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Q+A: ICC to decide whether Kenyan suspects face trial
January 17, 2012 / 2:17 PM / 6 years ago

Q+A: ICC to decide whether Kenyan suspects face trial

NAIROBI (Reuters) - The International Criminal Court (ICC) is due to rule by next Monday on whether to try six Kenyans for crimes against humanity for orchestrating the violence that followed the disputed 2007 election.

There are two separate cases for the six men that are being closely watched because of the potential political impact. Two of the men, William Ruto and Uhuru Kenyatta, are running for president at elections due by March 2013.

WHO HAS BEEN CHARGED?

The first case is against former Higher Education Minister William Ruto, former Industrialization Minister Henry Kosgey, and radio presenter Joshua arap Sang, accused of crimes against humanity, including murder, forcible transfer and persecution.

In the second case, Cabinet Secretary Francis Muthaura, Finance Minister and Deputy Prime Minister Uhuru Kenyatta and former police chief Mohammed Hussein Ali are accused of crimes against humanity, including murder, forcible transfer, rape and persecution.

WHAT DECISIONS COULD THE ICC TAKE?

The ICC’s pre-trial chamber made up of three judges will decide if the evidence presented by the prosecutor is sufficient to commit the suspects for trial.

The following are the likely possibilities:

* The court may confirm the charges, totally or partially, against all or some of the suspects if it is convinced there are “substantial grounds” to believe a suspect has committed a crime.

* The pre-trial chamber may decline to confirm any of the charges. The case will not proceed to trial. It remains open to the prosecutor to request confirmation for these charges at a later date by presenting additional evidence.

* The chamber may also ask the prosecutor to provide more evidence, to conduct further investigation or to amend the charges if the evidence appears to establish a different crime.

IS THE PRE-TRIAL CHAMBER‘S DECISION FINAL?

No. Both the prosecutor and the suspects can request the pre-trial chamber’s leave to appeal.

If the authorization is granted, the appeals chamber composed of five judges may consider the issues identified as appealable by the pre-trial chamber. That does not mean the confirmation of charges hearings will be held a second time.

ARE THE SUSPECTS REQUIRED TO BE AT THE HAGUE FOR THE RULING?

No. They will be notified of the decision through their defense counsel.

IF THE CHARGES ARE CONFIRMED AGAINST A SUSPECT, WILL THAT PERSON BE KEPT IN THE CUSTODY OF THE COURT?

If one or more charges are confirmed, totally or partially, against a defendant, that person will remain free unless ordered otherwise by the judges. The person must, however, attend the trial at The Hague. The Rome Statute does not allow trials in the absence of the defendants.

IF A SUSPECT HAS TO FACE TRIAL, WILL THAT BLOCK THEM FROM TAKING PART IN KENYAN ELECTIONS?

Candidates’ eligibility to run for office in Kenya is governed by the Kenyan Constitution and laws, not by the Rome Statute that established the ICC. It is up to Kenyan authorities to interpret and apply national laws on that issue.

CAN THE ICC FREEZE THE ASSETS OF THE SUSPECTS?

The ICC may request a state’s cooperation for identifying, tracing and freezing or seizing proceeds, property and assets. Suspects’ assets can be frozen to ensure reparations can be paid to victims.

IF CHARGES ARE NOT CONFIRMED, WHAT HAPPENS TO WITNESSES?

In the Kenyan situation, some witnesses were granted protective measures. The ICC says that if the charges are not confirmed, it would drastically reduce the risk posed to these witnesses. If the risks continue after the decisions on the charges, the witnesses will continue to receive protection.

Source: International Criminal Court

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