O’Campo Loses Interlocutory Appeal

Today April 1st 2010, Judge Ekaterina Trendafilova rejected the Prosecutor’s Interlocutory Appeal from the March 8, 2011 decision declining to issue summonses with respect to allegations of crimes against humanity that occurred in Kisumu town, Kibera in Nairobi, Naivasha and Nakuru during post election violence in early 2008.

Judge Trendafilova found that the Prosecutor failed “to plead that the conduct of the Police [shootings etc] was part of a State policy.” Further the Judge found that the Prosecutor had failed to provide “reasonable grounds to attribute these events to the suspects” and as such the Chamber could not have proceeded to analyze those events to establish if they qualified as crimes against humanity under the Rome Statute. Para. 13.

Judge Trendafilova noted that simply because Muthaura, (Head of Civil service) Kenyatta (cabinet minister) and/or Ali (Commissioner of Police) were State agents was insufficient under the Statute to charge them “with establishing, participating in or contributing to a policy,” since they “can only be charged with the crimes committed in the context of a widespread and systematic attack against the civilian population carried out pursuant to or in furtherance of a State or organizational policy” Para 18. The Judge emphasized that knowledge on the part of the person charged that s/he was ‘part of a widespread or systematic attack against a civilian population in furtherance of a State or organizational policy’ was what was important – not that the policy pursuant to which the attack was carried out was attributable to such a person. Id.

The Judge rejected the Prosecutor’s argument that the Pre-Trial Chamber was effectively acquiescing to impunity by failing to reinstate those charges. The Judge noted that the Kenyatta, Ali and Muthaura had already been issued summonses with reference to commission of crimes in Naivasha and Nakuru for “using their authority over the Kenyan Police and thus by virtue of their position with the State apparatus” as well as with regard to systematic attacks “carried out pursuant to the organizational policy of the Mungiki,” at Para. 19.

The Judge further dismissed the Prosecutor’s argument that his discretion had been undermined and the fairness of the trial impugned by the Chamber’s re-characterization of acts of forcible circumcision as ‘inhuman acts’ rather than as ‘other forms of sexual violence.” The Judge observed that with ‘sufficient evidence to meet the evidentiary standard as required by article 61(7) of the Statute,” it was still open for the Prosecutor to bring the charges as he would have wanted.


The Prosecutor has lost this initial skirmish. This appeal and its dismissal clearly delineate some of the major legal issues that the defense is likely to raise with regard to related charges once confirmed by the Pre-Trial Chamber in the next week particularly in this case involving suspects who were officials in the Kenyan government. So whereas in the other Kenyan case, issues involving non-state actors loom large, here the Judge strongly suggested that the Pre-Trial Chamber is uncomfortable with concluding that the mere involvement of State actors in crimes against humanity necessarily means that there was a State policy.

For the ruling see here.

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