A recent ICC decision has given the Ocampo Six hope that the cases against them might be dismissed. The ruling given on December 16 but published on the ICC website on December 23 says the court refused to confirm charges against Rwandese rebel leader Callixte Mbarushimana.
In the Mbarushimana case whose confirmation hearing took place between September 16th and 21st, two judges—Sylvia Steiner and Cuno Tarfusser—refused to confirm the five counts of crime against humanity and eight counts of war crimes against the Rwandese rebel leader despite the seemingly concrete evidence presented against him.
The case, in which presiding judge Sanji Monageng dissented, was lost after the prosecution failed to prove that the attacks on Congo DRC civilians were committed pursuant to organizational policy of Mbarushimana's rebel group FDLR. “The majority is unable to be satisfied to the threshold of substantial grounds to believe that the FDLR pursued the policy of attacking the civilian population,” the judges said even though they acknowledging that gruesome crimes were committed in the areas mentioned.
During the confirmation of charges hearings for Uhuru Kenyatta, Francis Muthaura, Hussein Ali, William Ruto, Henry Kosgey and Joshua arap Sang, their lawyers had pressed the prosecution on the nature of the alleged policy followed by the ODM “network” or the PNU “group” to target civilians.
Yesterday, one of the lawyers representing the Ocampo Six welcomed the decision by the judges in the Mbarushimana case and said it had set a precedent which they hoped the judges hearing the Kenya cases would follow. Kimutai Borsek who is representing Sang described the ruling as “a great encouragement” to the six suspects.
He said that all that was needed for the charges against his client and his co-accused to be dismissed was for the judges to be impartial and 'everything will fall into place.' “All we need is for the judges to be judicious and all our clients will walk away scot free. You can bet your last shilling on this happening from reading the ruling,” Borsek said in reference to the ruling in the Mbarushimana case.
Borsek also took encouragement from the fact that one of the ICC judges—Cuno Tarfusser who refused to confirm the charges against Mbarushimana— is also among the judges who will decide on the Kenyan case. “If the arguments we have seen from the ruling are anything to go by, we only need one more judge- Kaul (Hans Peter) on our side and then we can pop open our champagne bottles!,” Borsek said.
Speaking on behalf of the victims, Kituo Cha Sheria's Priscilla Nyokabi said there were many outstanding characteristics of the Kenyan cases which made them incomparable to the Mbarushimana case. “I do not know much the strength of victims participation in the Mbarushimana case but I certainly know the strength of victim participation in the Kenyan cases is outstanding and could significantly sway the way of the verdict,” Nyokabi said. She also said the defense approach to the confirmation of charges hearing like Uhuru defending himself, the robust participation in the proceedings by all parties to the case and Ocampo initiating investigations on his own motion were unique to Kenyan situation.
On the value attached to reports by UN agencies and NGOs, Nyokabi said the difference in the Kenyan case was that it had one invaluable source of information— the Waki report and its recommendations— which could not be ignored and whose contents and testimony is corroborated by these reports. “It is easy to discount other reports but certainly not Waki which was a state report done with help of international investigators and which in itself was a sincere audit on the conscience of the nation on the post election violence,” she said.
In the Mbarushimana's case, the judges held that the alleged policy—a mandatory requirement for confirmation of crimes against humanity charges— must be “actively” promoted or encouraged by the state or the organization involved. The judges rejected all the evidence presented by chief prosecutor Luis Moreno Ocampo proving the organisational policy of FDLR and said he provided no evidence that the organisation specifically issued orders to target civilians.
Ocampo had claimed there existed an order to create a “humanitarian catastrophe” by directing attacks on civilians aimed at blackmailing the international community into abandoning the military offensive against the group and settling for a negotiated political solution. He however failed to give the court any evidence of insider witnesses directly confirming the existence of such orders.
A parallel to this is one of the Kenya cases in which Ocampo has accused the ODM of attacking civilians of PNU affiliation in order to force a political negotiation on the election crisis. The judges also noted that in the Mbarushimana case, the documents availed by the prosecution did not support the claim that the FDLR was involved in any policy or activity aimed at inflicting violence on civilians.
Similar claims were made by the Kenyan suspects some of whom presented video recordings and other documents to refute Ocampo's claims that they were involved in the planning or execution of the violence. Interestingly, the Ocampo's claim that the FDLR's calls for negotiation and peaceful solution were meant to hoodwink was dismissed by the judges who said there was no evidence adduced to prove this.
During the Kenyan hearings, the prosecution claimed the suspects call for violence was an act of deception. The ICC judges decision to dismiss the reports of the Human Rights Watch report, the UN rapporteur on extrajudicial executions Prof. Philip Alston and a telephone call intercept by UN group of experts in DRC presented as evidence in the Mbarushimana case is also expected to boost the confidence of the Ocampo Six and their lawyers.
In dismissing the telephone call intercept tabled as proof of evidence that a policy existed and orders were given by top FDLR commanders to attack civilians, the judges dismissed it as "indirect evidence" which was not enough to contradict the direct evidence given by insider witnesses called to testify.
Among the evidence tendered by Ocampo in the Kenya cases is a report of the UN monitoring group on Somalia which allegedly tracked the transportation of cargo-loads of weapons from Somalia which were allegedly distributed among the Mungiki over the post election period. The judges in the Mbarushimana case also dismissed Alston's report on Congo DRC dated June 1 2010 which contained more specific statements as to the FDLR's alleged policy to attack civilians.
Ocampo's reliance on anonymous witnesses statements and summaries of anonymous witness statements might also be affected. In the Mbarushimana case, the judges ruled that such evidence had lower probative value and could only be used to corroborate other evidence. The judges also ruled that information gathered from insider witnesses should be used with a lot of caution. In the context of the Kenya case, the insider witnesses are likely to be the Mungiki sect members and others who testified to the existence of a plan or policy to launch attacks against ODM sympathisers in Nakuru among other areas.
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