Wednesday, March 9, 2011

Breaking News from the ICC

The ICC recently released three important decisions in the last two days:

1. The first two are decisions by Pre-Trial Chamber II, by a majority, to issue summons to the six Kenyan suspects (about which we've blogged before) to appear before the ICC on April 4, 2011:

  • 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).

The Chamber found reasonable grounds to believe that Ruto, Kosgey and Sang (the Odinga defendants) can be prosecute for specified crimes against humanity (murder, forcible transfer and persecution). (The Chamber rejected efforts to prosecute the three for torture). The cases against Ruto and Kosgey will proceed under a theory of indirect co-perpetration (i.e., committing crimes through another person(s)) in accordance with article 25(3)(a) of the Rome Statute. The case against Sang, by contrast, will proceed under a theory of complicity rather than co-perpetration, because the PTC determined that no reasonable grounds existed to believe that Sang's contribution to the commission of the crimes was essential.

Maintaining almost perfect symmetry, the PTC determined Muthaura and Kenyatta (the Kibaki defendants) will be prosecuted as co-perpetrators of the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts. Likewise, the case against Ali will proceed under a theory of complicity based on the finding 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.

Unsurprisingly (see prior post), Judge Hans-Peter Kaul dissented (opinion as yet unavailable), arguing that the Prosecutor had failed to establish reasonable grounds to believe that the crimes were committed pursuant to or in furtherance of the policy of an organization as required by the definition of crimes against humanity in the ICC Statute.

2. In the Darfur situation, PTC I confirmed charges against two rebel leaders (Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus) based upon alleged attacks on the compound of the African Union peacekeeping mission in Sudan on the evening of September 29, 2007. The two will be prosecuted for the war crimes of:

•violence to life and attempted violence to life;
•intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission; and

Stay tuned...

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