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ICC Issues Summons to Appear for Six Kenyans: Latest Media Statements and Continued Coverage
09 Mar 2011
On 8 March 2011, Judges of Pre-Trial Chamber II (PTC II) of the International Criminal Court (ICC) issued summonses to appear for six individuals for their alleged roles in the 2007-2008 Kenyan post-election violence.
The two PTC II decisions are available on the ICC website at: http://www.icc-cpi.int/Menus/ICC?lan=en-GB
This message includes latest media statements issued by members of the Coalition for the ICC (I) and the ICC (II) in relation to the decisions, as well as related media coverage (III)
Please also take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the Coalition will not take a position on potential and current situations before the Court or situations under preliminary examination. The Coalition will, however, continue to provide the most up-to-date information about the ICC.
I. LATEST MEMBERS' MEDIA STATEMENTS
1. "ICC: Justice Advances in Kenya Case, Senior Officials Told to Report on April 7", Human Rights Watch, 9 March 2011, http://www.hrw.org/node/97168<https://exchange.wfm-igp.net/owa/redir.aspx?C=db8c1e70668a4155a1ecf22d604cd6b8&URL=http://www.hrw.org/node/97168>
"The International Criminal Court (ICC) moved the Kenya case forward on March 8, 2011, by issuing summonses for six individuals accused of crimes against humanity during Kenya's post-election violence in 2007-2008, Human Rights Watch said today. The six - who include senior politicians and government officials on both sides of the violence - were summoned to appear for initial proceedings in The Hague on April 7.
ICC judges authorized the court's prosecutor to investigate in March 2010 after Kenyan authorities failed to make good on promises to bring to account in Kenyan courts those responsible for violence following Kenya's disputed 2007 general election. The violence left at least 1,133 people dead and caused 400,000 to flee their homes.
'The ICC's decision means that six people implicated in Kenya's post-election violence will have to answer to the court,' said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. 'The ICC summonses - which name some of Kenya's most senior leaders - should serve as a wake-up call to Kenyan politicians and officials that they can be held to account.'
Three summonses were issued in each of two related cases, following requests by the ICC prosecutor in December 2010.
In the first case, William Samoei Ruto, Henry Kiprono Kosgey, and Joshua arap Sang are accused of committing the crimes against humanity of murder, forcible transfer, and persecution by their involvement in a plan to attack perceived supporters of President Mwai Kibaki's Party of National Unity (PNU). Ruto and Kosgey are senior members of the then-opposition party Orange Democratic Movement (ODM), as well as members of parliament, and, until recently, cabinet ministers. Sang was at the time of the post-election violence a radio host on the Eldoret-based KASS FM.
In the second case, Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali are accused of committing the crimes against humanity of murder, forcible transfer, rape, other inhumane acts, and persecution by using the Mungiki, a Kenyan criminal gang, to attack perceived Orange Democratic Movement supporters in Nakura and Naivasha or by instructing the police not to interfere with these attacks. Muthaura is the head of the public service and secretary to the cabinet, while Kenyatta is the deputy prime minister and finance minister. Ali was the Kenyan police commissioner at the time of the violence.
The pre-trial chamber found that summonses were sufficient to ensure that the named individuals appeared before the court, and thus arrest warrants were not necessary at this time. The pre-trial chamber included conditions, however. It ordered the six not to have contact or interfere with victims or witnesses, not to commit crimes that come under ICC jurisdiction, and to attend all ICC hearings. Witness protection has been a key challenge in the ICC's investigation.
'We look forward to all six individuals appearing before the ICC,' Evenson said. 'Failure to cooperate with the court could subject each to arrest.'
Kenyan government officials are at the United Nations in New York this week to press for a suspension of the ICC's proceedings on Kenya. They have claimed ICC prosecutions are potentially divisive and may derail national reforms needed to pave the way for prosecutions in Kenya of the post-election violence. Article 16 of the ICC's founding treaty, the Rome Statute, provides that a proceeding can be deferred only if there is a threat to international peace and security. But the ICC's work is checking a culture of impunity that was a chief cause of the 2007-2008 violence, Human Rights Watch said.
Human Rights Watch said that credible national trials would be welcome in Kenya to ensure wider accountability, but that Kenya's inaction to date on justice raised questions as to whether new promises of national trials are genuine. Under article 19 of the Rome Statute, should Kenya prosecute those named in the ICC summonses, it can seek to take back the cases.
'There is no legal basis for the call by Kenyan officials for the UN Security Council to suspend the ICC's Kenya investigation,' Evenson said. 'After three years of inaction by Kenya's justice system, Security Council members should support, not hinder, the ICC's efforts to ensure that perpetrators are held to account and victims obtain justice.'
The ICC is the world's first permanent court mandated to bring to justice perpetrators of war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. Currently, 114 states are parties to the ICC.
The Kenyan investigation is the fifth of the ICC's investigations, which now total six, and was the first opened by the prosecutor using his proprio motu powers under article 15 of the Rome Statute, which allow him to act on his own initiative. The ICC prosecutor previously opened investigations in the Democratic Republic of Congo, northern Uganda, and the Central African Republic following voluntary referrals by states. The other two investigations came about following UN Security Council referrals to the prosecutor, of the Darfur region of Sudan in 2005 and Libya in 2011. Based on these investigations, a total of 15 arrest warrants and nine summonses to appear have been issued, including those in the Kenya situation.
The investigation in Kenya was authorized by a majority of three judges sitting as an ICC pre-trial chamber. In a dissenting opinion, Judge Hans-Peter Kaul held that the crimes committed during the post-election violence did not fall within the ICC's jurisdiction because there was no reasonable basis to believe that those crimes were committed pursuant to a state or organizational policy, a requirement of a crime against humanity under article 7(2)(a) of the Rome Statute. Judge Kaul also dissented from the chamber's decisions on the summonses, but his opinion has not yet been made public.
Like an arrest warrant, an ICC summons to appear contains the charges against an individual and triggers proceedings that may ultimately bring a case to trial. But unlike an arrest warrant, the summons imposes only an obligation on the individual to appear before the court, as opposed to any obligation on the Kenyan authorities or the authorities of any other ICC state party to arrest the person. If the accused fails to appear or does not comply with conditions in the summons, the pre-trial chamber may decide to issue an arrest warrant.
In issuing the summonses, the chamber did not include torture as a crime against humanity in the case against Ruto, Kosgey, and Sang, as requested by the ICC prosecutor. It also declined to include counts against Muthaura, Kenyatta, and Ali for allegedly instructing the police to target perceived Orange Democratic Movement supporters and to suppress their protests in Kisumu city and Kibera, an informal settlement in Nairobi. Unlawful police killings accounted for as many as one-third of the total deaths during the post-election violence, according to the report of the Commission of Inquiry into the Post-Election Violence (Waki Commission). The pre-trial chamber indicated that the prosecutor could seek to make additional submissions in the future as to both matters.
The pre-trial chamber found reasonable grounds to believe that Ruto and Kosgey, on the one hand, and Muthaura and Kenyatta, on the other, were principal perpetrators under article 25(3)(a) of the Rome Statute, but did not find that to be the case for Sang and Ali. Instead, Sang and Ali are accused of having contributed to the commission of crimes, a different mode of liability provided for in article 25(3)(d).
The ICC prosecutor is also looking at a number of other situations in countries around the world. These include Colombia, Georgia, Cote d'Ivoire, Afghanistan, Guinea, Nigeria, and Honduras. The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over alleged crimes committed in Gaza.
The ICC is a court of last resort. It only steps in where national jurisdictions are unable or unwilling to prosecute Rome Statute crimes."
2. "Accountability for post-election violence: Cooperation with the ICC is Kenya's best option", No Peace Without Justice, 9 March 2011, http://www.npwj.org/ICC/Accountability-post-election-violence-Cooperation-with-ICC-Kenyaâs-best-option.html<https://exchange.wfm-igp.net/owa/redir.aspx?C=db8c1e70668a4155a1ecf22d604cd6b8&URL=http://www.npwj.org/ICC/Accountability-post-election-violence-Cooperation-with-ICC-Kenya%E2%80%99s-best-option.html>
"The Pre-Trial Chamber of the International Criminal Court (ICC) yesterday decided to issue summonses to appear for 6 individuals charged with crimes against humanity allegedly committed in Kenya during the post-election violence from December 2007. The six individuals are summoned to appear at the Court on 7 April 2011 for initial hearings on the charges, which so far include killing, forced displacement, persecution, rape and other inhumane acts as crimes against humanity.
Statement by Alison Smith, Legal Counsel of No Peace Without Justice:
'No Peace Without Justice (NPWJ) and the Transnational Nonviolent Radical Party (TRP) welcome the Pre-Trial Chamber's decision to issue summonses for six persons to appear at the Court in relation to crimes committed during the post-election violence in Kenya in December 2007. We strongly encourage the six men named by the Court to participate fully in the ICC proceedings, and we urge the Kenyan Government to extend all possible cooperation to the ICC.
'The Pre-Trial Chamber has found that, based on the evidence presented by the Prosecutor, there is reasonable basis to believe that the six men are criminally responsible for several extremely serious crimes - murder, forced displacement, persecution, rape and other inhumane acts. In the interests of the victims, the evidence cannot be ignored - the suspects are now invited to respond to the alleged charges in a court of law.
'The Kenyan Government is walking a delicate line in its current approach to the ICC. On one hand, Kenya has requested that the Security Council of the United Nations use its authority under Article 16 of the Rome Statute to defer the ICC's Kenya investigation for a year, claiming that by pursuing the six suspects, the ICC could derail a delicate political rebuilding process. On the other hand, the Government has extended full cooperation to the ICC for the opening of a field office in Nairobi so that the Court can make contact with Kenyan victims and allow them to exercise their rights under the Rome Statute. NPWJ and the TRP commend both the ICC and the Kenyan Government for the speedy opening of the field office and encourage a similar level of cooperation in all other aspects of the Court's work.
'It is important to keep in mind that the Government of Kenya is sharply divided on the issue of cooperation with the ICC. Prime Minister Raila Odinga has stated clearly that the decision to request a deferral under Article 16 was not approved by the full Kenyan cabinet . Security Council members and other States should avoid entertaining a request that important parts of the Government itself have denounced, in order to show their support for Kenya's unity government.
'NPWJ and the TRP urge the Government of Kenya to take all possible steps to ensure that the six suspects appear at the ICC in April. At the same time, Kenya should immediately move forward at the domestic level with investigations and prosecutions of other people responsible for crimes committed during the post-election violence. The ICC is only intended to deal with those bearing the greatest responsibility - in order to Kenya to fully break the cycle of impunity and prevent future election-related violence, the Government itself must make it clear that Kenya does not tolerate politically-motivated mass crimes. There is no need to defer the ICC investigation in order to move forward with the domestic process'...."
3. "Questions and Answers on Kenya and the International Criminal Court." Human Rights Watch, March 2011,
II. ICC STATEMENT
"Pre-Trial Chamber II delivers six summonses to appear in the Situation in the Republic of Kenya", Press Release, International Criminal Court, 9 March 2011, http://www.icc-cpi.int/NR/exeres/1E8EDBFF-857A-4E0D-A9B6-6B6D12974CAA.htm<https://exchange.wfm-igp.net/owa/redir.aspx?C=db8c1e70668a4155a1ecf22d604cd6b8&URL=http://www.icc-cpi.int/NR/exeres/1E8EDBFF-857A-4E0D-A9B6-6B6D12974CAA.htm>
"On 8 March 2011, Judge Ekaterina Trendafilova and Judge Cuno Tarfusser of 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."
III. RELATED MEDIA COVERAGE
A. COALITION MEMBERS QUOTED
1. "Int'l criminal court summons 6 notable Kenyans," By Mike Corder, Associated Press, 8 March 2011, http://news.yahoo.com/s/ap/20110308/ap_on_re_eu/eu_international_court_kenya<https://exchange.wfm-igp.net/owa/redir.aspx?C=db8c1e70668a4155a1ecf22d604cd6b8&URL=http://news.yahoo.com/s/ap/20110308/ap_on_re_eu/eu_international_court_kenya>
"The International Criminal Court summoned six leading Kenyans Tuesday to face crimes against humanity charges for the deadly postelection violence that tore through the country after its disputed 2007 presidential vote.
...Tuesday's decision came as parts of the Kenyan government, supported by the African Union, are pushing the U.N. Security Council to defer the case for a year while Kenya tries to reform its judiciary so it can handle the cases at home.
In written rulings, judges said the summons should be "sufficient to ensure their appearance before the court."
All six men, who are charged in two separate cases, were ordered to appear in court April 7. If they do not surrender voluntarily, judges can issue arrest warrants.
... Liz Evenson, senior counsel with Human Rights Watch's International Justice Program, welcomed the summonses.
'With today's decisions, there is now a case that the six individuals will have to answer,' she said. 'This is the first effort at rendering justice for victims of horrific violence in postelection Kenya.'
... On Friday, Kibaki appointed Vice President Kalonzo Musyoka and six ministers as special envoys with a mandate of lobbying the permanent members of the U.N. Security council to request the ICC to defer the cases for a year.
Kalonzo is in New York where he met with the president of the U.N. security council Li Baodong of China on Monday, according to the vice president's press service.
Kalonzo told Baodong that ICC trials could cause friction just as Kenya is in the midst of consolidating peace and national healing and reconciliation.
Kalonzo also plans to meet with U.N. Secretary-General Ban Ki-moon, the U.S. Permanent representative to the U.N. Susan Rice as well as the Representatives of Russia, the UK and France.
Nearly all civil society groups opposed the lobbying and have started a campaign to collect 1 million signatures from Kenyans to show that they support trials by the ICC.
According Ngujiri Wambugu an official of non governmental organization, Change Advocates, they have so far collected 800,000 signatures...."
2. "ICC Summons Six Kenyan Officials on Charges of Crimes Against Humanity", Bloomberg, 9 March 2011, http://www.bloomberg.com/news/2011-03-09/international-court-summons-six-kenyan-officials-over-post-vote-violence.html<https://exchange.wfm-igp.net/owa/redir.aspx?C=db8c1e70668a4155a1ecf22d604cd6b8&URL=http://www.bloomberg.com/news/2011-03-09/international-court-summons-six-kenyan-officials-over-post-vote-violence.html>
"The International Criminal Court summoned six Kenyans to appear before a pre-trial chamber over their alleged involvement in post-election violence in 2008...
'The ICC's decision to issue summonses to six suspects is a step toward justice for the victims of Kenya's horrific post- election violence in 2007-2008," Elizabeth Evenson, senior international justice counsel at Human Rights Watch, said in an e-mailed statement today. 'We look forward to a judicial process without political interference and where the rights of the accused are fully respected.'"
3. "ICC summons 6 suspects over Kenyan violence", Reuters, 9 March 2011, http://af.reuters.com/article/topNews/idAFJOE72801920110309<https://exchange.wfm-igp.net/owa/redir.aspx?C=db8c1e70668a4155a1ecf22d604cd6b8&URL=http://af.reuters.com/article/topNews/idAFJOE72801920110309>
"The International Criminal Court said on Tuesday it was issuing a summons to six suspects in Kenya's post-election violence, a move that could destabilise the country's coalition cabinet which is divided over the issue...
Human Rights Watch senior counsel, Elizabeth Evenson, said: 'With today's decisions, there is now a case that the six individuals will have to answer. This is the first effort at rendering justice for victims of horrific violence in post-election Kenya...
Of course, they are entitled to the full protection of rights. Today's decisions are not a statement of their guilt. There is a judicial process well under way now that should not be subject to political interference.'"
B. OTHER NEWS AND OPINIONS
1. "Kenya now vows to challenge ICC cases" by Bernard Momanyi, Capital FM, http://www.capitalfm.co.ke/news/Kenyanews/Kenya-now-vows-to-challenge-ICC-cases-11988.html
2. "Attorney of Suspended Kenyan Minister: ICC Has No Case Against His Client ", Voice of America, 8 March 2011, http://www.voanews.com/english/news/africa/Ruto-Attorney-ICC-Has-No-Case-Against-His-Client--117621113.html
3. "Kenya seeks UN help in crimes against humanity case", Mail and Guardian Online, 8 March 2011, http://www.mg.co.za/article/2011-03-09-kenya-seeks-un-help-in-crimes-against-humanity-case/
C. AUDIO/VISUAL RESOURCES
1. "Government yet to react to ICC summons", NTV Kenya/Youtube, 9 March 2011, http://www.youtube.com/watch?v=JZHmGTC73E8&feature=player_embedded
CICC's policy on the referral and prosecution of situations before the ICC:
The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.
Communications to the ICC can be sent to:
P.O. box 19519
2500 CM the Hague