Confirmation of Charges in the Kenya Case

by Kevin Jon Heller

The Pre-Trial Chamber II (PTC) has confirmed the charges against 4 of the 6 defendants in the Kenya cases.  The following is from the PTC’s oral summary of their decision:

Summary of Decision in Case 1

I will now turn to the merits of Case 1, the Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang…. As mentioned at the start, the Prosecutor charged Mr. Ruto, Mr. Kosgey and Mr. Sang, for crimes against humanity of murder, deportation or forcible transfer and persecution.

[snip]

As to the criminal responsibility of Mr. Ruto and Mr. Sang, the Chamber found, on the basis of the evidence presented, that they are responsible for the charges levied against them.

[snip]

However, in relation to Mr. Kosgey, the Chamber found that the Prosecutor’s evidence failed to satisfy the evidentiary threshold required. The Chamber was not persuaded by the evidence presented by the Prosecutor of Mr. Kosgey’s alleged role within the organization.

In particular, the Prosecutor relied on one anonymous and insufficiently corroborated witness. Moreover, the Chamber determined that Mr. Kosgey suffered prejudice due to the redaction of certain dates related to a number of meetings that he allegedly attended, which proved to be essential for his defence and for the finding on his criminal responsibility.

In light of these facts and the entire body of evidence relating to Mr. Kosgey’s criminal responsibility, the Chamber declined to confirm the charges against Mr. Kosgey.

Summary of Decision in Case 2

Turning now to Case 2, the Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali.

As mentioned earlier, the Prosecutor charged Mr. Muthaura, Mr. Kenyatta and Mr. Ali with crimes against humanity of murder, deportation or forcible transfer, rape and other forms of sexual violence, other inhumane acts and persecution.

[snip]

[T]he evidence established substantial grounds to believe that the crimes of murder, deportation or forcible transfer, rape, other inhumane acts and persecution were committed.

With respect to the criminal responsibility of Mr. Muthaura and Mr. Kenyatta, the Chamber was satisfied that the evidence also established substantial grounds to believe that they are criminally responsible for the alleged crimes, as indirect co-perpetrators, pursuant to article 25(3)(a) of the Rome Statute, having gained control over the Mungiki and directed them to commit the crimes.

However, in relation to Mr. Ali, the Chamber found that the evidence presented does not provide substantial grounds to believe that the Kenya Police participated in the attack in or around Nakuru and Naivasha. Since Mr. Ali was charged with contributing to the crimes through the Kenya Police, the Chamber declined to confirm the charges against him.

I’m guessing that the decision comes as a significant relief to the OTP.  Many observers — some inside the Court — were afraid that the PTC would refuse to confirm the charges against any of the defendants.  I was not so skeptical, but I’m also not surprised that Kosgey and Ali have gone free.  I was never quite sure why they were included in the two cases in the first place; they seemed like minor players against whom the evidence was very thin — particularly Kosgey.

The decision, it is worth noting, was 2-1; Judge Kaul dissented, reiterating his belief that the prosecution had failed to establish, as required by Article 7(2)(a) of the Rome Statute, that the attack on the civilian population was committed “pursuant to or in furtherance of a State or organizational policy to commit such attack.”  We’ll see if the OTP can prove the existence of such a policy at trial.

I imagine I’ll have more to say when the decision is released.

http://opiniojuris.org/2012/01/22/confirmation-of-charges-in-the-kenya-case/

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