Tag Archives: Luis Moreno-Ocampo

Ruto and Sang Trial Begins at the ICC

The trial of Kenya Deputy President William Ruto and Broadcaster Joshua Sang began at the International Criminal Court, (ICC) in The Hague, Netherlands this week.  Ruto and Sang were indicted for their alleged direction of post-election violence in Kenya in 2007-2008.  The case has a complex history.

In 2009, former United Nations Secretary General Kofi Annan provided a list of suspects provided to him in a sealed envelope:

The list of about a dozen people includes at least two senior cabinet ministers and will increase the pressure on Kenya’s coalition government to establish a special local tribunal. Annan, who brokered an end to the crisis last year, had pledged to hand over the names if the government failed to hold accountable those most responsible for orchestrating the violence.

From that list, the Office of the Prosecutor (OTP) at the ICC began its investigation into the post-election violence.  The OTP reported at the time that officials had been involved in the post-election violence, and delivered a list of 20 names to the chamber overseeing the investigation.

Eventually the court released the names of six Kenyan officials who had been indicted by the court. The  six, dubbed the “Ocampo Six” by the Kenyan media, included Ruto, Sang and Uhuru Kenyatta, who was elected president of Kenya in March. The name “Ocampo Six” was a reference to then ICC prosecutor, Luis Moreno-Ocampo. At the confirmation of charges hearing, a sort of probable cause hearing, two of the “Ocampo Six” were dismissed from the case as the court found there was not sufficient evidence to hold them for trial. A third defendant, the co-defendant of Kenyatta, Francis Kirimi Muathara had the charges against him withdrawn by the prosecutor, leaving Kenyatta as the sole defendant in his case, and Ruto and Sang.  Several witnesses have said they will not testify against Kenyatta, the ICC does not have the power to compel witnesses to testify.

Kenya’s government, before the election of Kenyatta and Ruto to their current positions, argued unsuccessfully to dismiss the indictments. Kenya’s parliament recently voted to withdraw from the court.

At the confirmation of charges hearing, Judge Hans Peter Kaul issued a dissent where he argued the cases were not admissible:

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, and the other pre-trial judges are not presiding at the trial.  The court’s press release announced the opening of the trial:

Mr Ruto and Mr Sang are accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in Kenya in the context of the 2007-2008 post-election violence. The trial is held before Trial Chamber V(a) composed of Judge Chile Eboe-Osuji (presiding), Judge Olga Herrera Carbuccia and Judge Robert Fremr.

ICC Confirms Charges Against Four of the “Ocampo Six”

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.

 

Fourth DRC Suspect Arrested in France

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.

Moreno-Ocampo Promises Appeal in Lubanga Case, Discusses Future cases

International Criminal Court (ICC) Prosecutor, Luis Moreno-Ocampo spoke with blogger Melanie Gouby and played down the Trial Chamber’s decisions to suspend the case against Thomas Lubanga, and to release him from custody.  In the interview, available here, Moreno-Ocampo argued the court’s order was the sign of a strong court and that his office was in the process of complying with the court’s order to disclose the identity of an investigator who is alleged to have bribed witnesses in order to gain more damaging testimony against Lubanga. The defense has claimed that some of the witnesses have assumed other identities and were not in fact child soldiers.

Lubanga is the first person brought to the The Hague to face charges before the ICC.  He was brought before the court in 2007 on war crimes charges, claiming he had conscripted and used child soldiers.  His trial began in January of 2009, the defense began its  presentation in 2010, the case was suspended over the prosecutions refusal to disclose the identity of the witness as ordered by the court. Lubanga was the reputed head of the Union of Congolese Patriots in the Democratic Republic of Congo.

Of great interest in the interview was Moreno-Ocampo’s discussion of cases that are currently being investigated but have not been made public or charged.  Those include, Georgia, Colombia, and Afghanistan.  Guinea is also under investigation.

A significant criticism of the court is that only African nations have open investigations and accused.  The open question will be how long before a non-African nation becomes a recognized situation with accused before the court.