On 21 September 2013, a group of armed individuals entered the Westgate mall in Nairobi, Kenya and began what would become a three-day hostage stand-off and shootout with the authorities. At most recent count, the death toll is 72 with over 200 hundred injured. The perpetrators have been identified as being associated with Al-Shabaab, an Islamist group that controls large swaths of southern Somalia. Kenya’s President, Uhuru Kenyatta, announced three days of national mourning and vowed that the perpetrators would face justice.
On 24 September 2013, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, issued a press release which read,
The Prosecutor of the International Criminal Court, Fatou Bensouda, expresses her deep sympathy to the victims of the appalling attack on the Westgate Mall in Nairobi and to their families and the people of the Republic of Kenya. She prays that the hostages held in the mall have been safely delivered and for a swift end to this dire situation.
Such attacks by armed groups upon innocent civilians are contrary to international law and may constitute a crime under the Rome Statute, to which Kenya is a State Party. In expressing her solidarity with the victims, their families and the people of Kenya, and with full respect for the primacy of jurisdiction of the Republic of Kenya, the Prosecutor stands ready to work with the international community and the Government of Kenya to ensure that those responsible for these crimes are brought to justice.
This press release sets out the possibility of classifying the tragedy which took place at the Westgate mall as an international crime by stating that “[s]uch attacks by armed groups upon innocent civilians are contrary to international law.” She then goes on to say that these are crimes within the jurisdiction of the ICC. The court has jurisdiction over war crimes, crimes against humanity and genocide. Therefore, in order for the ICC to have jurisdiction over crimes committed at the Westgate mall, they will have to fall into at least one of these three categories.
Each category of international crimes has its own detailed doctrines and elements that distinguish them from ordinary “national” crimes that are not punishable under international law. These elements are often referred to as “chapeau” elements or situational elements for the crimes. These can come in the form of objective elements, (such as the widespread or systematic attack or connection with an armed conflict for crimes against humanity and war crimes, respectively) or as a subjective element (such as the specific intent need for genocide). The question therefore is whether or not these contextual elements can be said to have been satisfied in the case of the crimes committed at the Westgate mall.
Considering that Al-Shabaab appeared to be targeting civilians at the mall, and the absence of an armed conflict in Kenya, the appropriate place to begin our analysis seems to be with Crimes Against Humanity.
Crimes Against Humanity
The precondition for classifying an act as a “Crime Against Humanity” as opposed to a domestic crime is that it must have been “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The concept of attack is then defined to be “a course of conduct involving the multiple commission of acts referred to in paragraph 1 [individual crimes, e.g., murder, rape etc] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” The statute itself does not define the terms “widespread” or “systematic.” Nor are these terms defined in the Elements of Crimes, a supplementary interpretative tool for understanding the meaning of the Rome Statute’s provisions.
The definition of “widespread” as used in international jurisprudence is not 100% clear. It is undisputed that “widespread” character of the attack is in reference to the number of victims (as opposed to the territorial scope of the crime), but the language in the jurisprudence has been less broad in its interpretation of the threshold for making this determination. It is not clear what the numerical inquiry should be when faced with a new situation involving potential Crimes Against Humanity, but it is undisputed that the scale of the attack and number of victims must be considered when making the determination that a widespread or systematic attack has occurred. “Systematic” has been defined as a qualitative element relating to “the organized nature of the acts of violence and the improbability of their random occurrence.”
An individual crime can therefore be prosecuted as a Crime Against Humanity before the ICC when it is committed in connection with a high casualty event or organized act(s) of violence and with knowledge of that event, in furtherance of an organizational policy.
Do the events at the Westgate mall fall into this category?
Before turning to a more statutory analysis, I would like to make a teleological observation on international criminal law, that is, I would like to discuss the purpose of criminalizing behavior at the international level. The thing that separates ICL from municipal criminal law is the interest that it protects, that is, the interests of the international community as a whole. After all, the underlying crimes (murder, rape, enslavement, torture etc) are criminalized by national legislatures all over the world, independent from their status as components of internationally punishable activity. The international community (and therefore each individual State) does not have an interest in punishing every murder or rape in the world. If they did, there would universal jurisdiction for every State to punish every crime committed anywhere in the world according to its own laws regardless of the identity of the perpetrator(s) or the victim(s). However, this is not the case. States must have some form of connection to an event to criminalize and punish it. Similarly, the heinousness of the crime is not enough otherwise every serial killer, torturer or cannibal would be subject to universal jurisdiction, which of course they are not. The same is true of gangland shootouts or systemic violence against the members of minority groups (think of the Klu Klux Klan).
This leads me to believe, based on the purpose of ICL as a protector of international interests, that for an act to be a “widespread or systematic attack against a civilian population” that “attack,” in whatever form it may take, must be something that threatens interests at the international level. I have written elsewhere that the creation of Crimes Against Humanity has seen a continual evolution toward an equation with gross violations of internationally protected human rights. In this light, if the “attack” is not related to gross violations of these internationally protected interests, it cannot be an “attack” within the meaning of Crimes Against Humanity.
The question to answer is then, what international interest was threatened by the events in Nairobi?
I struggle to see what that international interest could be. This event – tragic and hateful, for which the perpetrators must be punished – is a crime of national import. Otherwise, any hostage situation or horrible crime of violence could be characterized as a Crime Against Humanity. The Oklahoma City bombing might qualify (hundreds of people were killed) and the same could be said about the Boston Marathon Bombing (while 3 people died, over 200 were injured – this could otherwise be considered as 200 counts of attempted murder as a crime against humanity). However, both of these acts feel like national crimes – not international crimes, and this seems correct. International crimes and the international justice system should be reserved for those acts that threaten the international system, that are on such a scale that they destabilize a region or a country as a whole. The events of the Westgate mall just fail to reach that level. While an argument can be made that the attack was widespread (there were many victims) or systematic (it was well planned and effectively carried out) – and it is clear they targeted civilians – the event fails to satisfy a teleological analysis of what it means for there to be a widespread or systematic attack against a civilian population as a contextual element for the commission of an international crime. For this reason, the ICC should not consider charging those allegedly responsible for the events at the Westgate for Crimes Against Humanity.
But wait, the Prosecutor’s press release states that “[s]uch attacks by armed groups upon innocent civilians are contrary to international law.” This could mean that the charges could be for War Crimes having been carried out by armed groups.
Let’s test that hypothesis.
The precondition for qualifying as a War Crime is that the underlying crime be “closely related to hostilities occurring in territories controlled by [the] parties” to an armed conflict, but not necessarily in a conflict zone. An armed conflict is then defined as occurring whenever “there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State.”
Without a doubt there is a war going on in Somalia. Al-Shabaab, the group who claimed responsibility for the events at the Westgate, is an active participant in that war, and at times has been on the winning side of major confrontations with Somali national forces. Kenya has at times participated in this conflict on the side of the national forces fighting Al-Shabaab. Could this provide the link to the armed conflict in Somalia so as to qualify the crimes at Westgate as being of international concern?
I think that it can, but not because Al-Shabaab is an “armed group” that killed “innocent civilians.” If this were the case any armed street gang that took actions that resulted in the deaths of innocent bystanders would qualify. And not because Al-Shabaab is fighting in a conflict in Somalia, but because Al-Shabaab is fighting a conflict in Somalia in which Kenya is a participant. Furthermore, and this is necessary, because Al-Shabaab specifically characterized the Westgate events as a reprisal for Kenya’s aiding the Somali government as the reason for its actions. Should any one of these elements (the existence of an armed conflict, both sides participation in that armed conflict and the connection of the events at the Westgate mall to that conflict) fail to be proved before an international criminal tribunal (such as the ICC) it would mean that charges of international crimes would have to fail, the defendants acquitted and the events at the Westgate mall would be chargeable only as municipal crimes.
The statement by the Prosecutor of the ICC about the actions of Al-Shabaab at the Westgate mall as being contrary to international law is most likely an accurate statement. However, her statement failed to clearly set out on what basis the assertion was made. Each category of international crimes has its own detailed doctrines and elements that distinguish them from ordinary “national” crimes that are not punishable under international law. These elements are often referred to as “chapeau” elements or situational elements for the crimes. These can come in the form of objective elements, (such as the widespread or systematic attack or connection with an armed conflict for crimes against humanity and war crimes, respectively) or as a subjective element (such as the specific intent need for genocide). This brief analysis has shown that the crimes at the mall are most likely not chargeable as Crimes Against Humanity, which might have at first glance seemed to be the most appropriate way to charge them. However, a more expansive view shows that they are most likely punishable as War Crimes.
The choice of whether or not to move ahead with international trials for those responsible for the horrors of those three days in Nairobi will be, for lack of a better enforcement mechanism, a political decision. As it is, the Kenyan government has voted to leave the ICC system. This would greatly reduce the likelihood of an international trial leaving any trial to States that can gain custody of the accused and is interested to prosecute them.
 It is worth noting that while Kenya is a member of the court, its parliament recently voted to leave that organization. The consequences of this will need to be reviewed in another setting. See, http://www.bbc.co.uk/news/world-africa-23969316.
 There will also be jurisdiction over the crime of aggression in the future.
 See, Joseph William Davids, The Tenth Anniversary of the International Criminal Court: From Crimes Against Humanity to Human Rights Crimes, 18 New Eng. J. Int’l & Comp. L. 225 (2012). There is no indication that this was a genocidal attack, so there will be no further discussion of this crime.
 See, Article 7(2), Rome Statute of the International Criminal Court. See also, Davids at 233.
 Ibid. at Article 7(2)(a).
 For example, the ICTR in the Akayesu case articulated that the “concept of ‘widespread’ may be defined as a massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.” Akayesu para. 580. Subsequent decisions of the ICTR have echoed this definition, more succinctly, interpreting “widespread” as follows: “scale of the attacks and the multiplicity of victims”, see Muhimana para 257, “large scale, involving many victims” Kajalijeli para. 871. The ICTY has been somewhat looser with its definition of “widespread”, stating that the widespread requirement refers to “the large-scale nature of the attack and the number of targeted persons.” See Dixon p, 178, quoting Kordic Dec. 17 2004 para 94.
 Kunarac, appeals, 12 June 2002, para 94.
 There is an interesting debate about whether the “plan or policy” requirement of the ICC statute should be restricted to States. However, for the time being this seems to have been settled in favor of including non-State actors. See, e.g., Prosecutor v. Ruto & Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373 (23 January 2013).
 This is a very long and complex discussion for which there is unfortunately not enough room here. For summaries purpose, States have jurisdiction over their territory, their nationals and those acts that threaten their national security. I will attempt to address this subject in more detail at a later date.
 A single event may constitute an attack against a civilian population and “widespread” means number of those killed.
 It is worth noting that the Special Tribunal for Lebanon has jurisdiction over a terrorist bombing incident. However, this is not an international tribunal in the strictest sense. It was formed by an agreement with a national government and applies – in addition to international law – the national law of that State. The nature of the STL is a wonderfully interesting subject, but far outside the scope of this humble post.
 This would be the case with the unrest in Syria and Libya in recent memory and Yugoslavia and Rwanda in the 1990’s.
 See, ICTY, Prosecutor v. Gotovina et. al., Trial Judgment, ¶ 1677 (15 April 2011). See also, ICC, Prosecutor v. Lubanga, Trial Judgment, ¶ 504 (14 March 2012).
 ICTY, Prosecutor v. Tadic, Trial Judgment (2 October 1995), cited by Gotovina and Lubanga.
 The history of the collapse of Somali is another fascinating and tragic subject of inquiry that this post cannot hope to cover in a way that even remotely pays these events the respect that they are due.