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The International Court of Justice Findings on the Kenyan Situation

On 23rd January 2012 the pre-trial judges at the International Criminal Court confirmed charges against four of the six Kenyan suspects claimed to have played the biggest role in the 2007/ 2008 post-election violence that took the country to the precipice of civil war. In a majority decision, the judges confirmed charges against the Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, Head of Civil Service Francis Muthaura (as they were then) and journalist Joshua arap Sang. Charges against Tinderet MP Henry Kosgey and former Police Commissioner Hussein Ali were not confirmed after the Judges found insufficient grounds for sustaining them.

Judges Ekaterina Trendafilova and Cuno Tarfusser voted to the affirmative while Judge Hans-Peter Kaul dissented. In particular, pre‐Trial Chamber II confirmed the charges against Mr. Ruto as an indirect co‐perpetrator with others, while it found that Mr. Sang contributed to the commission of said crimes against humanity. However, in relation to Mr. Kosgey, the Chamber found that the Prosecutor’s evidence failed to satisfy the evidentiary threshold required. The evidence presented by the prosecutor of Mr. Kosgey’s alleged role within the organization did not persuade the Chamber.

With respect to the criminal responsibility of Mr. Muthaura and Mr. Kenyatta, the Chamber was satisfied that the evidence also established substantial grounds to believe that they were criminally responsible for the alleged crimes having gained control over the Mungiki and directed them to commit the crimes. However, in relation to Mr. Ali, the Chamber found that the evidence presented did not provide substantial grounds to believe that the Kenya Police participated in the attack in or around Nakuru and Naivasha. Since Mr. Ali was charged with contributing to the crimes through the Kenya Police, the Chamber declined to confirm the charges against him.

ICC Prosecutor Moreno – Ocampo accused Mr Ruto and Mr Kosgey of planning attacks against PNU supporters as far back as December 2006. The prosecutor claimed that Mr Sang used his radio programme to collect supporters and provide signals to members of the plan on when and where to attack. William Ruto, Henry Kosgey and Joshua arap Sang each faced charges of murder, deportation or forcible transfer of the people, causing serious injury and persecution based on political affiliation. Mr Moreno-Ocampo, in his application to the court, claimed that in response to the attacks, three “prominent PNU members and/or Government of Kenya officials Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali developed and executed a plan to attack perceived ODM supporters in order to keep the PNU in power.

Judge Kaul appended a dissenting opinion in both cases. He maintained that the ICC was not competent because the crimes committed on the territory of the Republic of Kenya during the post‐election violence of 2007‐2008 in his view were serious common crimes under Kenyan criminal law, but not crimes against humanity as codified in Article 7 of the Rome Statute

Dissenting Opinion – per Justice Hans-Peter Kaul

Although the Pre-Trial Chamber of the International Criminal Court (ICC) made a majority decision to indict Mr.Ruto, Mr.Sang, Mr.Muthaura and Mr.Kenyatta over the 2008 post-election violence Justice Hans-Peter Kaul was of the opinion that the two cases did not warrant the intervention of the war crimes court.

Judge Kaul penned a dissenting opinion from the majority ruling by Judges Ekaterina Trendafilova and Cuno Tarfusser committing to trial four Kenyans and acquitting two others accused of having the greatest responsibility in organising the poll violence that claimed more than 1,300 people and displaced nearly half a million others.

Judge Kaul issued dissenting opinions throughout the process of considering the Kenyan case. He first disagreed with his colleagues in the Pre-Trial Chamber II as to whether the Kenya situation met the threshold to be handled by the ICC and again declined to rule in favour of the issuance of summonses against the six Kenyan suspects, maintaining that although the evidence tabled showed clearly that crimes had been committed in Kenya he did not consider them sufficient to be subjected to the ICC process.

Judge Kaul also issued a dissenting opinion on the confirmation of charges, basing his arguments on his first ruling. In his decision to dissent against confirmation against Kenyatta and Muthaura, judge Kaul said:

“I remain convinced and reiterate that the crimes and atrocities described by the prosecutor in the amended document containing the charges concerning Mr Muthaura and Mr Kenyatta fall within the competence of the Kenyan criminal justice authorities as a matter to be investigated and prosecuted under Kenyan criminal law forthwith,” Judge Kaul said adding “I join the victims participating in this case in their desire to see justice delivered.”

In his ruling, the judge was however quick to point out that his dissent to the majority’s decision was not be misconstrued as any determination on his part as to the commission of crimes in the Republic of Kenya during the 2007/2008 post-election violence. He said the ICC lacked jurisdiction rationae materiae in the present case. In his critical analysis of the Kenyan cases presented to the pre-trial chamber by Prosecutor Luis Moreno-Ocampo, the judge particularly felt that the six suspects presented before them could have been tried under national laws in Kenya.

He thus, concluded in his ruling that Ocampo did not present sufficient evidence to sustain charges against the Kenyans he wanted tried in The Hague, Netherlands.

In the case of Ruto, Kosgey and Sang, the judge raised what, in his opinion, were fundamental issues about the notion of the “organization” as advanced by Ocampo. The defence, in his opinion, failed to make the assessment of facts a precondition to the interpretation of the notion “organizational policy”,” he observed. At all events, Judge Kaul said, any assessment of facts logically implied that the court interpret the law first. In this respect, he observe that the majority decision addressed the defence arguments in the context of the applicable law relating to the notion of an ‘organization’ without addressing the issue of insufficiency of evidence, thus disentangling the defence arguments.

He totally disagrees with fellow judges Trendafilova and Tarfusser on the fundamental issues raised by the defence, particularly during the confirmation of charges hearing.

Rights of the defence

The dissenting judge also appears to have had a problem with Mr. Ocampo’s persistent demand opposing in depth examination of the prosecution evidence. He felt that the chamber should accept as dispositive the (prosecutor’s) evidence, so long as it was relevant, leaving any analysis of the evidence to the Trial Chamber. He was also firmly convinced that a proper understanding of these rights, especially in light of the purpose of pre-trial proceedings, was of fundamental importance not only in the present case but also in future pre-trial proceedings. Such a proper understanding was indispensable for sound and fair decisions on the confirmation of charges pursuant to article 61 of the Statute.

It was his opinion therefore that it was the duty of the prosecutor to conduct any investigation ab initio as effectively as possible with the unequivocal aim to assemble as expeditiously as possible relevant and convincing evidence which will enable ultimately the Trial Chamber to consider whether criminal responsibility is proven ‘beyond reasonable doubt’.

Mungiki involvement

Unlike the two other judges, Kaul was not convinced, at all, that Mungiki can qualify overall as an ‘organisation’ within the meaning of article 7(2)(a) of the Statute. He had maintained the same opinion in his earlier dissenting opinion issued on March 15, 2011.

In his analysis, the Mungiki, like many other criminal gangs in Kenya or elsewhere, remain a somewhat structured, outlawed, violent criminal gang engaged in organised crime and deriving revenues from the illegal provision of certain community services to the local population, mainly in the slums of Nairobi.

“In light of the foregoing, I take the view that the Mungiki cannot qualify as an ‘organisation’ within the meaning of article 7(2)(a) of the Statute. Accordingly, they fall outside the scope of the Statute,” he again wrote in his dissenting opinion Monday.

“The foregoing leads me to conclude that had the Kenyan police allegedly not abstained, had the Mungiki not received money, uniforms and weapons, and had they not been transported to different parts of the country, they would not have been able to launch the alleged large-scale attack against Kenyan civilians over a large geographical area,” he said.

“Even if, arguendo, the Mungiki “relied on external funding” in the “commission of particular crimes”, their need for financial support, regardless of its extent, shows that they do not have sufficient means to commit crimes on a large scale. Therefore, I am at pains to understand how this ‘organisation’, heavily dependent on outside logistical support, could satisfy the criteria I set out in my 31 March 2010 dissenting opinion to the extent of qualifying as a State-like ‘organisation’ or any other ‘organisation’ with the capability, including the means, to target the civilian population on a large scale,” he ruled.

More importantly, he said, in light of the majority’s finding excluding the Kenyan police from the ‘organisation’, I have serious doubts whether, having been deprived of the second pillar in the ‘organisation’ structure, the Mungiki could have launched on their own a widespread or systematic attack against civilians, as the Prosecutor maintains.

The judge was not convinced that Mungiki and the Kenya police had what the prosecutor describes as State-like ‘organisation’ for them to have committed large scale atrocities in the country.

Muthaura, Kenyatta and Ali were accused of crimes against humanity which include murder, deportation or forcible transfer, rape and other forms of sexual violence, other inhumane acts and persecution.

Muthaura and Kenyatta had been cited as indirect co-perpetrators, while Ali was named as having contributed to the said alleged crimes against humanity.

On the other hand, the prosecutor accused Ruto, Kosgey and Sang, for crimes against humanity of murder, deportation or forcible transfer and persecution.

Ruto and Kosgey were named as indirect co-perpetrators, while Sang was cited as having contributed to the said crimes against humanity.

The African Scene

Former Liberian President Charles Taylor

In a landmark ruling, the ICC found former Liberian President Charles Taylor guilty of aiding and abetting war crimes in Sierra Leone’s notoriously brutal civil war. It was the first war crimes conviction of a former head of state by an international court since the Nuremberg trials of Nazi leaders after World War II.

Prosecutors, however, failed to prove that Taylor had direct command over the rebels who committed the atrocities. A three-judge panel issued a unanimous decision that Taylor, 64, was guilty on all 11 counts of the indictment against him. The judges found him guilty of aiding and abetting rebel forces in a campaign of terror that involved murder, rape, sexual slavery, conscripting children younger than 15 and mining diamonds to pay for guns.

Sudanese President, Hassan Ahmad AL BASHIR

ICC Prosecutor Luis Moreno-Ocampo presented evidence showing that Sudanese President, Omar Hassan Ahmad AL BASHIR committed the crimes of genocide, crimes against humanity and war crimes in Darfur. The Prosecution evidence shows that Al Bashir masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity. Members of the three groups, historically influential in Darfur, were challenging the marginalization of the province; they engaged in a rebellion. AL BASHIR failed to defeat the armed movements, so he went after the people. “His motives were largely political.  His alibi was a ‘counterinsurgency.’  His intent was genocide. ”

The International Criminal Court issued an arrest warrant for war crimes allegedly committed by Mr. Al-Bashir marking the third to arise from the situation in Darfur. In May 2008, the pre-trial chamber had issued arrest warrants for Ahmad Harun, former Sudanese Minister of State for the Interior and now the Minister of State for Humanitarian Affairs, and Ali Kushayb, a Janjaweed leader.

Former Cote d’Ivoire President Laurent Gbagbo:

On 2 November 2012, Pre-Trial Chamber I of the International Criminal Court (ICC) decided that Mr Laurent Gbagbo was fit to take part in the proceedings before the Court. Consequently, the judges will soon set a date for the confirmation of charges hearing in the case. The International Criminal Court has also issued an arrest warrant for the wife of Laurent Gbagbo, Ivory Coast’s former president, saying she played a role in helping her husband orchestrate election violence that killed 3,000 people.

Overview of ICC Investigations in Africa

Name C Indicted G H W Cc Transferred
to the ICC
Status as at January 2013
Joseph Kony UG 8 July 2005 12 21 Fugitive
Raska Lukwiya UG 8 July 2005 1 3 Died on 12 August 2006; proceedings terminated on 11 July 2007
Okot Odhiambo UG 8 July 2005 3 7 Fugitive
Dominic Ongwen UG 8 July 2005 3 4 Fugitive
Vincent Otti UG 8 July 2005 11 21 Fugitive; reported to have died on 2 October 2007
Thomas Lubanga Dyilo DRC 10 Feb 2006 3 17 March 2006 Appealing sentence of 14 years’ imprisonment
Bosco Ntaganda DRC 22 Aug 2006 3 7 Fugitive
Ahmed Haroun SUD 27 April 2007 20 22 Fugitive
Ali Kushayb SUD 27 April 2007 22 28 Fugitive
Germain Katanga DRC 2 July 2007 4 9 17 October 2007 Trial began on 24 November 2009
Mathieu Ngudjolo Chui DRC 6 July 2007 4 9 6 February 2008 Acquittal pending appeal (released on 21 December 2012)
Jean-Pierre Bemba DRC 23 May 2008 3 5 3 July 2008 Trial began on 22 November 2010
Omar al-Bashir SUD 4 Mar 2009 3 5 2 Fugitive
Bahr Abu Garda SUD 7May 2009 3 Summoned Charges dismissed on 8 February 2010
Abdallah Banda SUD 27 Aug 2009 3 Summoned Case in pre-trial stage
Saleh Jerbo SUD 27 Aug 2009 3 Summoned Case in pre-trial stage
Callixte Mbarushimana RWA 28 Sept 2010 5 6 25 January 2011 Charges dismissed on 16 December 2011 (released on 23 December 2011)
Mohammed Ali KEN 8 Mar 2011 5 Summoned Charges dismissed on 23 January 2012
Uhuru Kenyatta KEN 8 Mar 2011 5 Summoned Case in pre-trial stage
Henry Kosgey KEN 8 Mar 2011 3 Summoned Charges dismissed on 23 January 2012
Francis Muthaura KEN 8 March 2011 5 Summoned Case in pre-trial stage
William Ruto KEN 8 Mar 2011 3 Summoned Case in pre-trial stage
Joshua Sang KEN 8 Mar 2011 3 Summoned Case in pre-trial stage
Muammar Gaddafi LIB 27 June 2011 2 Died on 20 October 2011; proceedings terminated on 22 November 2011
Saif al-Islam Gaddafi LIB 27 June 2011 2 Arrested in Libya on 19 November 2011
Abdullah Senussi LIB 27 June 2011 2 Arrested in Mauritania; transferred to Libya on 5 September 2012
Laurent Gbagbo IC 23 Nov 2011 4 30 November 2011 Case in pre-trial stage
Simone Gbagbo IC 29 Feb 2012 4 Arrested in Côte d’Ivoire on 11 April 2011
Abdel Rahim Hussein SUD 1 Mar 2012 7 6 Fugitive
Sylvestre Mudacumura RWA 13 Jul 2012 9 Fugitive

C         – Country

G         – Genocide

H          – Crimes against Humanity

W         – War crimes

Cc       – Contempt of court

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