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 A third defendant, the co-defendant of Kenyatta, Francis Kirimi Muathara had the charges against him withdrawn by the prosecutor, leaving Kenyatta as the sole defendant in his case, and Ruto and Sang.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.