Click here for the latest goings-on in Muliro Gardens. On Tuesday 8 March 2011, as Kenya's Intellectual Lightweight was in New York trying to sell nonsense to UN Secretary General Ban Ki Moon, Judge Ekaterina Trendafilova and Judge Cuno Tarfusser of ICC Pre-Trial Chamber II, by Majority, issued the decisions on the applications submitted by the Prosecutor to summon William Samoei Ruto (Ruto), Henry Kiprono Kosgey (Kosgey), Joshua Arap Sang (Sang), Francis Kirimi Muthaura (Muthaura), Uhuru Muigai Kenyatta (Kenyatta) and Mohammed Hussein Ali (Ali) to appear before the Court on 7 April 2011.
With respect to the case involving Ruto, Kosgey and Sang, the Chamber 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 committed in some locations in the Republic of Kenya and during the time-frame specified in the Prosecutor’s application. The Chamber, however, found that there are not reasonable grounds to believe that Sang is an indirect co-perpetrator, because his contribution to the commission of the crimes was not essential. Instead, the Chamber 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. As to the count of torture, the Chamber has not found reasonable grounds to believe that acts of torture were committed.
Regarding the case involving Muthaura, Kenyatta and Ali, the Chamber 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, however, found that there are not reasonable grounds to believe that Ali is an indirect co-perpetrator, because his contribution to the commission of the crimes was not essential. Instead, 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. Finally, the Chamber found no reasonable grounds to believe that, in relation to Kisumu and Kibera, the alleged perpetrators committed the said crimes.
Based on the foregoing findings, the Chamber issued the summonses to appear for the six suspects subject to the following four conditions:
(i) to have no contact directly or indirectly with any person who is or is believed to be a victim or a witness of the crimes for which the suspects have been summoned;
(ii) to refrain from corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, or tampering with or interfering with the Prosecution’s collection of evidence;
(iii) to refrain from committing crime(s) set forth in the Statute;
(iv) to attend all required hearings at the International Criminal Court;
Judge Hans-Peter Kaul disagrees with the Majority in both cases on the question of whether the crimes alleged amount to crimes against humanity under the jurisdictional ambit of the Court. He holds that the Prosecutor has failed in both cases to establish reasonable grounds to believe that the crimes were committed pursuant to or in furtherance of the policy of an organization within the meaning of article 7(2)(a) of the Rome Statute. Thus, he believes that the Court lacks subject-matter jurisdiction in the situation in the Republic of Kenya, including both cases. The dissenting opinions will be issued in due course.
THIS JUST IN (Thursday March 10, 2011): Kalonzo Musyoka's shuttle diplomacy to the US ends in failure after a State Department official categorically declares America will not support a UN Security Council resolution to defer the ICC investigation of the Ocampo 6.
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