ICC judges caution Uhuru, Muthaura and Ali

April 8, 2011 12:00 am

, THE HAGUE, Apr 8 – Judges at the International Criminal Court (ICC) have warned that they may issue warrants of arrest against Deputy Prime Minister Uhuru Kenyatta, Head of the Civil Service Ambassador Francis Muthaura and former Police Commissioner Hussein Ali if they breach laid down conditions.

Justice Ekaterina Trendafilova told the three that the court was aware of comments made by some of them in public about the war crimes charges facing them.

"It came to the knowledge of the chamber from newspaper articles in Kenya that there are movements towards retriggering the violence in Kenya by way of delivering dangerous speeches, but I am not referring to anyone in particular," she said on Friday.

She reminded the suspects that "such action would be perceived as a breach of one of the conditions clearly set out in the summonses to appear, namely to continue to commit crimes that are in the jurisdiction of the court."

She said such action "might prompt the chamber to replace the summonses to appear with warrants or arrest.  However, the judges will not prefer to resort to such drastic measures and would rather continue carrying out proceedings smoothly and respect the liberty of the suspects so that they can appear before us as free people."

A similar warning was issued to William Ruto, Henry Kosgey and Joshua Arap Sang who made their initial appearance on Thursday.

During the Friday court proceedings, Amb Muthaura\’s British lawyer Karim Ahmad Khan sought to explain to the court that his client had "never breached any laid down condition".

"Madam President, I have instructions from my client to repeat once again his commitment and willingness to comply vigorously with all the conditions that have been imposed by the bench," he said.

Presiding Judge Trendafilova however, assured all the suspects that hers was a general comment and warning to all of them and not anyone specific.

The judges have now set September 21 as the suitable date for the confirmation of the charges against Messrs Kenyatta, Muthaura and Maj Gen (rtd) Ali.

A status conference for all the parties is scheduled for April 18.

The presiding Judge has however informed the suspects that they may opt to send their legal representatives to the conference which will be held at the ICC.

Last week, the presiding judge rejected an application filed by ICC Prosecutor Luis Moreno Ocampo against the trio seeking the inclusion of violence that was committed in Kibera slum in Nairobi and Kisumu where hundreds of innocent people were shot dead by the police.

In his appeal, Mr Ocampo had argued that he had sufficient evidence to show that the three suspects who appeared in court on Friday afternoon wanted for crimes against humanity committed in Kenya during the post election violence were responsible in planning chaos in the two jurisdictions in the context of organisational state policy.

Judge Trendafilova who is the court\’s president ruled that the three cannot be held responsible for what Ocampo had referred to as organisational state policy because "there is no evidence showing that there was any such policy."

The judge was part of the two who issued a majority ruling summoning the suspects to the ICC next week for an initial appearance over several other charges levelled against six suspects [the three included] but rejected to include violence in Kibera and Kisumu.

In this sense, she said, "for a person to be considered responsible for crimes against humanity under the Statute, it is not necessary that the policy pursuant to which the attack was carried out be attributable to that person; it is necessary only that the person committed or contributed to the commission of a crime in the knowledge that his or her criminal conduct was part of a widespread or systematic attack against a civilian population in furtherance of a State or organizational policy."

The Prosecutor had also argued in his application filed mid last month that failure to incorporate the crimes committed in Kibera slum and Kisumu will amount to prejudice of the case.

"Accordingly, the Judge is not persuaded by the arguments put forward by the Prosecutor to demonstrate that the issue affects the fairness of the proceedings currently before the Chamber or the outcome of the related trial," she ruled.

She also observed that "as a matter of law, the concerns raised by the Prosecutor with respect to the prejudice allegedly caused by the 8 March 2011 Decision have no grounds in the statutory documents of the Court."

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