Last night, the ICC Trial Chamber for the Ruto/Sang case dismissed charges against the defendants after deliberating on the defence application for a judgement of acquittal (also referred to as a no-case-to-answer motion).
Below is a summary of events and the way forward for the prosecutor, defendants and victims.
This is a long post- sorry, I can’t help that because it’s necessary to explain some of the legal terms in some detail to show why the prosecution case fell apart. But trust me, the actual decision is much, much longer.
WHAT DID THE PROSECUTOR HAVE TO PROVE?
Both Ruto and Sang were charged with crimes against humanity and those charges were confirmed by a Pre-trial chamber of the ICC. In order to secure a conviction for such crimes, the Office of the Prosecutor (OTP) had to prove three components: the contextual elements of crimes against humanity, the underlying crimes and the mode of liability of the defendants.
The contextual element was the same for both defendants: there had to be a widespread or systematic attack against a civilian population. The attack meant multiple acts committed pursuant to a state or organisational policy and the defendants had to know about the attack. The defendant did not, however, need to know every detail of the attack
The underlying crime element was also the same for both defendants. The charges confirmed were for murder, deportation/forcible transfer of people and persecution. Furthermore, each defendant had to intend the conduct to be part of the widespread/systematic attack or know that such conduct was taking place as part of the widespread/systematic attack.
What distinguished Ruto’s charges from Sang’s was the mode of liability. Ruto was charged as an indirect co-perpetrator of the crimes whereas Sang was charged as a contributor to the crimes. Indirect co-perpertration (joint commission of the crime through another person(s)) is a clumsy phrase that incapsulates the following:
- the defendant was part of a common plan or agreement with one or more persons
- the defendant and other co-perpertrators carried out essential contributions in a coordinated manner which resulted in the fulfilment of the material elements of the crime (i.e. fulfilment of the conduct, circumstance and consequence elements of murder, deportation/forcible transfer or persecution described in the ICC Elements of Offences)
- the defendant had control over the organisation
- the organisation consisted of an organised and hierarchical apparatus of power
- the execution of the crimes was secured by almost automatic compliance with orders issued by the defendant
- the defendant was aware and accepted that implementing the common plan will result in the fulfillment of the material elements of the crimes
- the defendant was aware of the factual circumstances enabling him to exercise joint control over the commission of the crime through another person.
With respect to Sang, his role was allegedly contributory, which meant that:-
- a crime under the jurisdiction of the court was committed
- a group of persons acting with a common purpose attempted or committed this crime.
- the defendant contributed to the crime in any way other than those set out in Article 25(3)(a) to (c) of the ICC Statute
- the contribution was intentional
- the contribution was made either with the aim of furthering the criminal activity/purpose of the group or in the knowledge of the intention of the group to commit the crime.
Thus it is clear that proving guilt was not a straightforward matter for the OTP. It is also clear from the modes of liability that the existence of the common plan and of the organisation were going to be key to proving guilt.
Furthermore, the OTP had indicated that it would apply to re-characterise the modes of liability so that Ruto would instead be charged for ordering, soliciting, inducing or contributing to the crimes. Sang would instead be charged with soliciting, inducing or aiding/abetting the crimes.
WHAT WAS THE STANDARD OF PROOF THE JUDGES APPLIED?
Once the Prosecution closed its case, the court had to determine the defendants’ applications for a judgement of acquittal. Because the defendants had not yet presented their case, the question the judges asked themselves was whether there was sufficient evidence- based on what they had heard so far from the prosecutor- on which a reasonable trial chamber could convict. The prosecutor’s evidence had to be taken as a whole in determining sufficiency. If there were inferences to be drawn from circumstantial evidence, then guilt of the accused must be the only or most reasonable inference to draw from that evidence.
THE FINDINGS OF THE JUDGES
The majority of the judges (Chile Eboe-Osuji and Robert Fremr) agreed on the final decision and the review of evidence. They found that a reasonable trier could not convict on the Prosecutor’s evidence. Here are the matters that fatally undermined the OTP’s case:-
- The network- the OPT sought to Ruto’s indirect co-perpetration and Sang’s contribution by proving the existence of a network with a common plan, hierarchy and under Ruto’s control. In a lengthy review of the evidence, Judge Fremr (with Judge Eboe-Osuji agreeing) found the evidence of such a Network insufficient nor was there sufficient evidence of a link between the material elements of the crimes and the alleged members of a Network (paragraphs.27-118).
- Discipline and Punishment mechanism- the OTP sought to prove the elements of essential contribution and almost-automatic compliance with orders by presenting evidence of tribunals to punish Kalenjin PNU supporters. This would have shown discipline and fear of punishment among perpetrators linked to the Network. This too failed to convince the majority (paragraphs 119-122)
- Overall evidence of organisation- the majority felt that the evidence on record could just as easily point to localised organised violence (at village/sub-location level) as to centrally planned violence by a network. What was missing was a link between the local violence and any central Network. And without a Network in existence or any link to a central organisation with a common plan, there was no link to Ruto (as indirect co-perpetrator) or Sang (as a contributor to the plan) (paragraphs 123-130).
- Alternative modes of liability- the majority found no evidence that Ruto ordered, solicited, induced or contributed to the crimes, thus they would not accept re-characterisation of the charges on this basis. The majority made the same conclusion with respect to re-characterising Sang as soliciting or inducing the crimes, or aiding/abetting the crimes (paragraphs 132-143)
Judge Eboe-Osuji agreed with the final decision of mistrial and with the review of evidence. He discussed no-case-to-answer motions and terrmination of cases (paragraphs 40-137), why the political campaign against the court and witness interference led him to choose mistrial rather than acquittal (paragraphs 138-193), the possibility of reparation for victims (paragraphs 194-210), the immunity of heads of state (paragraphs 211-297), and in lengthy obiter dictum (which means something not essential to deciding the case and which creates no binding precedent) he discussed the troublesome definition of ‘state or organisational policy’ in Article 7 of the ICC Statute (paragraphs 298-463).
CONSEQUENCES OF THE JUDGES’ FINDINGS
There were important disagreements among the judges (even when they agreed!): Judge Fremr would have acquitted the defendants in view of the serious weaknesses of the OTP case, but because this was not a ‘normal state of affairs’ he agreed to a mistrial decision along with Judge Eboe-Osuji due to the ‘special circumstances’ of witness interference that benefited the accused (paragraph 148 of his opinion). Judge Eboe-Osuji advocated a mistrial decision but would have proceeded to hear submissions on witness reparations (paragraph 464 of his opinion), something that Judge Fremr felt was not possible without a conviction (paragraph 3 of Eboe-Osuji’s opinion). Only Judge Carbuccia disagreed with dismissing the case as a mistrial: she would have proceeded with the trial and required the defendants to mount a defence.
Why a mistrial and not acquittal? The words of Judge Eboe-Osuji speak for themselves:-
“A verdict of acquittal is particularly unjustifiable in the circumstances,
not only because it will vindicate the illicit objectives of the unseen hands that
had engaged in witness interference, the obvious aim of which is to frustrate
the trial of the accused; but it may also encourage future unseen hands to
interfere with a criminal trial. What was done against this trial — by way of
direct witness interference or undue political meddling (discussed more fully
below) or both — must not become a case study for others inclined to emulate
such tactics in future cases of this Court.” (paragraph 156 of his opinion)
Although it’s not easy to pinpoint the exact provision of the statute that allows declaration of a mistrial, the judges make a convincing point that there are certain situations where even with the weakness of the OTP case, an acquittal would be an injustice (or would encourage the undermining of justice). But is the threat of a mistrial really an adequate deterrent to future witness bribers/intimidators? I’m unconvinced.
This ruling does leave open the possibility of a fresh trial if the OTP finds new evidence for her case. Because there’s no acquittal, there’s no problem of double jeopardy (Article 20 of the Statute). But let’s be honest: under the tremendous campaign of bribery, intimidation and disappearance aimed at ICC witnesses, a new trial is very unlikely. This is why the accused and their cronies have been celebrating like it’s a real acquittal.
THE WAY FORWARD FOR THE DEFENDANTS
The melodramatic celebrations speak for themselves:-
The defendants can look forward to a long life hand-in-hand with the presumption of innocence. But in the back of many minds will be the phrase “I suspect- but I cannot prove…”
THE WAY FORWARD FOR THE PROSECUTOR
The OTP may appeal the decision, but to be honest, the horse has bolted and even the few brave witnesses who actually told the truth in their testimony (and there were some such heroes and heroines) may now think twice about engaging with the court. If, in the view of the trial chamber, no reasonable tribunal could convict on the basis of the OTP case as it is, then even if the OTP were to win on appeal, it is even less likely that such a tribunal will convict after hearing the defence evidence and on the highest standard of beyond reasonable doubt.
Judge Eboe-Osuji also pointed out that the OTP can file charges under Article 70 with respect to witness interference, but he also pointed out that this is a limited remedy against the vicious anti-ICC political campaign that may have indirectly discouraged others from stepping forward to be witnesses (paragraph 193).
The Prosecutor has already introduced reforms to address the challenges thrown up by the most difficult cases her office has brought. She has already intimated that the strategy her office will take against politically powerful suspects will change: the OTP will build broader based cases to avoid the danger of prematurely narrowing on one target. Second, the OTP will try and ensure the cases are as trial-ready as possible to prevent the flaw in the Kenya cases where the cases were confirmed but collapsed once the standard of proof was raised. Third, the OTP will follow a strategy of building upwards (pyramiding) from lower-level offenders to the powerful criminals organising war crimes, crimes against humanity and genocide. This addresses the problem getting state cooperation- something that is easier if powerful members of the political class don’t feel threatened (as happened in Kenya). Going after lower level offenders (though still building up to those who bear the most responsibility) will increase the chances of state support in collecting evidence, finding witnesses, helping victims and getting custody of suspects.
All this is admirable and there is some evidence that it is bearing fruit, but as some have noted there is a trade-off in expenditure, timeliness of investigations and the bringing of new cases.
In addition to strategic changes, the prosecutor has also been more aggressive against alleged witness interference in other cases. That’s why Jean-Pierre Bemba Gombo (already convicted of war crimes and crimes against humanity) and his lawyer are facing additional charges. So there is hope for the future.
THE WAY FORWARD FOR VICTIMS
The victims’ representative has already urged the ICC Victims’ Fund to step in quickly to begin processing claims. But this depends on whether one agrees with Judge Eboe-Osuji’s reading of the law as allowing reparations without convictions- expect a vigorous challenge by doubters.
Certainly the victims cannot expect much from Kenya’s government which regards hand-outs and the closure of camps as an adequate substitute for bringing culprits to justice. Judge Eboe-Osuji disparaged the feeble attempts by the Kenya government at prosecuting PEV cases (paragraph 31 of his opinion). The one good note is that even the judge noted that the peaceful nature of the 2013 election was enabled by the candidates’ knowledge of what was at stake at the ICC trials (paragraph 33-34 of his opinion). After announcing an International Crimes Division years ago, only now (after the last PEV-related case has ended) is the division being brought into existence- but only for future crimes. Pa-the-tic.
Perhaps the peace in the Rift Valley, so dearly bought by the victims’ blood and treasure, will outlast the ICC process. But without real justice, my hopes are not high. Already the political narrative that the 2007-2008 violence was ‘spontaneous exuberance’ rather than organised attacks has received a major boost simply because of the collapse of these case. So, like the Balkans which were once caught in a similar narrative cycle of impunity, atrocity and ethnic violence, certain wounds will fester quietly generation-after-generation; each community in the affected areas of Rift Valley will carefully construct its own version of the events of 2007-2008 and God help us when the wounds burst open once again.
WAY FORWARD FOR KENYA
We all anxiously await to see whether the politicians will carry out their threat to withdraw the state from the ICC. Possibly now that they’ve saved their own from the jaws of justice, they now see the issue as moot. But knowing the vengeful and petty nature of the current crop of leaders, it’s likely that both those who bravely stood to testify truthfully (however few they were), those who helped them and the ICC itself are probably still in their sights.
In the meantime, every Kenyan politician with an ethnic power base now knows that the way to end inconvenient court cases is not to defend yourself in a courtroom, but to mobilise your power base, threaten, bribe and otherwise discourage witnesses and if all else fails seek high office and the intervention of the African Union.
To paraphrase an Al Jazeera correspondent, this is a victory for the political class and no one else.