International Criminal Court Announces Indictments in Kenya

Pre-Trial Chamber II of the International Criminal Court (ICC) today announced the indictments in the post-election violence in Kenya.  The court has combined the cases into two indictments with three accused each.

The court issued an indictment against William Samoei Ruto,  a suspended Minister of Higher Education, Science and technology of the Republic of Kenya; Henry Kiprono Kosgey,   Minister of Industrialization of the Republic of Kenya and the Chairman of the
Orange Democratic Movement; and Joshua Arap Sang,  head of operations at Kass FM in Nairobi.

The court found:

reasonable grounds to believe that Ruto and Kosgey are criminally responsible as indirect co-perpetrators (i.e., committing crimes through another person(s)) in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer and persecution.

The Pre-Trial Chamber II was satisfied that there were reasonable grounds to believe that Sang otherwise contributed to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute.

The court did not find reasonable cause to for an additional count requested by the prosecutor, Torture.  The court issued a summons for the three, requiring that they appear before the court on April 7.  The court’s order is available here.

An interesting addition to the discussion was the court’s determination that the prosecutor had claimed two modes of liability for the accused:

as co-perpetrators, or in the alternative” as
falling under article 25(3)(d) of the Statute. Later, under the section on modes of
liability, the Prosecutor alleged that the three persons’ criminal responsibility fits as
“indirect co-perpetrators, or in the alternative, as co-perpetrators” or as common
purpose liability under article 25(3)(d) of the Statute.
36. Although the Prosecutor may generally charge in the alternative, he should be
consistent throughout his Application about the actual mode(s) of liability that he
intends to present to the Chamber. Moreover, the possibility for the Prosecutor to
charge in the alternative does not necessarily mean that the Chamber has to respond
in the same manner. In particular, the Chamber is not persuaded that it is best
practice to make simultaneous findings on modes of liability presented \ in the
alternative. A person cannot be deemed concurrently as a principal and an accessory
to the same crime. Thus, it is the Chamber’s view that an initial decision has to be
made on the basis of the material provided, as to whether there are reasonablegrounds to believe that Ruto, Kosgey and Sang bear criminal responsibility for the
crimes against humanity that occurred in the specific locations in the Republic of
Kenya, as discussed in section II above, either as co-perpetrators, indirect coperpetrators,
or any other form of liability presented or that the Chamber finds
appropriate.

The court also issued a summons for the appearance of: Francis Kirimi Muthaura,  Head of the Public Service and Secretary to the Cabinet of the Republic of Kenya; Uhuru Muigai Kenyatta,  Deputy Prime Minister and Minister for Finance of the Republic of Kenya; and Mohammed Hussein Ali, Chief Executive of the Postal Corporation of Kenya.

The court found:

reasonable grounds to believe that Muthaura and Kenyatta are criminally responsible as indirect co-perpetrators in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts.

The Chamber was satisfied that there were reasonable grounds to believe that Ali otherwise contributed to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute.

The decision in this case is available here.

In both cases, Judge Hans Peter Kaul dissented, though he has yet to issue a written position.