A pre-trial chamber of the International Criminal Court (ICC) announced it’s decision this week confirming the charges against four of the six persons indicted for crimes against humanity in post election violence in Kenya.
The case has had some unusual turns. Kenya originally supported the investigation, but when government officials were indicted, argued the case should go back to Kenya for investigation and charges. The court decided that the cases should go forward, and that Kenya did not have the infrastructure or means to ensure fair trials.
At the confirmation of charges hearing, one accused, Uhuru Kenyatta, took the unusual step of testifying in his defense. His testimony apparently did not convince the judges to dismiss the charges, as his case was continued for trial.
The four whose charges were confirmed are: Deputy Prime Minister Uhuru Muigai Kenyatta; Head of Public Service Francis Kirimi Muthaura; former Cabinet Minister William Samoei Ruto; and radio journalist Joshua arap Sang.
Dismissed from the cases were: former police commissioner Maj. Gen. Mohammed Hussein Ali, and former Minister of Industrialization Henry Kiprono Kosgey. In many African media outlets, the six indictees have been referred to as the “Ocampo Six” a reference to Luis Moreno-Ocampo, prosecutor of the ICC.
Judge Hans Peter Kaul dissented from the decision, arguing that the cases do not belong at the ICC and do not come under the jurisdiction of the statute. He said this in the Ruto, Kosgey and Sang case:
I am unable to accept this decision of the Majority and the analysis that
underpins it. I continue to believe that the International Criminal Court (the
“ICC” or the “Court”) lacks jurisdiction ratione materiae in the situation in the
Republic of Kenya, including in the present case. Contrary to the Majority’s
findings, I am not satisfied that the crimes, for which Mr Ruto and Mr Sang are
held accountable pursuant to articles 25(3)(a) and 25(3)(d) of the Rome Statute
(the “Statute”) respectively, occurred pursuant to or in furtherance of a policy of
an organization within the meaning of article 7(2)(a) of the Statute. Thus, I am not
satisfied that the crimes charged constitute crimes against humanity as set out in
article 7 of the Statute.
That said, and while I do not question that abhorrent crimes, as described in
the amended document containing the charges, have been committed, my doubts
pertain to their correct qualification. Consequently, my principled disagreement
with the Majority centres on the question of whether the ICC is the right forum
before which to investigate and prosecute those crimes.
Judge Kaul made similar points in his dissent in the case against Keyatta, Muthaura and Ali, questioning not just admissibility, but whether or not the actions of “the Mungiki gang” constitute the actions of “an organization” within the meaning of the Statute. Judge Kaul argues that finding such a gang responsible for crimes against humanity leaves the court open to the obligation of prosecuting organized crime world wide.
Judge Kaul’s dissents raise many interesting points, about the thoroughness of the review at a confirmation of charges hearing, the defense right to present a defense at such a hearing, the defense right to challenge admissibility, the prosecution’s duty to investigate exculpatory information, and the presumptions of the court in determining whether or not to confirm charges. How the court addresses those criticisms may well shape it going forward.
The court uses an escalating standard of review, reasonable cause to indict, probable cause to confirm the charges, and proof beyond a reasonable doubt to convict at trial.