ICC: Justice Advances in Kenya Case

(Brussels) - The International Criminal Court (ICC) moved the Kenya case forward on March 8, 2011, by issuing summonses for six individuals accused of crimes against humanity during Kenya's post-election violence in 2007-2008, Human Rights Watch said today. The six - who include senior politicians and government officials on both sides of the violence - were summoned to appear for initial proceedings in The Hague on April 7.

ICC judges authorized the court's prosecutor to investigate in March 2010 after Kenyan authorities failed to make good on promises to bring to account in Kenyan courts those responsible for violence following Kenya's disputed 2007 general election. The violence left at least 1,133 people dead and caused 400,000 to flee their homes.

"The ICC's decision means that six people implicated in Kenya's post-election violence will have to answer to the court," said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. "The ICC summonses - which name some of Kenya's most senior leaders - should serve as a wake-up call to Kenyan politicians and officials that they can be held to account."

Three summonses were issued in each of two related cases, following requests by the ICC prosecutor in December 2010.

In the first case, William Samoei Ruto, Henry Kiprono Kosgey, and Joshua arap Sang are accused of committing the crimes against humanity of murder, forcible transfer, and persecution by their involvement in a plan to attack perceived supporters of President Mwai Kibaki's Party of National Unity (PNU). Ruto and Kosgey are senior members of the then-opposition party Orange Democratic Movement (ODM), as well as members of parliament, and, until recently, cabinet ministers. Sang was at the time of the post-election violence a radio host on the Eldoret-based KASS FM.

In the second case, Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali are accused of committing the crimes against humanity of murder, forcible transfer, rape, other inhumane acts, and persecution by using the Mungiki, a Kenyan criminal gang, to attack perceived Orange Democratic Movement supporters in Nakura and Naivasha or by instructing the police not to interfere with these attacks. Muthaura is the head of the public service and secretary to the cabinet, while Kenyatta is the deputy prime minister and finance minister. Ali was the Kenyan police commissioner at the time of the violence.

The pre-trial chamber found that summonses were sufficient to ensure that the named individuals appeared before the court, and thus arrest warrants were not necessary at this time. The pre-trial chamber included conditions, however. It ordered the six not to have contact or interfere with victims or witnesses, not to commit crimes that come under ICC jurisdiction, and to attend all ICC hearings. Witness protection has been a key challenge in the ICC's investigation. 

"We look forward to all six individuals appearing before the ICC," Evenson said. "Failure to cooperate with the court could subject each to arrest."

Kenyan government officials are at the United Nations in New York this week to press for a suspension of the ICC's proceedings on Kenya. They have claimed ICC prosecutions are potentially divisive and may derail national reforms needed to pave the way for prosecutions in Kenya of the post-election violence. Article 16 of the ICC's founding treaty, the Rome Statute, provides that a proceeding can be deferred only if there is a threat to international peace and security. But the ICC's work is checking a culture of impunity that was a chief cause of the 2007-2008 violence, Human Rights Watch said.

Human Rights Watch said that credible national trials would be welcome in Kenya to ensure wider accountability, but that Kenya's inaction to date on justice raised questions as to whether new promises of national trials are genuine. Under article 19 of the Rome Statute, should Kenya prosecute those named in the ICC summonses, it can seek to take back the cases.

"There is no legal basis for the call by Kenyan officials for the UN Security Council to suspend the ICC's Kenya investigation," Evenson said. "After three years of inaction by Kenya's justice system, Security Council members should support, not hinder, the ICC's efforts to ensure that perpetrators are held to account and victims obtain justice."

Background

The ICC is the world's first permanent court mandated to bring to justice perpetrators of war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. Currently, 114 states are parties to the ICC.

The Kenyan investigation is the fifth of the ICC's investigations, which now total six, and was the first opened by the prosecutor using his proprio motu powers under article 15 of the Rome Statute, which allow him to act on his own initiative. The ICC prosecutor previously opened investigations in the Democratic Republic of Congo, northern Uganda, and the Central African Republic following voluntary referrals by states. The other two investigations came about following UN Security Council referrals to the prosecutor, of the Darfur region of Sudan in 2005 and Libya in 2011. Based on these investigations, a total of 15 arrest warrants and nine summonses to appear have been issued, including those in the Kenya situation.

The investigation in Kenya was authorized by a majority of three judges sitting as an ICC pre-trial chamber. In a dissenting opinion, Judge Hans-Peter Kaul held that the crimes committed during the post-election violence did not fall within the ICC's jurisdiction because there was no reasonable basis to believe that those crimes were committed pursuant to a state or organizational policy, a requirement of a crime against humanity under article 7(2)(a) of the Rome Statute. Judge Kaul also dissented from the chamber's decisions on the summonses, but his opinion has not yet been made public.

Like an arrest warrant, an ICC summons to appear contains the charges against an individual and triggers proceedings that may ultimately bring a case to trial. But unlike an arrest warrant, the summons imposes only an obligation on the individual to appear before the court, as opposed to any obligation on the Kenyan authorities or the authorities of any other ICC state party to arrest the person. If the accused fails to appear or does not comply with conditions in the summons, the pre-trial chamber may decide to issue an arrest warrant.

In issuing the summonses, the chamber did not include torture as a crime against humanity in the case against Ruto, Kosgey, and Sang, as requested by the ICC prosecutor. It also declined to include counts against Muthaura, Kenyatta, and Ali for allegedly instructing the police to target perceived Orange Democratic Movement supporters and to suppress their protests in Kisumu city and Kibera, an informal settlement in Nairobi. Unlawful police killings accounted for as many as one-third of the total deaths during the post-election violence, according to the report of the Commission of Inquiry into the Post-Election Violence (Waki Commission). The pre-trial chamber indicated that the prosecutor could seek to make additional submissions in the future as to both matters.

The pre-trial chamber found reasonable grounds to believe that Ruto and Kosgey, on the one hand, and Muthaura and Kenyatta, on the other, were principal perpetrators under article 25(3)(a) of the Rome Statute, but did not find that to be the case for Sang and Ali. Instead, Sang and Ali are accused of having contributed to the commission of crimes, a different mode of liability provided for in article 25(3)(d).

The ICC prosecutor is also looking at a number of other situations in countries around the world. These include Colombia, Georgia, Cote d'Ivoire, Afghanistan, Guinea, Nigeria, and Honduras. The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over alleged crimes committed in Gaza.

The ICC is a court of last resort. It only steps in where national jurisdictions are unable or unwilling to prosecute Rome Statute crimes.