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The International Criminal Court Vacates Charges against William Ruto and Joshua Arap Sang and Discharges them from the Trial

The International Criminal Court Vacates Charges against William Ruto and Joshua Arap Sang and Discharges them from the Trial.

The Prosecutor v. William Samoei Ruto and Joshua Arap Sang

ICC-01/09-01/11

Trial Chamber V (A) of the International Criminal Court

Judge C.E. Osuji, Presiding, Judge O.H. Carbuccia, Judge R. Fremr

April 5, 2016

Reported by Linda Awuor & Faith Wanjiku

Download the Decision

International Law-law of Treaty-Rome Statute-Crimes against Humanity-Individual Criminal Responsibility-whether there was enough evidence that proved that the Accused committed the alleged crimes against humanity as under the Rome Statute-Rome Statute of the International Criminal Court, 1998 -articles 7 (1) (a), (d), 25 (3) (a), (d)

International Law-law of Treaty-Rome Statute- Crimes against Humanity- whether there was enough evidence that proved that a network and organizational policy existed to perpetrate crimes against humanity on a civilian population to which a reasonable Trial Chamber could convict upon- Rome Statute of the International Criminal Court, 1998- article 7 (2)(a)

International Law-law of Treaty-Rome Statute-Reparations of Victims-whether the victims were entitled to reparation under vacation of the charges and discharge of the Accused from the Trial- Rome Statute of the International Criminal Court, 1998- article 75

International Law-law of Treaty-Rome Satute-Irrelevance of Official Capacity- whether the 1st Accused could fail to submit to the Court’s jurisdiction by virtue of having immunity- Rome Statute of the International Criminal Court, 1998- article 27 (2)

International Law-Regulations-Authority of the Chamber to Modify the Legal Characterisation of Facts- whether there could be recharacterization of the liability of the Accused under articles 25(3) (b) and (c) of the Rome Statute-Regulations of the Court, 2004-regulation 55(1)

Brief Facts

On March 31, 2010, Pre-Trial Chamber II of the International Criminal Court authorised the Prosecution to open a proprio motu investigation into the situation in Kenya. As a result of that investigation, the Prosecutor framed charges on alleged crimes against humanity committed in the context of post-election violence in Kenya in 2007/2008 against William Samoei Ruto and Joshua Arap Sang. From September 1 – 8, 2011, the hearing on the confirmation of charges was held.

On January 23, 2012, the Pre-Trial Chamber by majority, confirmed charges against the two Accused, of crimes against humanity of murder, deportation or forcible transfer of population and persecution in Turbo town (December 31, 2007), Greater Eldoret area (January 1 to 4, 2008), Kapsabet town (December 30, 2007 to January 16, 2008) and Nandi Hills town (December 30, 2007 to January 2, 2008), pursuant to articles 7(1) (a), (d) and (h) of the Rome Statuteof the International Criminal Court, 1998 ( Rome Statute). It confirmed the 1st Accused’s individual criminal responsibility under article 25(3) (a) of the Rome Statute, whereas the 2nd Accused’s participation was confirmed pursuant to article 25(3) (d) (i) of the Rome Statute. On September 10, 2013, the trial began.

The 1stAccused allegedly provided essential contributions to the implementation of the common plan in that he organised and coordinated the commission of widespread and systematic attacks that met the threshold of crimes against humanity. He allegedly:

(i) planned and was responsible for the implementation of the common plan in the entire Rift Valley;

(ii) created a network of perpetrators to support the implementation of the common plan;

(iii) directly negotiated or supervised the purchase of guns and crude weapons;

(iv) gave instructions to the perpetrators as to who they had to kill and displace and whose property they had to destroy; and

(v) Established a rewarding mechanism with fixed amounts of money to be paid to the perpetrators upon the successful murder of Party of National Unity(PNU) supporters or destruction of their properties.

The 2nd Accused, by virtue of his influence in his capacity as a key Kass FM radio broadcaster, allegedly contributed in implementation of the common plan by:

(i) placed his show Lee Nee Emet at the disposal of the organisation;

(ii) advertised the organisation’s meetings;

(iii) Fanned violence by spreading hate messages and explicitly revealed a desire to expel the Kikuyus; and

(iv) Broadcasted false news regarding alleged murder(s) of Kalenjin people in order to inflame the violent atmosphere.

Issues

  1. Whether there was enough evidence that proved that the Accused committed the alleged crimes against humanity as under articles 7 (1) (a), (d) and articles 25 (3) (a) and (d) of the Rome Statute.
  2. Whether there was enough evidence that proved that a networkand organizational policy existed to perpetrate crimes against humanity on a civilian population to which a reasonable Trial Chamber could convict upon.
  3. Whether the trial by virtue of lack of credibility of evidence amounted to a no case to answer and the consequences that followed.
  4. Whether there could be recharacterization of the liability of the two Accused under articles 25(3) (b) and (c) of the Rome Statute.
  5. Whether the 1st Accused could fail to submit to the Court’s jurisdiction by virtue of having immunity.
  6. Whether the victims were entitled to reparation under vacation of the charges and discharge of the two Accused from the Trial.
  7. Whether the level of witness interference and inappropriate attempts at the political level to meddle with the trial could render it null and void.

Relevant Provisions of the Law

Rome Statute of the International Criminal Court, 1998

Article 7 (1) (a), (d) -Crimes against Humanity

For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(d)Deportation or forcible transfer of population;

Article 7 (2) (a) – Crimes against Humanity

For the purpose of paragraph 1:

(a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

Article 25 (3) – Individual Criminal Responsibility

(a) In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c)For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court;

Article 27 (2) – Irrelevance of Official Capacity

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Article 64 (2) – Functions and powers of the Trial Chamber

The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

Rules of Procedure and Evidence of the International Criminal Court, 2002

Rule 134 quater8 -Excusal from presence at trial due to extraordinary public duties

1. An accused subject to a summons to appear who is mandated to fulfill extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be excused and to be represented by counsel only; the request must specify that the accused explicitly waives the right to be present at the trial.

2. The Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interests of justice and provided that the rights of the accused are fully ensured. The decision shall be taken with due regard to the subject matter of the specific hearings in question and is subject to review at any time.

Regulations of the Court, 2004

Regulation 55 (1)-Authority of the Chamber to modify the legal characterisation of facts

In its decision under article 74, the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.

Words & Phrases- definition of widespread attack- scope of the attack, on the basis of the number of targeted civilians or the geographical area.

Words & Phrases- definition of systematic attack-organised nature of the attack, for example, its patterns, and its non-accidental and non-isolated nature.

Words & Phrases- definition of civilian population- a number of persons, but not necessarily encompassing the entire civilian population of a given location, or an identifiable group of people (for example, based on racial, religious or other characteristics).

Words & Phrases- definition of organization-a group of persons or an organised body of people with a particular purpose, and enough resources, means and capacity to bring about the commission of the crimes.

Words & Phrases- definition of plan or policy- a deliberate attempt to target a civilian population, either by taking actions against civilians or deliberately abstaining to take action against such an attack.

Held by majority of the Court (with R. Fremr and C. E. Osuji concurring and H. Carbuccia dissenting)

Held by Judge R. Fremr (Concurring)

  1. The available evidence did not allow a reasonable Trial Chamber to find that there was a network, whose policy it was to evict members of the Kikuyu, Kisii and Kamba communities in particular, because they were perceived to be PNU supporters. Similarly, the evidence could not permit a reasonable Trial Chamber to find beyond reasonable doubt that there was a group of persons acting in accordance with a common plan to achieve the aforementioned objective, to which the two Accused either belonged or had knowledge of. It therefore followed that the Prosecution’s charges against the 1st Accused under article 25(3) (a) of the Rome Statute and those against the 2nd Accused under article 25(3)(d) of the Rome Statute could not be upheld by a reasonable Trial Chamber.
  2. Neither of the two Accused had a case to answer under the original charges. Given the conclusion that the evidence did not support the network or existence of an organisational policy in the sense of article 7(2) (a) of the Rome Statute, as pleaded by the Prosecution, it appeared unnecessary to consider whether the legal characterisation of the facts could be changed to accord with other forms of participation than the ones confirmed. Be that as it may, mindful of debate at the pre-trial stage and the lack of a definition of organisational policy in the Court’s statutory framework, as well as the views on the required level of organisation for the purposes of the commission of crimes against humanity, the Court considered the Prosecution’s suggestion that it was possible to recharacterise the modes of liability of the two Accused.
  3. In relation to the 1st Accused, there was insufficient evidence to support a possible conviction for ordering any of the crimes charged under article 25(3) (b) of the Rome Statute. In particular, there was no reliable evidence in the case record to suggest that the 1st Accused issued an order or otherwise instructed persons over whom he had de facto authority to kill or forcibly evict Kikuyu or other perceived PNU supporters. Nor was there sufficiently reliable evidence that he issued orders or instructions to any of the physical perpetrators who burned or otherwise destroyed the properties of Kikuyu or other perceived PNU supporters.
  4. In relation to the 1st Accused, there was no sufficient evidence in the case record that could support a conviction on the basis of soliciting or inducing the commission of any of the crimes charged under article 25(3) (b) of the Rome Statute. There was evidence before the Chamber which, under the no case to answer standard, could have lead a reasonable Trial Chamber to conclude that the 1st Accused used language at public events which denigrated Kikuyu and other perceived PNU supporters and expressed the political goal of having them expelled from the Rift Valley. He did so in the context of long-unresolved grievances related to the large scale eviction of Kalenjin from the province’s most fertile land and concomitant shift in ownership and tenure of the land into the hands of Kikuyu. However, that evidence was not sufficient to support a possible finding that the 1st Accused actively called upon any of those present to engage in criminal conduct to bring about that goal.
  5. With regard to a possible recharacterisation under article 25(3) (c) of the Rome Statute, none of the alleged contributions, such as the obtaining of weapons, organisation of transport and distribution of food for which there was evidence in the record, could be sufficiently clearly linked to the alleged Network. The same was true with regard to the 1st Accused’s alleged personal contributions. Equally importantly, even if certain alleged contributions could be linked to the 1st Accused, there was insufficient evidence to show that any such contributions were made for the purpose of facilitating the commission of one of the charged crimes.
  6. In relation to the 2nd Accused, solicitation or inducement pursuant to article 25(3) (b), brought out no reliable evidence in the record on the basis of which it could be concluded that any of the physical perpetrators were influenced in their decision to commit one or more of the underlying crimes by the 2nd Accused’s broadcasts. In the absence of such evidence, he could not be convicted under article 25(3)(b), even if it would have been established that he called upon listeners to engage in conduct that would, in the ordinary course of events, result in the commission of one or more of the crimes charged. Moreover, special concerns existed as to what a reasonable trier of fact could properly do for purposes of conviction where the charges arose from media broadcasts.
  7. Care, in particular, had to be taken to ensure that proof of a criminal broadcast or publication did not depend mostly or entirely on the oral evidence of witnesses whose own biases and sense of offence about the subject matter of discussion could have clouded their perception. The primary evidence of the actual broadcast or writing itself, rather than second-hand accounts of them, would be the safest basis for the proper evaluation of the material element of the criminality of the broadcast or publication charged as crime.
  8. As far as aiding and abetting pursuant to article 25(3) (c) of the Rome Statute was concerned, there was insufficient reliable evidence to suggest that the 2nd Accused’s radio broadcasts made any contribution to the commission of the charged crimes. Moreover, even if the 2nd Accused’s radio programme did provide one or more of the physical perpetrators with moral support, there was no evidence that showed that he made the relevant utterances for the purpose of facilitating the commission of the charged crimes. The available evidence did not sufficiently support any of the alternative forms of criminal responsibility to warrant the continuation of the trial on that basis.
  9. A Trial Chamber was not prevented from entering into an assessment of the credibility of witnesses’ testimony at the no case to answer stage, beyond situations where the Prosecution’s case could be viewed as being on the brink of breaking down. In trials of that nature, with a significant duration, it could not be the case that a Trial Chamber could have only considered, as suggested by the Prosecution, the quantity of the evidence, and not the quality. It could be against the interests of justice for a Trial Chamber to abstain from making a credibility assessment at the no case to answer stage where the evidence before it, at the close of the Prosecution case, was of an isolated nature and the falling away of any of the testimonies, if found that it could not be relied upon, could cause significant gaps in the Prosecution’s theory of the case that could make it unlikely that a conviction in the case could ultimately follow. In such circumstances and provided that the circumstances and the information available to the Trial Chamber allowed for it, a Trial Chamber could have made an evaluation of witness credibility, to avoid the trial continuing for another couple of years without any real prospect of a conviction.
  10. The normal consequence of a finding that there was no case to answer for either of the Accused, would be for an acquittal of the two Accused to be pronounced at that half-way stage. It would have been a preference for the Chamber, even if by majority, to do so, but there was no agreement between the judges on the point. Nevertheless, it was agreed that the proceedings against the two Accused should not have continued beyond the Prosecution case. Judge Eboe-Osuji concluded that a mistrial should have been declared and that the proceedings should have ended in that manner. There was a disturbing level of interference with witnesses, as well as inappropriate attempts at the political level to meddle with the trial and to affect its outcome. Although those circumstances had an effect on the proceedings and appeared to have influenced the Prosecution’s ability to produce more credible testimonies, the impact was not of such a level so as to render the trial null and void.
  11. Although it had not been shown, or argued, that the two Accused were involved in the interference of witnesses, they did profit from the interference, inter alia, by the falling away of several key witnesses that the Chamber found to have been interfered with. Other evidence may have been available to the Prosecution, including evidence that possibly could demonstrate the two Accused’s innocence of the charges, had it been able to prosecute the case in a different climate, less hostile to the Prosecution, its witnesses, and the Court in general.
  12. Noting the overly strict wording of article 20 of the Rome Statute on the principle of double jeopardy, which was no longer in line with the contemporary criminal laws of numerous national jurisdictions, it was appropriate to leave open the opportunity to re-prosecute the two Accused, should any new evidence that was not available to the Prosecution at the time of the case, warrant such a course of action. As a result of the case ending without a conviction, no reparations order could be made by the Court pursuant to article 75 for the benefit of victims of the post-election violence. While that must have been dissatisfactory to the victims, a criminal court could only address compensation for harm suffered as a result of crimes found to have taken place and the person standing trial for his or her participation in those crimes had been found guilty.
  13. The above conclusions about the existence of the alleged network, in no way detracted from the gravity of the post-election violence. The analysis of the evidence conducted did not diminish the impact the wave of criminal violence that followed the announcement of the results of the 2007 elections had had on thousands of Kenyans. It was important to recall that the parties never contested that reality, and no evidence that had been brought before the Chamber could cast doubt on the suffering and hardship of the victims of the post-election violence.

Held by Judge C. E Osuji (Concurring)

  1. The most authoritative criminal procedure texts in England and Wales appeared to agree that it was appropriate for magistrates, being triers of fact, to exercise the power to stop a weak case, at any time after the close of the case for the prosecution. In Archbold: Criminal Pleading, Evidence and Practice, Sweet & Maxwell, 2011, it was stated that in their summary jurisdiction, magistrates were judges, both of facts and law. It was therefore submitted that even where at the close of the prosecution case, or later, there was some evidence which, if accepted, would entitle a reasonable tribunal to convict, they nevertheless had the same right as a jury to acquit if they did not accept the evidence, whether because it was conflicting, or had been contradicted or for any other reason.
  2. At the High Court of Australia, Callinan J noted that power of magistrates included to terminate cases that were tenuous, inherently weak or vague and wondered whether it was in the public interest to continue to deny similar powers to judges in jury trials, having regard to the expense of criminal proceedings and the jeopardy to an accused they caused when permitted to go to a jury.
  3. here was a strong and credible basis to accept, as was apparent, that when no-case submissions were made at the close of the case for the prosecution, trial judges sitting alone without a jury were fully in a position to assess whether and the extent to which it was not open to the reasonable trier of fact to still convict an accused, having fully taken into account the weaknesses in the case for the prosecution. In making that assessment, there was a total absence of any risk that they might usurp the functions of a trier of fact, as they were the triers of fact.
  4. The regime of no case to answer, as applicable at the International Criminal Court (ICC), should have taken that approach. It should have enabled the termination of a weak case after the case for the prosecution closed. The power of an ICC Trial Chamber to follow that course, as the trier of fact, was precisely the same in its effect as the power of a jury (or magistrates) in common law jurisdictions to terminate a tenuous, inherently weak or vague case, as triers of fact, following the conclusion of the case for the prosecution.
  5. A thorough evidential review of the prosecution case, including assessments of credibility or reliability, would be done to see if the case was weak. If it was, including by reason of lack of credibility or reliability of the prosecution case the Court trying the case without a jury should have been free to say so fully and then terminate the case. But if after such a thorough review, the Court did not find the case to be weak, the Court needed only say so in the terms that the prosecution case was not weak for purposes of the no-case evaluation and that the defence was invited to enter their defence. It may be that the Court felt called upon to say more in its reasons, in the light of the test as to whether the jury could properly convict upon the evidence presented. Even so, any requirement to say more did not make it necessary to make any pronouncement to the effect that the prosecution had proved its case beyond reasonable doubt. It may have been that the most that could be safely said was that the evidence was capable of supporting a conviction; with the notion of capability entailing a minimum of equal likelihood of conviction as of acquittal. As the defence had yet to call its case, the equal likelihood of acquittal in that sense was only presumptive, justified by the need to give the defence an equal opportunity to present its case as required by the principle of the maxim audi alteram partem.
  6. It was for the foregoing reasons that any regime of no-case adjudication that focused only on the strengths of the prosecution case, to the exclusion of its weaknesses, would be inadequate in the particular circumstances of the Court. It was possible to formulate appropriate principles that guided the regime of no-case submissions, while at the same time taking into account the requirements of the unique circumstances of the Court when called upon to apply those principles. For, the practice and principles of no-case submissions undeniably traced their origins to the national legal order, like much else in international criminal procedural law. It was, however, entirely appropriate that their evolution in the international sphere would have required adaptation to the particular circumstances of the international court urged to employ them.
  7. There could be little doubt that the Prosecution’s case faced serious problems, and not only because the Appeals Chamber decided that the Prosecution could not rely on the out-of-court statements of five key witnesses in the case. The Chamber might therefore well have found, in accordance with the evidential review set out in Judge Fremr’s reasons, that there was no case for the defence to answer from an evidential perspective. Such a finding would effectively have ended the trial against both Accused, resulting in a verdict of acquittal in the purest sense of no-case adjudication. However, the ordinary consequences of a no-case finding would not be appropriate in the specific circumstances of the case, because of what amounted to a serious tainting of the trial process beyond the capacity of the process to cure.
  8. At the close of the case for the prosecution, a Trial Chamber had a right, in borderline cases, to make a definitive judgment that guilt had not been established by the evidence, even accepting that a reasonable tribunal could convict on the evidence, if accepted. That conclusion was consistent with an aspect of the earlier conclusion of Lord Lane CJ whose pronouncements in R v Galbraith became the classic starting reference for the modern law on no case to answer in the context of jury trials. He concluded that there would of course, as always in that branch of the law, be borderline cases. They could safely be left to the discretion of the judge. They would be consistent with a power inhering in a Trial Chamber, by virtue of article 64(2), to terminate weak or borderline cases at the close of the case for the prosecution.
  9. Ordinarily, the finding that the case for the prosecution had been weak should have resulted in a judgment of acquittal, according to the applicable principles of no-case adjudication. However, the particular circumstances of the case did not permit that result. Judges called upon to acquit an accused at the conclusion of a weak prosecution case had to satisfy themselves as to the validity of the basic forensic premise that no-case submissions assumed. That basic assumption comprised the following propositions: The prosecution case was conducted freely, not only in the presentation but also the investigation; yet, untroubled by any incidence of undue interference or intimidation, the case remained weak. On that premise, the case had to be terminated with a judgment of acquittal entered in favour of the two Accused.
  10. A verdict of acquittal was particularly unjustifiable in the circumstances, not only because it couldhave vindicated the illicit objectives of the unseen hands that had engaged in witness interference, the obvious aim of which was to frustrate the trial of the two Accused; but it might also have encouraged future unseen hands to interfere with a criminal trial. What was done against the trial by way of direct witness interference or undue political meddling or both could not become a case study for others inclined to emulate such tactics in future cases of the Court. It might not have been too much to speak of such tactics in terms of efforts whose aim was to hold justice hostage, with acquittals of accused persons as the envisaged ransom. Hence, for purposes of a mistrial resulting from obstruction of justice intended to benefit the two Accused, it did not matter at all that there was no evidence showing the two Accused as a culprit of the interference.
  11. It was enough that the aim of a mistrial was to hold out some hope that justice might have been seen to be done sooner or later. And those that sought to obstruct the course of justice, for the benefit of the two Accused, were made to realise that their efforts would come to nought. On the contrary, it might in the end only have inconveniently prolonged the process for the two Accused, as it did for the prosecution and the victims. No one was the winner. But declaration of mistrial and allowing the case to start afresh in the future was better than rewarding the interference and political meddling with a verdict of acquittal.
  12. Notably, the two Accused were not to blame for a jury’s inability to reach a verdict. Similarly, mistakes by judges in the conduct of trials had been known to result in the nullification of a previous trial and the ordering of a new one, notwithstanding the absence of any fault on the part of the two Accused. There was no need to view the proceedings as having been null and void. It was enough that the interest of justice required a fresh trial in the circumstances.
  13. The principle of good faith codified in article 26 of the Vienna Convention on the Law of Treaties imposed on the Government of Kenya (Government) an obligation of good faith towards the trial. But beyond that, basic considerations of good order and the rule of law required the Government positively to impress upon the population under its control even those agitated by the trial process, the need to respect the due process of the law while the trial was in progress. That duty of good faith even did not leave the Government entirely free to stay silent in the face of vocal agitation against the trial by any segment of the population directly under the control of the Government and not of the Court.
  14. It required the Government to inform the population that there were able and experienced Defence counsel in the case who were capable of exploring all available appellate avenues against unfavourable decisions and judgments. Rather than do that, the Government itself openly joined in the agitation even with clear indications of preparedness to counter the Chamber’s efforts to control the agitation as best it could. In the result, the Government contributed to the general ferment of hostility that was bound to trouble the psychology of the average potential or actual witness for the Prosecution directly or through pressure from family members.
  15. Some domestic jurisdictions where the law related to contempt of court forbade media reporting and commentary that might have had the effect of interfering with an on-going criminal trial. The forbidden conducts included not only original commentary, but also their publication through further reporting. Given the lack of uniform approaches at the domestic level, and the global reach of the Court’s work, it was not considered appropriate, in the course of the trial to explore the remedy of contempt of Court in respect of all the types of reporting that may haveprovoked such a sanction according to the laws of the more sensitive national jurisdictions.
  16. Depending on the circumstances, relentlessly vigorous media coverage of all aspects of a criminal case could have occasioned a miscarriage of the trial process. The tension between the needs of a fair trial and those of unrestrained media coverage and commentary engaged the risk of contempt of court proceedings in some jurisdictions. But, even in the absence of that corrective remedy, media reporting and commentary on an on-going criminal trial could have resulted in declarations of mistrial when media commentary, even with the best intentions, contributed to the tainting of the values of a fair trial.
  17. In the result, the remedy that appeared as appropriate in the case was a declaration of mistrial. There was a manifest necessity for that remedy in the circumstances of the case, not least because to acquit in the circumstances would have made a perfect mockery of any sense of the idea that justice had been seen to be done in the case. But, more importantly, the prejudicial conducts aforementioned were beyond the corrective facilities of the trial process at the ICC, in any manner that still permitted a safe judicial pronouncement of a judgment of acquittal as a result of any weaknesses perceived in the Prosecution case.
  18. The mistrial outcome was inspired by the classic case of United States v Perez, where the US Supreme Court held that the law had invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there was a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They were to exercise a sound discretion on the subject; and it was impossible to define all the circumstances, which could have rendered it proper to interfere. To be sure, the power ought to have been used with the greatest of caution, under urgent circumstances and for very plain and obvious causes. In capital cases especially, courts had to be extremely careful how they interfered with any of the chances of life, in favour of the prisoner. But, after all, they had the right to order the discharge; and the security which the public had for the faithful, sound, and conscientious exercise of the discretion, rested, in the case, as in others, upon the responsibility of the judges, under their oaths of office.
  19. A Trial Chamber’s power to declare a mistrial was easy enough to see. It followed by necessary implication from the imperatives of article 64(2) combined with article 4(1) of the Rome Statute, which imposed upon the Chamber an obligation to ensure a fair trial. It was a necessary part of that authority to declare it to be so, if factors beyond the remedial power of the Chamber interfered to prevent what could possibly be described as a fair trial. The idea of a fair trial was an objective notion. A trial had to be fair to all the parties and participants in the case, the Defence, the Prosecution and the victims, too.
  20. The matter of immunity in the Kenya cases pending before the ICC was not governed by customary international law. It was governed by the terms of the treaty that Kenya and its fellow states parties signed; the Rome Statute. All states parties agreed in it that the Rome Statute would apply equally to all persons without distinction based on official capacity. In particular, official capacity as Head of State or Government would in no case exempt a person from criminal responsibility under the Statute, nor would it, in and of itself, constitute a ground for reduction of sentence.
  21. The Statute also provided that immunities or special procedural rules which could have attached to the official capacity of a person, whether under national or international law, could not bar the Court from exercising its jurisdiction over such a person. The point of those provisions was that they guided the question of immunity for officials of a state party, regardless of what customary international law said.
  22. Kenya was one country that did not recognise immunity for its head of State in respect of certain offences. In particular, the Constitution of Kenya, 2010 did not recognize immunity even for the President of Kenya with respect to prosecutions under the Rome Statute. Notably article 143(1) recognised immunity for the President or persons performing the functions of the President during his tenure. But, in a specific excemption, article 143(4) provided that the immunity of the President under the said article would not extend to a crime for which the President could have been prosecuted under any treaty to which Kenya was party and which prohibited such immunity. Kenya was party to the Rome Statute, which prohibited immunity for a Head of State.
  23. It was a different matter, of course, for the African Union (AU) to have urged the ICC to give the elected leaders of Kenya the space to discharge their mandate in meeting the aspirations and needs of their people. That was a perfectly legitimate urge. But, it did not require immunity from prosecution for the duration of the official’s tenure of office. All that was required was for the Trial Chamber seised of the trial to consider the indulgence of excusal from continuous presence at trial, pursuant to rule 134quarter of the Court’s Rules of Procedure and Evidence.
  24. There could be no serious complaint that the mere fact of the trial was enough to deprive the 1st Respondent space. It required keeping in mind that everyone had personal obligations that they had to accommodate. The most significant difference, with a dispensation that permitted him largely to stay away and attend to his official mandate while his trial continued, lay only with the risk of conviction at the end of the trial. But the administration of justice had ways of dealing with such matters, in a manner that may have permitted an office holder, depending on the circumstances, to complete his or her tenure without undue interference by the demands of any penal sentence imposed on him.
  25. There was a real danger that such deplorable failure of the international community could recur in future, if the ICC jurisprudence was left to develop so insouciantly in the direction of requiring proof of aggregate complicity in the attack against a civilian population, for purposes of crimes against humanity. Such a prospect became normatively indefensible, given both (a) the absence of such a requirement in customary international law, according to the jurisprudence of the ad hoc tribunals who came before the ICC; and, (b) the fact that it was entirely possible to avoid such a requirement through a purposive interpretation of the Rome Statute in a manner that was also wholly consistent with correct linguistic usages in the manner explored above, that is, to the effect that it was entirely possible to construe organisational policy to mean no more than coordinated course of action.
  26. As indicated in the motif of the discussion there was concern that the requirement of proof of aggregate complicity for purposes of crimes against humanity under the Rome Statute could result in miscarriages in the administration of justice in the Court. A case could collapse, regardless of the fact of widespread or systematic attack against a civilian population and regardless of the complicity of the Accused in the attack. Victims could be fairly heard to complain of injustice with justifiable feelings in terms that could have made calling the law an ass seem wholly charitable; where the collapse of such a case resulted merely from the failure to satisfy the requirement that an aggregate entity had centrally directed the attack in which the two Accused had taken part.

Held by Judge H. Carbuccia (Dissenting)Download the Decision

  1. Pursuant to article 7 of the Rome Statute, crimes against humanity had two main contextual elements. First, the conduct had to be committed as part of a widespread or systematic attack against any civilian population. Article 7(2)(a) of the Rome Statute further described that the aforesaid attack meant a course of conduct involving the multiple commission of acts against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack. Second, the crimes against humanity required a mental element, namely that the perpetrator knew that the conduct was part of or intended the conduct to be part of the aforesaid attack, in addition to the general mens rea in article 30 of the Rome Statute.
  2. The elements of crimes; widespread or systematic attack, civilian population and knowledge of the attack gave further guidance as to the application and interpretation of article 7 of the Rome Statute, which had to be strictly construed. However, pursuant to articles 9 and 21 of the Rome Statute, the elements of crimes had to be applied and interpreted in a manner that was consistent with the Rome Statute and internationally recognised human rights. Thus, interpretation of the contextual elements of crimes against humanity had to be strictly construed, but not to the point that it would be contrary to the object and purpose of the Rome Statute or contrary to internationally recognised human rights. Thus, they could not be read as creating additional requirements or adding two legal elements of crimes, but solely as relevant and useful factors that had to be considered when trying to prove the contextual elements.
  3. As with all other crimes within the Court’s jurisdiction, there had to be a nexus between the acts of the two Accused and the attack. However, that did not mean that the criminal conduct needed to be committed in the midst of the attack, that is, the Post-Election Violence (PEV), but could be committed before or after the attack or even geographically far away from the attack, as long as it had a connection to it, explicitly or which could be inferred as forming part of the attack. The victim did not necessarily need to be part of a discriminated group and the direct perpetrators could in fact be of the same group or even part of the civilian population targeted by the attack. Thus, an adequate test could have been to analyse whether the act could have been less dangerous for the civilian victim if the attack and the underlying policy had not existed. The nexus or relationship between the conduct and the attack could ultimately have been dependent on the facts of the case, for example, whether there were similarities or connection between the acts of the two Accused and the attack; the events and circumstances surrounding the two Accused’s acts and the proximity of the Accused with the attacks not only temporal and geographical, but also ideological. The position of the two Accused in the society, and thus their ability to have an impact on the attack against the civilian population, including the ability to deter or stop it, should have also been taken into consideration.
  4. The definition of crimes against humanity had to be understood in the context of each particular case, bearing in mind that the classical relationship between a state and its citizens could not have been so clear-cut or where non-state actors played a significant role. Thus, the concept of crimes against humanity focused on the impact the attack had on the affected civilian population’s fundamental rights, namely whether the civilian population was targeted (contrary to focusing on the state or organisation behind those crimes). The concept stressed the distinctive perversion of politics underlying crimes against humanity, criminalising violations of the most fundamental human rights, regardless of whether there was a precise governmental or organisation behind them. Likewise one single act could constitute crimes against humanity if other elements of those crimes were present.
  5. Although the Network had been the centre of the Prosecution’s litigation theory, the Chamber was not bound by it. The Chamber’s findings should have been limited to the facts and circumstances described in the charges but certainly they should not have been limited by a case theory or concepts used by the Prosecution in the litigation of the case. Moreover, in cases of mass crimes like the present one, it may have been impossible to produce evidence concerning exact identities of direct perpetrators, victims, precise dates or even specific locations.
  6. Accordingly, and pursuant to article 7(2) (a) of the Rome Statute, a reasonable Chamber could have concluded that a systematic and widespread attack against the civilian population occurred pursuant to an organisational policy. The crimes had to be analysed within the context of the Rift Valley, particularly that it was a rural area. It was also important to analyse the evidence taking into consideration the ethnic divide of politics, which had already resulted in previous episodes of electoral violence in the province, as well as the historical context provided by the 2005 referendum. Turning to the nature of the attack, and particularly whether it was widespread or systematic, it was an agreed fact and there was ample evidence that there was an attack against the civilian population during the PEV. Hence, the widespread nature of the attack pursuant to article 7(2) of the Statute was unquestionable.
  7. In addition to the evidence discussed above in support of an organisational policy within the meaning of article 7(2) (a) of the Rome Statute, the Prosecution had provided evidence in support of its allegation that the attack was systematic, and thus not spontaneous. There was evidence upon which a reasonable Chamber could conclude that the attacks in the locations included in the charges followed a similar pattern that excluded the possibility of them being spontaneous and isolated acts of violence.
  8. Lastly, as regards the mental element of crimes against humanity, article 7 of the Rome Statute and the elements of the crimes required that the Accused: (a) knew of the existence of the attack; and (b) knew that his individual act formed part of the attack. It was to be noted that the mental element was different from the general mens rea required pursuant to article 30 of the Rome Statute. However, the knowledge of the attack could have been general, that is, without possessing detailed information of its specific characteristics and circumstances. That was particularly relevant for cases such as the present one, in which it was alleged that the Accused’s acts were in preparation of a forthcoming attack. Likewise, it could have sufficed to prove that the Accused knew that he was in a position to stop the attack, but deliberately and knowingly decided not to stop it, thus furthering the attack.
  9. Although there was evidence as to the 1st Accused’s leadership among the Kalenjin population, the Prosecution had not submitted evidence of a Network in a sense of a strict hierarchical organisation controlled by the 1st Accused. The theory of control over the crime could not be considered in abstract or according to a theoretical analysis. It was necessary to apply it to the specific evidence presented by the Prosecution, which in the case appeared insufficient to demonstrate that the 1st Accused, together with other high-hierarchy members of the Network, exercised complete authority over the conduct of individuals at the lower levels of the hierarchy. In fact, the evidence seemed to show that other alleged members of the group, including the elders, but also some direct perpetrators, enjoyed considerable discretion in the exercise of their functions within the group. There appeared to be insufficient evidence upon which a reasonable Chamber could establish the 1st Accused’s effective contribution to the joint control over the direct perpetrators and their almost automatic compliance, as purported by the Prosecutor.
  10. There was evidence upon which a reasonable Chamber could convict the 1st Accused under article 25(3) (b) of the Rome Statute, ordering, soliciting or inducing; or under article 25(3) (c), aiding, abetting or otherwise assisting, or under article 25(3) (d), in any other way contributing to the commission of the crime. However, a final determination on the precise mode of liability could only be made upon an evaluation of the totality of the evidence submitted in trial pursuant to article 74 of the Rome Statute.
  11. With regard to the responsibility of the 2nd Accused and according to Decision No.5 on the Conduct of Trial Proceedings (Principles and Procedure on No Case to Answer Motions) on June 3, 2014, the Prosecution had presented enough evidence upon which a reasonable Chamber could conclude that the 2nd Accused, via KASS FM and his programme Lene Emet, contributed to the commission of the crimes charged. The objective element that the contribution should have been related to a group of persons acting with a common purpose did not require that such a group be formally organised or structured. Article 25(3) (d) of the Rome Statute was a residual mode of liability, and as such, should not have been interpreted in a sense where it would require proving stricter elements as other modes of liability. Notwithstanding previous jurisprudence of the Court, the elements under article 25(3)(d) of the Rome Statute were not analogous to the elements under article 25(3)(a) of the Rome Statute.
  12. Moreover, considering that his participation could also have had elements of other modes of liability, notice would be given to the 2nd Accused pursuant to Regulation 55(2) of the Regulations of the Court, that the legal characterisation of the facts in the confirmation of the charges Decision could be subject to change to include his liability under articles 25 (3) (b) and (c) of the Rome Statute.
  13. The counts against the two Accused, namely the crimes of murder, deportation or forcible transfer and persecution, were temporally and geographically limited. Within those limits, evidence had been presented upon which a reasonable Chamber could convict the two Accused for all three counts, albeit not in respect of all geographical locations or within the totality of the time limit provided for in the charges.
  14. Other evidence submitted could have gone beyond the scope of the charges, and the Chamber could still have taken it into consideration to determine the existence of the contextual elements of the crimes against humanity, particularly the requirement of the organisational policy pursuant to article 7(2)(a) of the Rome Statute. Some of the incidents challenged by the Defence which could not have been directly linked to the two Accused could nevertheless have been relevant to determine the context in which the alleged crimes were committed. Other incidents could be relevant to prove the two Accused persons’ position within the Network and their contribution to the organisational policy.
  15. The 1st Accused’s Defence Motion for acquittal and the 2nd Accused’s Defence Motion for a no case to answer should have been rejected.

Charges vacated.

i The proceedings were declared a mistrial due to a troubling incidence of witness interference and intolerable political meddling;

ii. The charges were thereby vacated and the Accused discharged from the process, without prejudice to their presumption of innocence or the Prosecutor’s right to re-prosecute the case at a later time;

iii. The Victims were to be invited to express views and concerns in relation to reparation or assistance in lieu of reparation.

iv. The Prosecution requests for legal re-characterisation of the charges were denied.

 

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