Post by nowayhaha on Mar 16, 2011 11:32:20 GMT 3
The International Criminal Court judge who declined to issue summonses to six Kenyans suspected of being behind the post-election violence says the cases can be dealt with locally.
In his dissenting opinion published on Tuesday night, Judge Hans-Peter Kaul said that Prosecutor Luis Moreno-Ocampo had not convinced him that the crimes committed in Kenya meet the threshold of crimes against humanity.
“Consequently, I have no doubt that the crimes alleged in the application concerning Francis Muthaura, Uhuru Kenyatta and Mohammed Ali fall within the competence of the criminal justice authorities of the Republic of Kenya as a matter to be investigated and prosecuted under Kenyan criminal law,” said Judge Kaul.
The judge ruled that though he was satisfied that the violence was planned and organised, this did not prove that an ‘organisational policy’ exists pursuant to article 7(2)(a) of the Statute.
“Accordingly, I hold that the planning and coordination of violence in Uasin Gishu and Nandi Districts between 30 December to the end of January 2008 alone does not transform an ethnically-based gathering of perpetrators into a state-like ‘organisation’,” said Judge Kaul
He added that the prosecutor had failed to prove that the crimes fall within the jurisdiction of the ICC since he had based his application on “excerpts or a series of sentences, selected from witness statements, reports, press articles and other material.”
“The Prosecutor supported his application, to a large extent, with the same public reports of non-governmental organisations and commissions that he already submitted on 26 November 2009 when seeking the chamber’s authorisation for the commencement of the investigation into the situation in the Republic of Kenya pursuant to article 15 of the Statute,” the German judge said.
He added that he failed, on the basis of the Prosecutor’s presentation of the case and the evidence submitted, to see how an “organisation” could have existed in which the primary actors were the Mungiki gang and the Kenyan police forces,” he said.
However, the judge said he was in agreement with Mr Moreno-Ocampo’s proof that Deputy Prime Minister Uhuru Kenyatta was the principal contact between the Mungiki criminal gang. He however, added that a series of meetings with facilitators and the principal perpetrators did not transform a limited partnership of convenience into an ‘organisation’ within the meaning of the Rome Statute.
“The fact that the ‘cooperation’ between the Mungiki gang and the Kenyan police forces was established shortly before the 2007 presidential elections tends to demonstrate the temporary character of this partnership of convenience,” the judge said.
He added that his analysis had led him to conclude that the Mungiki gang and the Kenyan police forces do not share a common hierarchy but rather maintain separate structures.
“I therefore conclude that the ‘organisation’ as presented by the Prosecutor, consisting mainly of the Mungiki gang and the Kenyan police forces, did not exist,” Judge Kaul said.
Last week, two of the judges of Pre-Trial Chamber II ruled by majority that there was sufficient evidence to try the six suspects named by Mr Moreno-Ocampo for planning or funding violence in Kenya and have already issued summonses ordering the six suspects to appear on April 7.
“In the absence of any evidence proving that the crimes alleged are embedded in an “organizational policy”, I continue to hold that the Court has no jurisdiction ratione materiae over the situation in the Republic of Kenya, including the present case,” said Judge Kaul.
He added that he had no doubt that the crimes alleged in the Application concerning William Ruto, Henry Kosgey and Joshua Sang fall within the competence of Kenya’s criminal justice system.
“I am not satisfied by the evidence supporting the allegation that the three suspects used the ODM structure to plan and organise the attacks against the Kenyan civilian population. It is unclear to me whether the Prosecutor considers the ODM in its entirety to be the Network’s Political Branch or only individual ODM politicians,” said Judge Kaul.
He added that though evidence showed that the three had been “involved in the planning of crimes” there was no link to suggest that the ODM party structure was an integral part of the “Network”.
The prosecutor had said in his application that Mr Ruto, Mr Sang and Mr Kosgey had created a “multi-faceted network” that they used to attack perceived PNU supporters in Rift Valley.
In his dissenting opinion published on Tuesday night, Judge Hans-Peter Kaul said that Prosecutor Luis Moreno-Ocampo had not convinced him that the crimes committed in Kenya meet the threshold of crimes against humanity.
“Consequently, I have no doubt that the crimes alleged in the application concerning Francis Muthaura, Uhuru Kenyatta and Mohammed Ali fall within the competence of the criminal justice authorities of the Republic of Kenya as a matter to be investigated and prosecuted under Kenyan criminal law,” said Judge Kaul.
The judge ruled that though he was satisfied that the violence was planned and organised, this did not prove that an ‘organisational policy’ exists pursuant to article 7(2)(a) of the Statute.
“Accordingly, I hold that the planning and coordination of violence in Uasin Gishu and Nandi Districts between 30 December to the end of January 2008 alone does not transform an ethnically-based gathering of perpetrators into a state-like ‘organisation’,” said Judge Kaul
He added that the prosecutor had failed to prove that the crimes fall within the jurisdiction of the ICC since he had based his application on “excerpts or a series of sentences, selected from witness statements, reports, press articles and other material.”
“The Prosecutor supported his application, to a large extent, with the same public reports of non-governmental organisations and commissions that he already submitted on 26 November 2009 when seeking the chamber’s authorisation for the commencement of the investigation into the situation in the Republic of Kenya pursuant to article 15 of the Statute,” the German judge said.
He added that he failed, on the basis of the Prosecutor’s presentation of the case and the evidence submitted, to see how an “organisation” could have existed in which the primary actors were the Mungiki gang and the Kenyan police forces,” he said.
However, the judge said he was in agreement with Mr Moreno-Ocampo’s proof that Deputy Prime Minister Uhuru Kenyatta was the principal contact between the Mungiki criminal gang. He however, added that a series of meetings with facilitators and the principal perpetrators did not transform a limited partnership of convenience into an ‘organisation’ within the meaning of the Rome Statute.
“The fact that the ‘cooperation’ between the Mungiki gang and the Kenyan police forces was established shortly before the 2007 presidential elections tends to demonstrate the temporary character of this partnership of convenience,” the judge said.
He added that his analysis had led him to conclude that the Mungiki gang and the Kenyan police forces do not share a common hierarchy but rather maintain separate structures.
“I therefore conclude that the ‘organisation’ as presented by the Prosecutor, consisting mainly of the Mungiki gang and the Kenyan police forces, did not exist,” Judge Kaul said.
Last week, two of the judges of Pre-Trial Chamber II ruled by majority that there was sufficient evidence to try the six suspects named by Mr Moreno-Ocampo for planning or funding violence in Kenya and have already issued summonses ordering the six suspects to appear on April 7.
“In the absence of any evidence proving that the crimes alleged are embedded in an “organizational policy”, I continue to hold that the Court has no jurisdiction ratione materiae over the situation in the Republic of Kenya, including the present case,” said Judge Kaul.
He added that he had no doubt that the crimes alleged in the Application concerning William Ruto, Henry Kosgey and Joshua Sang fall within the competence of Kenya’s criminal justice system.
“I am not satisfied by the evidence supporting the allegation that the three suspects used the ODM structure to plan and organise the attacks against the Kenyan civilian population. It is unclear to me whether the Prosecutor considers the ODM in its entirety to be the Network’s Political Branch or only individual ODM politicians,” said Judge Kaul.
He added that though evidence showed that the three had been “involved in the planning of crimes” there was no link to suggest that the ODM party structure was an integral part of the “Network”.
The prosecutor had said in his application that Mr Ruto, Mr Sang and Mr Kosgey had created a “multi-faceted network” that they used to attack perceived PNU supporters in Rift Valley.