ICC Issues Summons For All Six Kenyan Suspects: Dissent Expected From Judge Kaul

In two rulings dated March 8, 2011, the Pre-Trial Chamber II has issued its ruling allowing issuance of Summonses to Appear for six Kenyans in two cases  sought by ICC Chief Prosecutor Moreno O’Campo.

Pursuant to these two rulings, these six Kenyans will now receive summonses from the Court pursuant to Article 58(7) of the Rome Statute.

See rulings here and here

Both decisions were decided by a majority of two of the three judges. Judge Kaul who dissented in the initial ruling granting the Prosecutor permission to commence an investigation is scheduled to ‘issue a dissenting opinion in due course.” Judges Ekaterina Trendafilova and Cuno Tarfusser wrote the two rulings. In both cases, the Chamber declined to rule on admissibility reserving that to a different phase of the proceedings.

The only issue that the Chamber confined itself to deciding is whether there were reasonable grounds to believe that one or more of the crimes

On admissibility, the Chamber noted with reference to the first case that the Prosecutor had presented information suggesting that were reasonable grounds to believe that Counts 1,2 and 4 of the Application had been committed in the first case against William Ruto, Henry Kosgei and Joshua Arap Sang.

In this case, the Prosecutor had alleged that the three person had committed the following offences:

  • Count 1: murder constituting a crime against humanity (Article 7(1)(a) and Article 25(3)(a) or (d) of the Statute);
  • Count 2: Deportation or forcible transfer of population constituting a crime against humanity (Article 7(1)(d) and Article 25(3)(a) or (d) of the Statute);
  • Count 3: Torture constituting a crime against humanity (Article 7(1)(f) and Article 25(3)(a) or (d) of the Statute; and
  • Count 4: Persecution as a crime against humanity (Article 7(1)(h) and Article 25(3)(a) or (d) of the Statute).

Quite notably, in this case the Chamber observed that it was “satisfied that there are reasonable grounds to believe that the attack against the civilian population was committed pursuant to an organizational policy” in various parts of the Rift Valley (Para 20) and that a network of perpetrators including the suspects ‘possessed the means to carry out a widespread or systematic attack against the civilian population” (Para 24). Ultimately the Chamber found that the “contextual elements for crimes against humanity alleged by the Prosecutor’s Application have been satisfied,” (Para. 29)

However, the Chamber was skeptical that the Prosecutor had presented sufficient material to establish reasonable grounds to believe that acts of torture as a crime against humanity were committed (Para. 33)

In addition, the Chamber found it had “no reasonable grounds to believe that Sang (the radio-broadcaster) is criminally responsible as a principle… with Ruto and Kosgey for…crimes against humanity.” (Para. 38). For Sang, the Chamber noted that it is satisfied on the material before it that “there are reasonable grounds to believe that his role is best characterized under Article 25(3)(d) of the Statute.” (indirect co-perpetrator) (Para 38 and Para. 53).

The Chamber noted that on the basis of the material presented, there were reasonable grounds to believe that William Ruto as ‘the most representative Kalenjin leader and head of the organization established –together with Kosgey was responsible for the overall plan and its implementation in the Rift Valley; and that the plan constituted creating perpetrators; purchasing guns and crude weapons; giving instructions to perpetrators to support implementation of the plan – including killing, displacement of people and destruction of property. (Para 42). The Chamber noted that on the information it had Kosgey was equally culpable and that he “was in charge of managing the financial resources of the organization for the purpose of implementing the common plan.” (Para 43).

In the second case involving Francis Muthaura, Uhuru Kenyatta and Mohammed Hussein Ali, the Chamber allowed summonses to issue against all three for all five counts for crimes against humanity as alleged by the Prosecutor (albeit with limitations as the localities where the crimes were allegedly committed).

The five counts in this case are:

  • Count 1: murder constituting a crime against humanity (Article 7(1)(a) and Article 25(3)(a) or (d) of the Statute);
  • Count 2: Deportation or forcible transfer of population constituting a crime against humanity (Article 7(1)(d) and Article 25(3)(a) or (d) of the Statute);
  • Count 3: Rape and other forms of sexual violence constituting a crime against humanity (Articles 7(1)(g) and 25(3)(a) or (d) of the Statute
  • Count 4: Other inhumane acts constituting a crime against humanity (Article 7(1)(k) and Article 25(3)(a) or (d) of the Statute; and
  • Count 5: Persecution as a crime against humanity (Article 7(1)(h) and Article 25(3)(a) or (d) of the Statute.

Notably, the Chamber found that on the basis of the material presented to it, the Mungiki criminal organization operated as ‘a large and complex hierarchical structure featuring various levels of command and a clear division of duties in the command structure…[with] a trained military wing” and that it qualified as an organization under Article 7(2)(a) of the Statute. (Para. 22). Kenyatta and Muthaura, were according to the Chamber on the basis of the material presented to it, in a common plan with Mungiki to commit the alleged crimes for the ‘purpose of keeping PNU [President Kibaki’s party] in power and in return Mungiki would be free from government repression and Mungiki interests would receive government protection. (Para 37). Further, the Chamber noted that the material presented to it showed both Kenyatta and Muthaura had control over Mungiki, that they financed Mungiki and that Mungiki members almost automatically complied with Kenyatta’s orders. (Paras 40-41). With regard to Ali, the Chamber noted that the material before it indicated he had acted on the instructions of Muthaura to order the Kenya Police not to respond to the crimes being committed by Mungiki. (Para 49).

Since the Prosecutor had not alleged that the absence of police intervention in the violence showed the existence of a State policy by abstention, the Chamber did not entertain the issue without prejudice to revisiting it in future based on further submissions. (Para. 24).

The Chamber did not agree with the Prosecutor that ‘other forms of sexual violence’ in Article 7(1)(g) of the Statute contemplates acts of forcible circumcision. (Para. 27).

With respect to both cases, the Court found that the issuance of arrest warrants is unnecessary since none of the persons against whom summonses were ordered to be issued were flight risks and there was nothing that currently indicated they would evade personal service of the summons or refrain from cooperating if summoned to appear.

Finally:

This is an unprecedented victory for O’Campo for a number of reasons. First, with the exception of one count in case no. 1, the Chamber sustained all the other counts against all the six Kenyans. The only downside is that O’Campo has yet to convince Judge Kaul who dissented in the application to investigate and who is now expected to issue a dissent on the issuance of summonses. This is an important case as it represents the first time the Prosecutor has successfully made an application to investigate a situation and then successfully made an application for summonses.

Second, Kenya presents an unprecedented opportunity for the Court and the Prosecutor to demonstrate the scope of the ICC’s authority over a situation in a country not in turmoil unlike other situations like the Democratic Republic of Congo, Sudan or even northern Uganda. As O’Campo has argued, a major reason for taking this case up is to prevent recurrence of post-election violence in 2012 in Kenya and any time thereafter. As a result of the successful application to investigate the Kenyan situation, there is already an effort to have the Prosecutor investigate 90 killings of anti-government (red shirts) protestors in Thailand following the Kenyan precedent even though Thailand is a party to the Rome Statute.  On that see here and here

Third, the issuance of the summonses against the six Kenyans continues to fortify the case that Kenya has not shown the slightest indication of seriousness to try these six Kenyans, or any others for that matter, for the offences committed in early 2008. By ordering summonses be issued, the Chamber may have effectively shut the door to Kenya’s deferral bid – if there was ever any doubt that the deferral bid was meritless.

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One Response to ICC Issues Summons For All Six Kenyan Suspects: Dissent Expected From Judge Kaul

  1. […] Notably, Pre-Trial Chamber II in issuing the summons on March 8, 2011 declined to rule on the admissibility of the two Kenyan cases as noted in a previous post.   […]

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