The next big challenge for International Criminal Court prosecutor Luis Moreno-Ocampo is to convince the three judges handling the Kenyan case that the charges against six suspects constitute crimes against humanity.
It will be no mean feat convincing judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser that the six have a case to answer.
When Mr Ocampo sought to investigate the Kenyan case, one of the judges dissented and said that in his considered opinion there were no crimes committed in Kenya of the magnitude requiring the attention of the ICC.
Defence lawyers are likely to use Judge Kaul’s dissent as their stepping stone to build a case against Mr Moreno-Ocampo’s charges.
On March 31, 2010, Pre-Trial Chamber II, by majority of two to one, issued its decision authorising the prosecutor to begin an investigation into allegations of crimes against humanity in Kenya.
Judge Kaul, however, dissented by indicating that the prosecutor had not proved that the crimes leading to the death of 1,133 people and the eviction of more than 600,000 others met the criteria threshold of the ICC.
The reason he gave for declining Mr Moreno-Ocampo’s plea to be allowed to investigate Kenya’s case is that what happened during the post-election violence did not amount to a crime against humanity under the Rome Statute.
“The question is, whether those events reach the level of crimes against humanity as defined under the Statute and are thus subject to the jurisdiction of this court. After having meticulously analysed the information contained in the supporting material and the victims’ representations, I conclude that this threshold is not met,” Judge Kaul said.
Nor was he convinced that Mr Moreno-Ocampo had proved that the violence was an organised attack on civilians or a determined move by the government to target members of a particular community.
The other two judges also said there was a need for the ICC prosecutor to gather more evidence on the case before they could put anyone on trial.
Judges Trendafilova and Tarfusser were satisfied that the prosecutor had presented adequate information to meet the requirements to investigate crimes against humanity as described in the Rome Statute.
“Upon examination of the available information, bearing in mind the nature of the present proceedings, the low threshold, as well as the object and purpose of this decision, the Chamber finds that the information available provides a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory,” the two judges said.
At the end of March next year, the three-judge ICC bench is expected to rule on Mr Moreno-Ocampo’s application seeking summons against the six.
The prosecutor is expected to prove to the judges from January that the six suspects were responsible for the charges of murder, forced eviction, rape, torture and persecution which he has brought against them.
Last Wednesday, the prosecutor, after conducting his investigations, submitted to Pre-Trial Chamber II two applications requesting the issuance of summons to appear for ministers William Ruto (suspended), Uhuru Kenyatta and Henry Kosgey, Head of Civil Service Francis Muthaura, former police boss Hussein Ali and journalist Joshua arap Sang.
Both applications are contained in two 80-page reports, and in supporting his requests, the prosecutor submitted to the Chamber several thousands of pages of documents.
He is now expected to prove that there were actually crimes against humanity and that the six were involved in the planning, financing and execution. He will need to satisfy the judge who raised questions about his application when he was requesting permission to investigate.
Mr Moreno-Ocampo accuses the National Security Advisory Committee, which was chaired by Mr Muthaura and where Mr Ali was a member, of authorising and deploying the police into ODM strongholds.
According to Jelena Vukasinovic, an Associate Legal Outreach Officer at the ICC, the judges will review the evidence and material presented and, if satisfied that there are reasonable grounds to believe that the six committed the crimes alleged in the prosecutor’s applications, the court will either issue warrants of arrest or summons to appear with or without conditions.
Although Mr Moreno-Ocampo has asked for summons, the Pre-Trial Chamber can choose to issue an arrest warrant instead if it finds that a summons is insufficient to ensure the individual’s appearance in court.
An ICC Pre-Trial Chamber previously refused to issue summons against two government officials in the Darfur region of Sudan and issued arrest warrants instead. The two individuals – Ahmad Harun and Ali Kosheib – remain at large.
Three other people subject to summons for allegedly carrying out rebel attacks on an African Union peacekeeping mission in Darfur have voluntarily appeared for Pre-Trial proceedings in The Hague.
“The judges may also, in the course of their assessment of the documents submitted by the prosecutor, decide to go back to him requesting more evidence or clarification in relation to any issue that may arise in the course of its assessment,” Ms Vukasinovic said.
If the Chamber finds that the evidence provided by the prosecutor is not sufficient to meet reasonable grounds criteria, it shall decline to issue either warrants of arrest or summons to appear.
The prosecutor may thereafter re-apply if he manages to secure new evidence in order to meet the reasonable grounds standard. “In the event that the Chamber decides to issue the summons to appear, it shall set a date for the initial appearance of these persons. The Chamber may issue those summons with or without conditions,” Ms Vukasinovic said.
The Chamber will decide which conditions, if any, it wants to set though the conditions requested by the prosecutor in his applications are simply indicative for the Chamber.
Mr Moreno-Ocampo listed conditions the six suspects have to respect: updating the ICC of their personal contacts and movements every two weeks; not to contact other suspects whether via phone calls, sms, email or through intermediaries unless through their lawyers in preparation of their defences; not to approach any victims or witnesses in Rift Valley, Nairobi and Nyanza; not to influence or interfere with the testimonies of victims and witnesses; to keep off the investigations and not to engage in other crimes.