Response to the Document in Support of the Appeal, para. 52.

168 Prosecutor’s Response to the Document in Support of the Appeal, para. 53.

169 Prosecutor’s Response to the Document in Support of the Appeal, para. 53.

170 Victims’ Observations, para. 9.

171 Victims’ Observations, para. 36.

172 Impugned Decision, para. 60.

173 Impugned Decision, para. 60.

174 Documents in Support of the Appeals, para. 59.

175 Documents in Support of the Appeals, para. 59.

176 See Prosecutor v. Joseph Kony et al., Appeals Chamber, “Judgment on the appeal of the Defence against the ‘Decision on the admissibility of the case under article 19 (1) of the Statute’ of 10 March 2009”, 16 September 2009, ICC-02/04-01/05-408 (OA 3).

177 Judgment in Kony OA 3, para. 47. See also Judgment in Katanga OA 8, para. 37.

178 Judgment in Kony OA 3, para. 48.

179 Judgment in Kony OA 3, para. 80.

180 Admissibility Challenge, paras 71 and 79.

181 Admissibility Challenge, paras 71 and 79.

182 Admissibility Challenge, para. 71.

183 Admissibility Challenge, para. 71.

184 Kenya’s Reply of 16 May 2011, para. 25.

185 Impugned Decision, para. 58.

186 Impugned Decision, para. 58.

187 Impugned Decision, para. 59.

188 Document in Support of the Appeal, paras 12 (i) and 60.

189 Document in Support of the Appeal, paras 12, 60, and 63. Kenya raises similar arguments as part of its submissions on the alleged factual errors, see para. 50. 190 Document in Support of the Appeal, para. 61.

191 Mr Ali’s Response to the Document in Support of the Appeal, para. 24.

192 Mr Ali’s Response to the Document in Support of the Appeal, para. 27.

193 Mr Ali’s Response to the Document in Support of the Appeal, para. 28.

194 Prosecutor’s Response to the Document in Support of the Appeal, para. 62 (footnote omitted).

195 Prosecutor’s Response to the Document in Support of the Appeal, para. 63.

196 Victims’ Observations, para. 40.

197 “Decision under Regulation 24(5) of the Regulations of the Court on the Motion Submitted on Behalf of the Government of Kenya”, 2 May 2011, ICC-01/09-02/11-81.

198 Document in Support of the Appeal, para. 61.

199 Admissibility Challenge, footnote 8.

200 Prosecutor’s Response to the Document in Support of the Appeal, para. 64.

201 Document in Support of the Appeal, paras 12 (ii), 64-69.

202 Admissibility Challenge, para. 20.

203 Admissibility Challenge, para. 21.

204 Admissibility Challenge, para. 81.

205 Decision on the Conduct of Proceedings of 4 April 2011, para. 10.

206 ICC-01/09-02/11-92.

207 Impugned Decision, paras 35-36.

208 Impugned Decision, para. 38.

209 Impugned Decision, para. 37.

210 Document in Support of the Appeal, para. 66.

211 Document in Support of the Appeal, para. 67

212 Mr Ali’s Response to the Document in Support of the Appeal, paras 30-34.

213 Mr Ali’s Response to the Document in Support of the Appeal, para. 33. (Footnote omitted).

214 Mr Ali’s Response to the Document in Support of the Appeal, para. 34.

215 Prosecutor’s Response to the document in Support, para. 67.

216 Prosecutor’s Response to the document in Support, paras 66-69..

217 Victims’ Observations, paras 40-41.

218 See para. 87 above.

219 See paras 95 et seq.

220 Prosecutor’s Response to the Document in Support of the Appeals, para. 69.

221 Decision on the Conduct of the Proceedings of 4 April 2011, para. 12.

222 Application of 18 May 2011, para. 23.

223 Application of 18 May 2011, paras 12-33.

224 Application of 18 May 2011, para. 30.

225 Impugned Decision, paras 35-36.

226 Document in Support of the Appeal, paras 12 (iii), 70-78.

227 ICC-01/09-58.

228 Request for Assistance, para. 2.

229 Request for Assistance, para.7.

230 Impugned Decision, paras 30-31.

231 “Decision on the Request for Assistance Submitted on Behalf of the Government of the Republic of Kenya Pursuant to Article 93(10) of the Statute and Rule 194 of the Rules of Procedure and Evidence”, 29 June 2011, ICC-01/09-63.

232 Document in Support of the Appeal, para. 74.

233 Document in Support of the Appeal, para. 77.

234 Document in Support of the Appeal, para. 77.

235 Prosecutor’s Response to the Document in Support of the Appeal, para. 71.

236 Prosecutor’s Response to the Document in Support of the Appeal, para. 71.

237 Prosecutor’s Response to the Document in Support of the Appeal, para. 71.

238 Victims’ Observations, para. 40.

239 Victims’ Observations, para. 42.