February 3, 2012
On 23 January 2012, Pre-trial chamber II of the International Criminal Court (ICC) found that there was sufficient evidence to move the cases against William Samoei Ruto, and Joshua Arap Sang (Case 1) and Francis Kirimi Muthaura, and Uhuru Muigai Kenyatta (Case 2) to trial stage. The judges declined to confirm charges against two other suspects, Henry Kiprono Kosgey and Mohammed Hussein Ali. Although both the Prosecutor and the Defence have the right to appeal the decision, M. Luis Moreno-Ocampo has already stated that the Prosecution would not make use of this right.
The six suspects faced charges of crime against humanity for their alleged role in post-elections violence in Kenya in 2007-2008. Following the Prosecutor’s investigations in Kenya, Ruto, Kosgey and Sang, and Muthaura, Kenyatta and Ali were summoned before the Court in March 2011. All of them appeared willingly, and in September 2011, confirmation of charges hearings began before Pre-trial Chamber II. The charges included murder, deportation or forcible transfer of population, persecution, and, for Case 2 suspects, also sexual violence. This week, Pre-trial Chamber II, one judge dissenting, decided to confirm the charges against Ruto, Sang, Muthaura and Kenyatta.
Of particular interest, is the Chamber’s ruling on a request by victims for charges of destruction of property to be added, as well as its finding that in the present case, that cumulative charging was permissible.
In Ruto et al., the Chamber rejected the claim from the Victims’ Legal Representative, Ms. Chana, that the Prosecutor had ignored the crimes of property destruction and lootings. On 30 September 2011, Ms. Chana had asked that the Chamber request the Prosecution to amend its charges in order to explicitly include these crimes. In response, the judges found that although property destruction and looting were not included in the charges as such, they were taken into account under the count of forcible displacement, as “the "coercive acts" through which forced displacement actually occurred.” Moreover, the Chamber considered that Ms. Chana’s request would imply requesting the Prosecutor to add a new charge, rather than to amend the existing ones –an action that is not allowed by the Statute.
In Muthaura et al., the Chamber rejected the Prosecution’s submission that destruction of property and looting had incurred ‘severe injury to mental health’ and thus amounted to inhumane acts constituting crimes against humanity. The Chamber, while recognising that there was sufficient proof that such acts occurred, remained unconvinced that the evidence heard was sufficient to establish the mental injury they had allegedly caused.
While a lot of questions remain unanswered in the absence of any reparation proceedings having yet taken place before the ICC, it seems unlikely that victims of crimes other than those charged will be able to claim reparation before the Court. Thus, the failure to confirm or add charges in relation to looting and destruction of property could make it more difficult for victims of these crimes to claim reparations after trial.
In addition, the issue of cumulative charging had arisen in the Ruto case. This practice implies that the same criminal conduct can be prosecuted under two different counts. In this case, the Defence had argued that as the elements of murder and forcible displacement were fully subsumed within the charge of persecution, acts of murder and forcible displacement should not be prosecuted under two separate counts. Therefore, only the charge of persecution should be retained. The Chamber clarified that as long as each count required a materially distinct element not contained in the other, cumulative charging permissible. It then found that the counts of murder and forcible displacement did require materially distinct elements from the count of persecution, thus cumulative charging was appropriate.
Several NGOs have welcomed the Court’s decision, and urged the Kenyan Government to fully cooperate with the ICC. They have also emphasised the necessity to try lower-level suspects at the national level as a way to end long-standing impunity for officials in Kenya, especially among police forces.
 Decisions on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382 and ICC-01/09-01/11-373, 23 January 2012
 Under article Article 61(7)(c)(ii) of the Rome Statute, the Pre-Trial Chamber may “adjourn the hearing to consider (…) amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.”
 ‘Final written observations of the Victims' Representative in relation to the confirmation of charges hearing’, 30 September 2011, para. 11
This is a welcome discussion on what it legally means by looting and destruction of property under the ICC and what the victims perceive as crimes also committed by perpetrators of crimes against humanity. The law is still developing. However, the major concern still remains on who will compensate and reparate the victims of looting and whose property was destructed an destroyed, and are not part of the victims list under the ICC. This is an issue that needs to be taken to account, largely at the National level.
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