ICC Confirms Charges Against Four of the “Ocampo Six”

By | Published January 25, 2012

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.

 

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Kenyatta Testifies at Confirmation of Charges Hearing

By | Published October 6, 2011

Kenya’s Deputy Prime Minister, Uhuru Kenyatta,  testified in his defense in the Kenya case at the International Criminal Court (ICC) in The Hague.  Kenyatta is one of the six indicted by the ICC for crimes against humanity in the post-election violence of 2007.  They are known in Kenya as the Ocampo six, meaning the six indicted by the prosecutor of the ICC, Luis Moreno-Ocampo.

The case has had a bit of a history, first Kenya supported the idea of the ICC taking on the case, suggesting their institutions could not handle it, then arguing that with new laws, Kenya could take the cases and there was no need for the ICC to handle them.  So far, the court has determined that the cases remain admissible, meaning within the jurisdiction of the court.

This may become a case which clarifies the doctrine of Complementarity.  Complementarity is an important safeguard of sovereignty, and at least one one reason that 118 nations have now ratified the treaty.  The court may investigate and prosecute cases only if prosecution cannot or will not occur at a national level.

The Kenya case is at a confirmation of charges stage, similar to a probable cause hearing.  The court is to determine uses escalating standards of proof: “reasonable grounds to believe” at the warrant stage, “substantial grounds to believe” at the confirmation of charges stage and “beyond reasonable doubt” for a conviction at trial. The court must now determine if there are substantial grounds to believe the accused committed crimes within the jurisdiction of the court. It is unusual for an accused to testify at this stage, a summary of Kenyatta’s testimony is available here.  He is the first person to testify in his own defense at an ICC confirmation of charges hearing. Video of his testimony is available here.

The defense has also raised the question of admissibility, arguing the case does not belong at the ICC.

 

 

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Kenya Cases Remain Admissible

By | Published June 1, 2011

The International Criminal Court (ICC) has overruled the objections of Kenya and found that the post-election violence cases remain admissible (within the jurisdiction of the court).  A detailed discussion of the ruling, and the case, is available here.  Kenya has announced that it plans to appeal.

The ruling is a significant test of the issue of complementarity. A founding principle of the court, complementarity means that the court can only pursue cases that are not capable of, or were not adequately pursued in national courts.  Kenya had initially cooperated with the investigation, but then argued the cases were now capable of being resolved in national courts.

The court found that the Government of Kenya had not shown that there were open cases involving the six officials detained by the court.  Rather the government argued that there had been reforms in its judicial system and the cases could proceed.  The court determined that in the absence of actual open prosecutions of the six accused:

… the Chamber considers that there remains a situation of inactivity. Consequently, the
Chamber cannot but determine that the case is admissible following a plain reading
of the first half of article 17(l)(a) of the Statute. It follows that there is no need to
delve into an examination of unwillingness or inability of the State, in accordance
with article 17(2) and (3) of the Statute.

The argument over inadmissibility will likely remain ongoing as the case proceeds.

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Kenya Asks ICC to Drop Cases

By | Published April 7, 2011

The Government of Kenya has made an application to the International Criminal Court, (ICC)to withdraw the case against six senior government ministers for orchestrating post-election violence in 2007.   In a case which could define the issue of complentarity, the Government of Kenya says it now has the means to try these cases in it’s national courts and no longer needs the assistance of the ICC.

In March, Pre-Trial Chamber II of the ICC issued summonses: 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; and 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.

In it’s submission the government argues that a new constitution and other changes made in 2010:

The new Constitution incorporates a Bill of Rights which significantly
strengthens fair trial rights and procedural guaiantees^ within the Kenyan
criminal justice system,

The Constitution gives effect to a comprehensive range of judicial reforms
which fundamentally transform the administration of justice in Kenya.
Deficiencies and weaknesses from the past have been specifically targeted to
guarantee the independent and impartial dispensation of justice.
National courts will now be capable of trying crimes from the post-election
violence, including the ICC cases, without the need for legislation to create a
special tribunal, thus overcoming a hurdle previously a major stumbling block,
The new Constitution guarantees the independence of the State’s investigative
organs and ushers in wide-ranging reforms to the police services.

An independent Commission for the Implementation of the Constitution is
established to monitor, facilitate and oversee the development of legislation
and administrative procedures required to implement the Constitution,

Kenya argues the case is now inadmissible, meaning the ICC has no jurisdiction over the case.  The ICC was created by the Treaty of Rome and a major point of the court is something called “complementarity.”  Complementarity means the court complements rather than supplants national court systems.  The ICC can act only if the national authorities with jurisdiction to prosecute the court can not or will not prosecute or even investigate.  Having first said it could not prosecute, can Kenya now prosecute and withdraw the case from ICC jurisdiction?  Does a newly found will to prosecute render a case inadmissible before the court?

The ICC prosecutor delivered a list of 20 names to the pre-trial chamber in March, 2010.  From this information, the court announced its summonses to six persons last month.  Three of those six appeared at the ICC today, Kosgey, Ruto and Sang.  They are charged with war crimes

This case presents a real test of the complementarity of the court as a concept.  Is a case admissible only as long as the government agrees that it is?  Or having once agreed, can the country not retract the case?  Kenya argues that since it is now possible to guarantee fair trials of the accused they belong in Kenyan courts.  Kenya also argues that its government rejected an overwhelming (“near-unaminous” in its argument to the court) vote of the parliament to withdraw from the ICC. The government has withstood the popular sentiment so far, but apparently fears for its stability if this issue is not resolved.

The ICC has been in existence since 2002, none of these issues have come up before and it is not clear what the court will do with the cases.  It seems likely the court would seek to defend its turf and find that if the case was admissible when submitted to the chamber, it remains admissible even if conditions in the country where the incidents occurred has changed and can now prosecute.  If so, would Uganda be able to withdraw the indictments against its rebels who later join with the government? There are many questions to be answered in this case.

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International Criminal Court Announces Indictments in Kenya

By | Published March 8, 2011

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.

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Updates on Kenya Cases at the ICC

By | Published December 11, 2010

The Voice of America (VOA) has posted an article about the International Criminal Court (ICC) indictments in the post-election violence in Kenya arguing the Office of the Prosecutor (OTP) will have problems delivering the indictments by December 17 as previously announced.  The VOA says that the OTP is having difficulty in getting the statements of security chiefs who are insisting they should give their statements to Kenyan judges not to OTP investigators.

The ICC has exercised jurisdiction over the 2008 post-election violence in Kenya with the approval of the Kenyan government.  The current difficulties indicate that there is at least some dissent in Kenya, and many think the prosecutions should occur in Kenya and not in The Hague.

The Episcopal Church in Kenya has urged cooperation with the ICC.  Reuters reports the OTP remains on schedule to issue indictments against at least six accused in the next week.

The ICC has jurisdiction to investigate and prosecute crimes against humanity, war crimes and genocide in the 114 countries that have ratified the ICC treaty, or committed by their nationals if those crimes can not or will not be prosecuted by national authorities.  Kenya has accepted that crimes within the jurisdiction of the court occurred in  Kenya in 2008 and invited the court’s investigation.  People who were harmed as victims in the post-election violence may be eligible to participate in the cases as victims and ultimately seek reparations from those convicted or from the Trust Fund for Victims.

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Fourth DRC Suspect Arrested in France

By | Published October 11, 2010

The fourth person accused of war crimes and crimes against humanity in the Democratic Republic of Congo (DRC), Callixte Mbarushimana has been arrested in France.  Mbarushima is listed as the Executive Secretary of the Democratic Forces for the Liberation of Rwanda, (FDLR) and is accused of six counts of war crimes and was arrested outside his home in Paris to fact charges at the International Criminal Court, (ICC) in The Hague, Netherlands.

The warrant naming Mbarushimana was unsealed after his arrest, raising the question  of how many other sealed indictments and warrants await public disclosure.  The ICC press release on the arrest of Mbarushimana is available here. Bloomberg news covered the story here.

According to a fact sheet released by the ICC:

 In sealed documents submitted to the ICC
judges on 20 August 2010, the Office of the
Prosecutor (OTP) presented evidence against
Mr. Callixte MBARUSHIMANA, Executive
Secretary of the FDLR, charging him with 6
counts of war crimes and 5 counts of crimes
against humanity.
 The Court’s Pre‐Trial Chamber I issued a
sealed arrest warrant on 28 September 2010.
 On 11 October 2010, the French authorities
executed the arrest warrant and arrested Mr.
Callixte MBARUSHIMANA in Paris, France.

The fact sheet describes the allegations as follows:

 Mr. Callixte MBARUSHIMANA is accused
of being among the top FDLR leaders that, at
the end of 2008 and over the course of 2009,
agreed to conduct widespread and systematic
attacks against the civilian population in order
to create a humanitarian catastrophe. He is
also accused of agreeing to conduct and
personally conducting an international
campaign intended to persuade the DRC and
Rwanda Governments and the international
community that the FDLR could not be
defeated militarily and thereby to extort from
them concessions of political power for the
FDLR in Rwanda as a condition for the FDLR
to stop committing atrocities against civilians.
 The OTP accuses Mr. Callixte
MBARUSHIMANA, as part of the FDLR
leadership, of having used violence against
civilians as their main bargaining tool in their
international campaign to attempt to extort
from Rwanda and the international
community political power for the FDLR.
 The OTP accused Mr. Callixte
MBARUSHIMANA of being responsible for
the crimes committed by the FDLR in pursuit
of this goal as contributor to the commission
of crimes by the FDLR, a group acting with a
criminal common purpose.
 As such, the OTP alleges that Mr. Callixte
MBARUSHIMANA is responsible for the war
crimes of (1) attacks against the civilian
population; (2) destruction of property; (3)
murders or willful killings; (4) rape; (5)
inhuman treatment; and (6) torture, and the
crimes against humanity of (1) murders; (2)
torture; (3) rape; (4) inhumane acts; and (5)
persecution.

Mbarushmina is the first accused at the ICC to face charges for crimes alleged to have been committed in the Kivus provinces of the DRC.  The three accused from the DRC who are presently at the ICC are in trial.

Thomas Lubanga Dyilo former head of the Union of Congolese Patriots was brought to the court in 2006, his trial began in January 2009, with the defense case beginning in January 2010.  His trial was adjourned for failure by the prosecutor to disclose the identity of an investigator, but is expected to resume shortly.

Germain Katanga and Matthieu Ngdolo Chui are also from the DRC and are being tried together.  Their trial commenced on November 24, 2009.  Katanga and Chui are accused of war crimes and crimes against humanity including, using child soldiers, sexual slavery, attacking civilians, rape and pillaging.

Those are the only cases to come to trial in the history of the ICC.  A third trial, that of Jean-Pierre Bemba Gombo, of the Central African Republic accused of rape and murder as crimes against humanity and rape, murder and pillaging as war crimes is awaiting the end of the  Lubanga trial in order to start trial.

The ICC began in 2002 when the 60th nation ratified its treaty, as of November 1, there will 114 nations that have ratified the treaty and subjected their citizens to the jurisdiction of the ICC.

Three citizens of Sudan, which is not a state’s party to the ICC have appeared before the court voluntarily to face charges.  The first, Bahr Idriss Abu-Garda had his case dismissed at the confirmation of charges hearing.  Two others, Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jermus are awaiting the confirmation of charges hearing after appearing voluntarily in June of 2010.

There are outstanding warrants for the arrest of Omar Hassan Al-Bashir, the president of Sudan for genocide and war crimes, Ahmed Harun, minister of Humanitarian Affairs in Sudan and the leader of the Janjaweed Militia, Ali Kushayeb. The case against Al-Bashir is the most controversial, having raised concerns about the indictments of sitting heads of state. Al Bashir is the first sitting head of state to be indicted for war crimes or crimes against humanity by an international tribunal.

There have been public indictments issued from investigations in Uganda, and the prosecutor has announced the indictments will be published in the next few months in the investigations into post-election violence in Kenya.

The prosecutor of the ICC, Luis Moreno-Ocampo, has also said there may be investigations into crimes within the jurisdiction of the court in Afghanistan, Colombia,  Georgia, and  Guinea.  At the moment, the only publicly disclosed investigation are from five contiguous countries in Africa, DRC, Central African Republic, Kenya, Uganda and the Darfur region in Sudan.

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Pre Trial Chamber Opens Kenya Investigation

By | Published March 31, 2010

Pre-Trial Chamber II of the International Criminal Court has granted the request of the prosecutor to open an investigation into the post-election violence in Kenya.   A majority of the panel voted to grant the request, Judge Han-Peter Kaul, dissented, arguing that the crimes alleged in the 1,500 pages of documentation submitted by the office of the prosecutor do not constitute crimes against humanity.   Essentially Judge Kaul determined the post-election violence was not directed by a government or other organization and so did not rise to the level of war crimes as defined by the Statute of Rome, the defining treaty of the court.

The court’s 163 page decision is available here.  The court’s press release is available here. The 111 nations that have ratified the Treaty of Rome are subject to the court’s jurisdiction when there are crimes against humanity or war crimes that national authorities cannot or will not prosecute.  Kenya has agreed to cooperate with the investigation and prosecution of the widespread violence following its election in 2007.

This investigation will allow the victims of crimes against humanity from Kenya during the post-election period to make application to the court and seek reparations from the court and the fund set up by the 111 nations who are signatories to the treaty.

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ICC Prosecutor Delivers List of 20 Names to the Court in Kenya Investigation

By | Published March 10, 2010

The Office of the Prosecutor of the International Criminal Court has  delivered a list of 20 names of senior government officials and business leaders who are alleged to have been involved in directing the post-election violence in Kenya.  “These senior leaders from both PNU and ODM parties were guided by political objectives to retain or gain power”, said the Prosecutor. “They utilized their personal, government, business and tribal networks to commit the crimes. They implemented their policy with the involvement of a number of State officers and public and private institutions, such as members of the parliament, senior government officers, the police force and youth gangs.”

The pre-trial chamber is directing the investigation and had requested clarification from the Office of the Prosecutor. The names have not been made public.  “At this stage, the names are indicative only” said the Prosecutor. “The allegations concerning the named individuals will have to be measured against the evidence gathered independently by my office. If the Judges authorize the investigation, I will engage those who wish to clarify their role or provide further information.”

The International Crime Bureau has covered this story here. The court’s press release on the matter is available here. The prosecutor has made an expedited request to open an investigation, the pre-trial chamber will determine if there is sufficient evidence to do so and whether or not to issue indictments.

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ICC Prosecutor Tells Court Kenya Violence Directed by Officials

By | Published March 4, 2010

The Office of the Prosecutor of the International Criminal Court has told the pre-trial chamber that the post-election violence in Kenya is traceable to specific officials.  The prosecutor reported the violence was directed by specific “senior political and business leaders.”

Kenya may be the fifth situation for the ICC, the investigation is limited to the post election violence.  The ICC has jurisdiction over cases in countries which are signatories to the Rome Statute, the treaty which created the court, or where the case has been referred by the U.N. Security council.  The security council referred the situation in Sudan.  The situations in Uganda, Democratic Republic of Congo,  and Central African Republic were referred by the respective governments.  The government of Kenya has consented to this investigation.  The ICC has jurisdiction only when the cases cannot or will not be prosecuted by the national government.

The ICC’s press release is available here. The ICC has jurisdiction over war crimes, crimes against humanity, and genocide.

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