V. Legal Framework and Analysis 102 Indeed, precedent on the organizational element does allow for such an analysis. In the Republic of Kenya case, the ICC Pre-Trial Chamber II found reasonable grounds to believe that gangs of young men with varied forms of support from leaders of and businesspersons associated with the main political parties constituted an organization. In making that determination, the court held that “[w]hereas some have argued that only State-like organizations may qualify, the Chamber opines that the formal nature of a group and the level of its organization should not be the defining criterion” of whether that group qualifies as an organization.433 The Pre-Trial Chamber stressed, rather, that the defining characteristic should be whether the group has “the capability to perform acts which infringe on basic human values.”434 One author notes that this approach constitutes a “victim-centered approach,” which “favors liberality in terms of the recognition of the types of entity that may be responsible.”435 Similarly in Katanga, the Chamber sought to ensure that the organization requirement would not “exclude any entities” that satisfied the “widespread or systematic operation involving the multiple commission of acts” elements on the sole ground that they are insufficiently hierarchical to be considered an organization.436 The Chamber stressed that, “by no means can it be ruled out . . . that an attack against a civilian population may also be the doing of a private entity consisting of a group of persons pursuing the objective of attacking a civilian population.”437 The Katanga Trial Chamber ultimately held that to be an organization under the Rome Statute, it suffices only to have a “set of structures or mechanisms, whatever those may be, that are sufficiently efficient to ensure the coordination necessary to carry out an attack directed against a civilian population.”438 The Chamber further stressed that “no further requirement [is] necessary” to satisfy the organizational element once it is proven that the group has “sufficient means to promote or encourage the attack.”439 In addition to articulating the liberal standard described above, the Republic of Kenya case offers factors to consider in making the assessment as to whether a group constitutes an organization under the Rome Statute. Commentators have highlighted the inconsistency of adopting a victimcentered approach, followed by a seemingly separate and distinct articulation of factors, some of which were not relied on by the court in its own assessment.440 Nonetheless, the factors do provide a more structured framework to approach the analysis, which requires a higher threshold than the victim-centered test. According to the Republic of Kenya case, relevant factors to consider to determine whether a group constitutes an organization are: (i) whether the group is under a responsible command, or has an established hierarchy; (ii) whether the group possesses the means to carry out a widespread or systematic attack against a civilian population; (iii) whether the group directed its criminal activities against the civilian population as a primary purpose; (iv) whether the group exercises control over part of the territory of the State; and (v) whether the group is part of a larger group, which fulfils some or all of the abovementioned criteria.441 Importantly, these factors “do not constitute a rigid legal definition and do no not need to be exhaustively fulfilled.”442 433 Situation in the Republic of Kenya, Pre-Trial Chamber II, International Criminal Court, Case No. ICC-01/09, March 31, 2010, para. 90. 434 Situation in the Republic of Kenya, Pre-Trial Chamber II. 435 Christopher Roberts, “On the Definition of Crimes against Humanity and Other Widespread or Systematic Human Rights Violations,” University of Pennsylvania Journal of Law & Social Change, Vol. 20, 2017, p. 1. 436 Katanga, ICC, Case No. ICC-01/04-01/07, para. 1119. 437 Ibid. 438 Ibid. 439 Ibid. 440 Kress, “On the Outer Limits of Crimes against Humanity,” p. 858-858. 441 Ibid. 442 Situation in the Republic of Kenya, Pre-Trial Chamber II, para. 93.