THREE Kenyan leaders accused at the ICC may now seek the disqualification of their cases following the acquittal of Congolese warlord Mathieu Ngudjolo Chui yesterday.
One of the judges who will be trying them--Christine Van Den Wyngaert--rejected a key mode of criminal responsibility under which the three--deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto and former Cabinet secretary Francis Muthaura are charged.
In acquitting Chui, the judge attached a separate "concurring opinion" in which she dismissed the "indirect co-perpetration" mode of responsibility through which the Congolese was charged. She claimed the mode was 'an invention' which had no basis in the Rome Statute.
All the Kenyan suspects apart from former broadcaster Joshua arap Sang are charged with crimes against humanity under the "indirect co-perpetration" stipulated in Article 25 (3)(a) of the Statute. Sang is charged through "having otherwise contributed" to crimes.
"I am firmly of the view that treaty interpretation cannot be used to fill perceived gaps in the available arsenal of forms of criminal responsibility. Even if the 'fight against impunity' is one of the overarching founding principles of the court which may be relevant for the interpretation of certain procedural rules, this cannot be the basis for a teleological interpretation of the articles dealing with criminal responsibility," she said.
Teleological interpretation is the method used by courts when they interpret legislative provisions in the light of the purpose, values, legal, social and economical goals these provisions aim to achieve.
She took issue with the pre-trial chamber in Chui's case for inventing the new mode. She said the article only provided for three modes of criminal liability--perpetration, joint perpetration and perpetration through another person. It does not stipulate co-perpetration.
Yesterday, lawyer Evans Monari who is a member of Uhuru's legal team drew parallels between the Congolese and Kenyan cases and said chief prosecutor Fatou Bensouda should now either withdraw the Kenyan cases in their entirety or postpone them if she decides to file an appeal on the Chui case.
"We argued about this but we were told its a trial matter. Now a trial chamber has ruled in our favor. A prudent prosecutor would not nonchalantly drag on with the case in such circumstances. You either withdraw it or postpone it. In fact, postponement would be an injustice," Monari said.
Justice Van Den Wyngaert said the interpretation by the pretrial chamber in the Chui case was a "radical expansion of Article 25(3)(a) and its therefore a totally new mode of liability." She said the reasoning behind the interpretation was "unconvincing."
"Under the Pre-Trial Chamber's interpretation, it becomes possible to hold the accused responsible for the conduct of the physical perpetrator of a crime, even though he/she neither exercised any direct influence or authority over this person, nor shared any intent with him or her," she said.
The judge also rejected the idea that that a contribution to a non-criminal plan with a risk of criminality can be the basis for conviction. Uhuru has been accused by the prosecution of allegedly fund-raising and financing the 2007 post election violence.
The judge also rejected the notion that perpetration through another person can be equated to control over an organisation. The three Kenyans are accused of belonging to either an "organization" or "network" behind the violence.
Van Den Wyngaert said in interpreting the terms of the different forms of criminal responsibility contained in the statute, judges must strive to give them their 'ordinary meaning' as required by Article 31(1) of the Vienna Convention on the Law of Treaties.
"Any attempt to overextend the label of 'commission' to reach the 'intellectual authors' or 'masterminds' of international crimes is thus fraught with legal and conceptual difficulties," she said.
She noted that the those who drafted the Rome Statute did not include certain forms of criminal responsibility such as planning and conspiracy, which might have been particularly well-suited for the prosecution of 'intellectual authors' or 'masterminds' of atrocity crimes.
She said it is also significant that 'planning' is not contained in the Statute. She pointed out that Article 22(2) of the statute was meant to discourage the "judicial creativity" of the sort adopted by the pretrial chamber.
The article says in case of any ambiguity, definitions shall be interpreted in favor of the person being investigated, prosecuted or convicted. Van Den Wyngaert said the term "common plan" (also severally used in relation to the Kenyan cases) appears nowhere in either the text of the Statute or the reading of Article 25(3)(a).
"The reality is that the Statute does not contain a mode of criminal responsibility that is tailored towards 'masterminds' and 'intellectual authors'. Perhaps one day the Statute may be amended in this regard. However, until that day, I believe that the judges of this Court are bound by the plain wording of the Statute," she said.
In their judgement, judges Wyngaert (Belgium), Fatoumata Diarra (Mali) and Bruno Cotte (France), the prosecution had not proved beyond reasonable doubt that Chui was responsible for the three counts of crimes against humanity and seven counts of war crimes committed in Ituri region of Congo on February 24, 2003. Chui has been held at the ICC detention centre in The Hague since October 2007.