The hearing to confirm charges against three Kenyan citizens accused of being involved in the commission of crimes against humanity in Kenya entered its second day on Friday September 2, 2011 as members of the Office of the Prosecutor presented evidence at the International Criminal Court (ICC) in The Hague, hoping to persuade Pre-Trial Chamber (PTC) judges to confirm the charges against Kenyan Ministers of Parliament William Samoei Ruto and Henry Kiprono Kosgey, and radio broadcaster Joshua Arap Sang. The defense also began making their submissions today, hoping to convince the judges why the case against their clients should not go to trial.

Following the close of the prosecution’s evidence, defense counsel for Mr. Ruto, British lawyer David Hooper began his presentation on behalf of his client, reminding the Chamber that the prosecutor bears the burden of demonstrating “substantial grounds” to warrant a trial and insisting that the Prosecutor had not met that burden. Mr. Hopper urged the judges not to confirm the charges against Mr. Ruto, stating that the Prosecution’s case has been a bad one.

“Better to stop a bad case now than to have it drag on for years,” defense counselor Mr. Hooper advised.

Mr. Hooper likewise urged the Chamber to proceed with caution since, in his view, the Prosecutor’s stake in these hearings – Kenya being the first ICC situation initiated by the Prosecutor himself – might compromise the rights of the suspects.

All three suspects again appeared voluntarily in Court today.  During the presentations by prosecutors, Mr. Ruto and Mr. Sang registered their incredulity by smiling, laughing, and shaking their heads.  Mr. Kosgey evinced little reaction.

Prosecutor Cynthia Tai alleged that the crimes at issue before the Court – crimes against humanity including murder, forcible transfer of population, and persecution – had been carried out in furtherance of an organizational policy designed to create a uniform voting bloc in the Rift Valley district in Kenya.  Accomplishing that aim, she submitted, had required the intentional identification and persecution of perceived supporters of incumbent President Mwai Kibaki’s Party of National Unity (PNU).

Ms. Tai detailed a “network” of organizers and perpetrators that included contributions from media – including Mr. Sang, who is accused of directing perpetrators through encoded broadcasts – financial support from area businessmen to fund the acquisition of weapons and the provision of transport, and the participation of certain elders of the Kalenjin tribe, and former military generals.

According to witness testimony cited by the prosecution, atop that network sat Mr. Ruto, under whom operated Mr. Kosgey.  The prosecution argued that the “only purpose” of their network had been “criminal.”

Prosecutors then detailed the “widespread and systematic” attacks against the civilian population in the Rift Valley, including the burning and looting of homes, the hacking to death of adults and babies alike, the use of bows and arrows to prevent the escape of fleeing citizens, and the intentional burning alive of two hundred individuals – mostly women and children – who had sought refuge inside an area church.

That perpetrators were systematically transported into target areas, that they established numerous roadblocks barring the escape of residents, and that they regularly utilized fuel to burn homes and businesses demonstrated, the prosecution alleged, that the violence had been organized in advance and directed by leadership.

Citing witness testimony, prosecutors relied on eight alleged organizational meetings, beginning at least as early as December 2006 and some of which allegedly took place in Mr. Ruto’s home, to establish the individual criminal responsibility of Mr. Ruto, Mr. Kosgey, and Mr. Sang.

The suspects are charged with “indirect co-perpetration,” a legal concept suggesting that together, they organized and directed others to commit crimes in furtherance of their common plan and on behalf of the organization they directed.

During today’s afternoon session, Mr. Hooper, on behalf of Mr. Ruto, worked to undermine the prosecution’s theory and to re-characterize his client as a legitimate and widely respected political leader committed to peace and “abhorring” violence.

Alleging the insufficiency of the prosecution’s evidence, Mr. Hooper submitted that the prosecution’s entire case hangs on the “highly redacted” testimony of seven anonymous prosecution witnesses, the “probative value” of which is diminished insofar as defense have been denied an opportunity to cross-examine their credibility.

Mr. Hooper accused the prosecution’s witnesses of having “lied,” alleging they hoped to gain advantages by virtue of their association with the ICC, a theory centrally featured in the defense of another trial before the ICC, that of Mr. Thomas Lubanga.

Mr. Hooper lamented the failure of the prosecutor to investigate exculpatory evidence, “a mandatory duty” imposed on the prosecutor by the Rome Statute, the document now ratified by 117 States establishing the ICC.

“You don’t have to turn over very many stones in the Rift Valley to come across exculpatory evidence,” Mr. Hooper proposed, alleging “dereliction” in the prosecutor’s case.

Mr. Hooper also devoted considerable attention to alleging that the prosecution’s submissions were simply too vague and were so insufficiently specific as to be unhelpful.  He lamented that the prosecution had failed to attach names to their frequent use of such phrases as “others,” “network,” “supporters,” “subordinates,” “businesses,” and “elders.”  “When and who?” Mr. Hooper wanted to know.

He likewise challenged the logic of the defense theory, suggesting that his client aspires to the Kenyan presidency and would not risk “alienating” himself from demographics comprising half the country’s constituency by plotting to murder, forcibly displace, and persecute members of their tribes.

In a surprising move, Mr. Hooper yielded the last twenty minutes of the evening to Ms. Caroline Buisman, who submitted that “indirect co-perpetration” does not exist as a theory of liability in international law.

Ms. Buisman argued that although the Pre-Trial Chamber in the Lubanga and Katanga cases had confirmed charges of indirect co-perpetration, such a form of criminal liability has been rejected by both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Tribunal for Lebanon (STL) and is absent from the Rome Statute.

Insisting that this mode of liability unhelpfully conflates “joint perpetration” and “indirect perpetration” – two modes of liability that are recognized by the Rome Statute – Ms. Buisman invited the Chamber to avoid the mistake of law made elsewhere in the ICC.

The defense has therefore presented the Pre-Trial Chamber with three opportunities to terminate the proceedings: by ruling that the Court lacks jurisdiction (insofar as the alleged crimes fail to satisfy the definition of crimes against humanity, a conclusion twice reached by Pre-Trial Chamber Judge Hans-Peter Kaul), by declaring the Prosecutor’s evidence insufficient to confirm the charges, or by declaring the charges legally
unsound.

The hearing will continue Saturday, when the defense for Mr. Ruto will call two witnesses.

Jeffrey Pierce (Stanford Law School) and Alpha Sesay wrote this report.