Appeals Chamber unanimously rejects Kenyan appeals, focus now on trials

The Appeals Chamber of the International Criminal Court (ICC) has unanimously rejected two cases challenging whether the crimes four prominent Kenyans are alleged to have committed qualify as crimes against humanity under the Rome Statute of the ICC.

The four Kenyans accused in two separate cases had appealed against the decision of Pre-Trial Chamber II to reject their applications questioning whether the crimes they are charged with meet the threshold necessary to be the subject of ICC proceedings. The pre-trial chamber decision was a majority one, with a single judge dissenting.

Deputy Prime Minister Uhuru Muigai Kenyatta, former Cabinet Minister William Samoei Ruto, former Public Service Chief Francis Kirimi Muthaura, and radio journalist Joshua arap Sang made the challenge following pre-trial hearings held in September and October last year. The hearings were to determine whether the prosecution could show there were substantial grounds to confirm charges against them.

The Appeals Chamber decision on Thursday marks the end of the pre-trial phase of the cases against the four accused persons. All concerned will now focus their attention on trial proceedings, which have already begun. Trial judges had set Monday as the deadline for all parties to submit their suggestions for a trial date and the prosecution and defense to give their views on how and when they will disclose evidence to each other. All parties will meet with the judges of Trial Chamber V next month to determine a schedule to manage preliminary matters.

Kenyatta and Muthaura have been charged with five counts of crimes against humanity for violence that occurred in Kenya’s Central Rift region in late January 2008. The violence engulfed many parts of the country for two months followed the country’s disputed December 2007 presidential poll. Ruto and Sang have been charged with three counts of crimes against humanity for violence in the North Rift region.

In both cases, the Appeals Chamber found that the accused focused only on two areas in their appeals. They disagreed with the pre-trial chamber’s interpretation of who and what made up an organization that allegedly perpetrated crimes, and they argued that because there was no evidence that an organization to perpetrate the alleged crimes existed, then it followed that there were no charges for the ICC to try.

Under the Rome Statute, the treaty that established the ICC, one of the elements defined as necessary for people to be charged with crimes against humanity is that they belong to or have control over an organization that has the power to deprive other people of their human rights. The accused argued in their appeal that this had not been adequately established. They also relied on the one dissenting judge of Pre-Trial Chamber II, who throughout the pre-trial phase had argued that the crimes committed between December 2007 and February 2008 in Kenya, as horrendous as they were, did not constitute crimes against humanity and that there was no organization that directed their commission.

The appeals judges said that the accuseds’ arguments did not address whether the alleged crimes constituted crimes against humanity, which was the issue to be dealt with under the Statute articles and rules that they filed their appeals. The judges said that instead the accused seemed to challenge the prosecutor’s evidence in relation to whether crimes against humanity had been committed, something, the judges said, that would be determined at trial.

Trial Chamber V has called a status conference where the prosecution, defense lawyers, victims’ lawyers, and registry will discuss a trial date and other preliminary matters on June 11 and 12. The prosecution and one victims’ lawyer had already stated that they had no objection to holding off setting a trial date until the appeals had been determined.

The two decisions rejecting the appeals are available here.

 

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