New ruling may send Ocampo Six back to the drawing board

Saturday June 4 2011

Photo/FILE

Judge Hans-Peter Kaul has twice

Photo/FILE Judge Hans-Peter Kaul has twice differed with his two colleagues at the ICC Pre-Trial chamber in his ruling on the Kenyan case.  

By OLIVER MATHENGE [email protected]

The Ocampo Six appear to have lost favour with the International Criminal Court judge who had declined to issue summonses on them when he agreed with his colleagues to throw out the admissibility challenged lodged by Kenya.

Judge Hans-Peter Kaul agreed with his Pre-Trial chamber colleagues that the two cases were admissible before the court despite having earlier expressed his reservations on the cases. (READ: ICC Judge: Why I refused to give summons)

Judge Kaul dissented twice in what appeared to be a lifeline for the suspects though the court has to uphold the majority decision of the other two judges.

In April last year, he declined to grant ICC chief prosecutor Luis Moreno-Ocampo authority to launch investigations in Kenya over the post-election violence.

While declining to issue summonses against the six suspects in March, Judge Kaul said the crimes committed during the chaos can be dealt with locally.

Though he agreed with the other two judges that crimes were committed he noted that they did not meet the threshold of the ICC.

In his dissenting opinion, the judge said that Mr Moreno-Ocampo had not convinced him that the crimes committed in Kenya meet the threshold of crimes against humanity.

But in what appeared as a change of heart last week, Judge Kaul joined his colleague in expressing concern that the government was challenging the admissibility of the cases but was yet to show that it had conducted investigations.

In their ruling, the judges said that the cases against William Ruto, Henry Kosgey, Joshua Sang, Uhuru Kenyatta, Francis Muthaura and Hussein Ali should not be sent back as Kenya is yet to prove it was tackling them.

Attorney General Amos Wako met the government lawyers in London on Friday where they discussed the modalities of appealing the decision.

The government also appeared to have been exposed by the suspects, who though supporting the admissibility challenge had indicated to the court that they were ready to fight on their own.

Some of the suspects made no submissions in supporting the government and also said that they would at a later stage lodge their own admissibility challenges on their cases.

Mr Moreno-Ocampo has meanwhile released the first batch of evidence to Mr Kenyatta, Mr Ali and Mr Muthaura which contains reports on the post-election violence and media clippings.

The Prosecutor, however, indicates that there are “no facts linked” to the counts the three are facing from the current evidence released which he had collected before he named the suspects in December last year.

He is supposed to release more evidence collected after he named them and after they were summoned to The Hague.

In a related development, Judge Ekaterina Trendafilova acting as single judge has ordered the Victims and Witness Unit (VWU) to submit observations on the Prosecutor’s risk assessment on the status of witness protection.

The submissions to be filed by June 13, will include “any proposals for additional or alternative protective measure which might be necessary or appropriate in order to ensure the protection of a given witness.”

The VWU has also been instructed to submit the observations with respect to any other witnesses for whom redactions will be requested by the Prosecutor.

“The Single Judge considers necessary, with a view to enabling her to properly rule on the First Application for Redactions, that the VWU provide its observations on the security risk assessment submitted by the Prosecutor with respect to each witness as well as to propose any additional or alternative protective measures that might be necessary or appropriate in order to ensure the proper protection of a given witness and/or his family members,” Judge Trendafilova said.