Gender Report Card on the International Criminal ... - YWCA Canada

OTP Situations and Cases
Victims’ Common Legal Representative Sureta
Chana informed the Chamber on 8 September
that two days earlier, a Kenyan Member of
Parliament, Charles Keter (a member of the
ODM), who had attended the confirmation
hearings in The Hague, was heard on the radio
station Kass FM, stating that the identity of
anonymous prosecution witnesses was known
and that these ‘traitors’ would ‘face unspecified
consequences’. 843 These protection issues are
discussed in more detail in the section on
Protection, below.
The Prosecutor v. William Samoei Ruto,
Henry Kiprono Kosgey and Joshua Arap
Sang
In his 15 December 2010 application, the Prosecutor
had sought charges against Ruto, Kosgey and
Sang for four counts of crimes against humanity,
namely: murder; 844 deportation or forcible transfer
of population; 845 torture; 846 and persecution on
political grounds. 847 The charges were all linked to acts
committed in specific locations from 30 December
2007 until the end of January 2008, including Turbo
town, the greater Eldoret area (Huruma, Kiambaa,
Kimumu, Langas and Yamumbi), Kapsabet town
and Nandi Hills town in the Uasin Gishu and Nandi
Districts. Having analysed the information submitted
to it by the Prosecutor, the Chamber found that there
were reasonable grounds to believe that Ruto, Kosgey
and Sang established a network of perpetrators that
had the capability to perform acts that infringed on
‘basic human values’ and that possessed the means
to carry out such widespread and systematic attacks
against the civilian population. 848 It also found that
this network qualified as an ‘organisation’ within
the meaning of Article 7(2)(a), and that there were
reasonable grounds to believe that this network
organised several preparatory meetings at which
important issues crucial for the implementation of
the policy were discussed. 849 As such, the Chamber
concluded that the contextual elements for crimes
against humanity were satisfied.
843 ICC-01/09-01/11-T-12-ENG, p 28 lines 2-6.
844 Article 7(1)(a).
845 Article 7(1)(d).
846 Article 7(1)(f).
847 Article 7(1)(h).
848 ICC-01/09-01/11-1, paras 22-24.
849 ICC-01/09-01/11-1, paras 27-28.
With regards to the specific charges sought by the
Prosecutor, Pre-Trial Chamber II found that there were
reasonable grounds to believe murder, deportation
or forcible transfer of population and persecution
as crimes against humanity were committed. 850 The
Chamber was not satisfied that there were reasonable
grounds to believe torture as a crime against
humanity was committed. 851
The Chamber found there were reasonable grounds
to believe that Ruto and Kosgey were criminally
responsible as indirect co-perpetrators under
Article 25(3)(a). However, it did not find there
were reasonable grounds to believe that Sang was
criminally responsible as a principal perpetrator with
Ruto and Kosgey. Noting its decision in Bemba that
co-perpetration must go together with a notion of
‘control over the crime’, 852 the Chamber found that
there were reasonable grounds to believe that Sang
was criminally responsible under Article 25(3)(d). 853
Accordingly, Ruto, Kosgey and Sang are charged with
murder as a crime against humanity, forcible transfer
of population as a crime against humanity, and
persecution 854 as a crime against humanity. 855
Based on the Prosecutor’s application, the Chamber
was satisfied that there was no significant risk of flight,
and that the three were unlikely not to cooperate if
summoned to appear. 856 Accordingly, the Chamber
was satisfied that issuing Summonses to Appear
would ensure Ruto, Kosgey and Sang’s appearance
before the Court. The Chamber issued the Summonses,
imposing several conditions on the suspects. 857 Should
Ruto, Kosgey and Sang fail to appear or fail to comply
with the conditions set by the Chamber, it reserved
850 ICC-01/09-01/11-1, paras 30-32.
851 ICC-01/09-01/11-1, para 33.
852 ICC-01/05-01/08-424.
853 ICC-01/09-01/11-1, paras 37-39.
854 The Chamber noted that acts of murder and forcible
transfer of population were committed primarily on
political grounds, on the basis of victims’ perceived
support for the PNU, thus constituting persecution.
855 ICC-01/09-01/11-1, para 57.
856 ICC-01/09-01/11-1, para 56.
857 The Summons conditions require the suspects to: refrain
from having contact directly or indirectly with any
person who is or is believed to be a victim or a witness of
the crimes for which Ruto, Kosgey and Sang have been
summoned; 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; refrain
from committing crime(s) set forth in the Statute; and
attend all required hearings at the ICC. ICC-01/09-01/11-
1, p 23.
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