Crimes Against Humanity In Kenya

In the international crime spectrum the “Crimes Against Humanity” is a consolidation of many brutal and morally unjust crimes. This offense was ratified in the Nürnberg Charter and integrated to the Roman Statute of the ICC. The ICC (International Criminal Court) defines this violation of the law as “Crimes against humanity consist of various acts—murder, extermination, enslavement, torture, forcible transfers of populations, imprisonment, rape, persecution, enforced disappearance, and apartheid, among others—when, according to the ICC , those are “committed as part of a widespread or systematic attack directed against any civilian population. “The term also has a broader use in condemning other acts that, in a phrase often used, “shock the conscience of mankind.” World poverty, human-made environmental disasters, and terrorist attacks have thus been described as crimes against humanity. The broader use of the term may be intended only to register the highest possible level of moral outrage, or the intention may be to suggest that such offenses be recognized, formally, as legal offenses.

Considered either as a legal offense or as a moral category, the concept of crimes against humanity embodies the idea that individuals who either make or follow state policy can be held accountable by the international community. It thus modifies traditional notions of sovereignty according to which state leaders and those who obeyed them enjoyed immunity. Political and legal theorists have justified that challenge to the idea of sovereignty in several ways. For some, a crime against humanity is simply an inhumanity of an especially gross type. For others, major atrocities have the potential to damage international peace, for they are either a prelude to external aggression or have effects that spill over state borders. For still others, genocide is at the core of crimes against humanity; the term crime against humanity was first officially used in condemning the Armenian Genocide and was first adopted in law as a response to the Holocaust. Genocidal attacks on people on the basis of group membership implicitly deny the victims’ human status, according to that view, thus affronting all human beings. Yet others reject those views and focus rather on the basic nature of state authority: states are justified only by their capacity to protect their citizens, and, when their powers turn atrociously against a state’s own citizens, they lose all warrants, and those who direct and obey them become subject to judgment and sanction by the entire human community. How to distribute blame between those who direct and those who follow is, however, a contested issue in both morality and law.” This legal definition of the ICC states that a crime against humanity is an attack on a civilian population.

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Furthermore, crimes against humanity involve large-scale violent acts on a variety of different victims of a geographic area. These acts can be methodical meaning that these acts were pre-planned and where systematically carried out by an organized group of followers. Moreover, the main differing factor between genoside and a crime against humanity is that crimes against humanity does not require the target to be a specific group of people, it can be an attack on any mixture of a civilian populous. Unfortunately, as history displays there have been many examples of this type of brutal and unjust crimes. Some places recently affected by the multitude of these heinous crimes include The Democratic Republic of the Congo, Uganda, Darfur, Sudan, Central African Republic, Kenya, Libya,Central African Republic II, Georgia, Burundi. The commonality shared by these countries is that all of them are considered developing countries that have massive problems with the government and the enforcement of its laws. Also statistically these countries are plagued with an intoxicating and alarming amount of corruption. Corruption makes its way up the political chain usually plaguing the entirety of the government. All these factors lead to the inability to effectively control the citizens within the state. Thus, these inabilities lead to certain groups taking advantage of the loopholes presented by the system and committing crimes of unthinkable magnitude. Thus, the ICC has tried many cases involving this violation.

A fairly recent case the ICC tried that involved the charge of crimes against humanity occurred in February of 2016. The crimes at hand occurred in Kenya. The accused involved a politician and a radio broadcaster during the post election phase in 2007. According to the case bio from the ICC the background of the two men are “At the time of the post-election violence (PEV), William Ruto was a prominent ODM member. A power-sharing government emerged after the conflict, with Ruto serving as a cabinet minister. In 2013, Ruto became Kenya’s deputy president with former political adversary and fellow ICC suspect Uhuru Kenyatta elected as president.Joshua Sang was an influential radio broadcaster at Nairobi’s Kass FM radio.” Hence, the Kenyan politician William Ruto and the radio broadcaster named Joshua Sang were charged by the ICC (International Criminal Court) with orchestrating and advocated a series of crimes that resulted in massive amounts of violence that followed the presidential elections in 2007. Both the men conspired with each other and coordinated numerous systematic attacks on the PNU supporters across the Rift Valley. According to statistics of BBC “Some 1,200 people were killed and more than half a million were forced to flee their homes during inter-ethnic clashes driven by fierce political rivalries and the pursuit of power” thus, these attacks quickly became so brutal and victimized so many innocent civilians that they were immediately considered crimes against humanity. Six hundred and twenty eight victims were commissioned during this cases proceedings. Both these men were mandated to show up before the ICC in 2011. The pretrials began in September of that year and all the judges deemed that there was substantial evidence to confirm the charges against these men.

Moreover, there was another man who was deemed to have involvement in this case named Henry Kosgey however, the judges believed that there was a lack of substantial evidence present and declined his charges. The trial was set to officially begin sometime during 2012. During this trial however, many aspects began to not add up. There where numerous inconsistencies with the witnesses called to the stand. Thus, judges of the ICC were forced to drop the case because of a “lack” of evidence, the prosecutor made the statement that there was “widespread witness and evidence tampering.” However, the prosecution could not prove this tampering because there was insufficient evidence. The tampering occurred in the form of killing a number of witnesses before the trial. These actions directly lead back to corruption. These actions make the role of corruption blatantly obvious because there is no way that these people just so happened to be killed randomly right before the trial , there was an obvious execution order placed on their heads ignorer to minimize the evidence against the accused. The ICC officially stated “On 5 April 2016, Trial Chamber V(a) vacated the charges against Ruto and Sang, bringing the trial to a close. The Chamber, however, did not grant Ruto’s request for acquittal nor Sang’s “no case to answer” motion and underlined that the case may be reopened if the prosecutor can provide new evidence. While two of the Chamber’s three judges concurred that the trial should end, they had differing reasons for ruling as such. Judge Robert Fremr found that the evidence presented by the prosecution was insufficient to potentially lead to a judgment of guilt.

Judge Chile Eboe-Osuji agreed but preferred the term “mistrial” as he found it likely that the prosecution case was weakened by witness intimidation and political interference. In her dissent, Judge Olga Herrera Carbuccia argued that the prosecution case had not “broken down” as alleged by the defense and that the trial should continue.” This excerpt from the ICC displays that there are in-fact many challenges present during these case proceedings. Furthermore, on account of this the BBC added by releasing official statements from interviews “The court's decision will come as a blow to the victims of the violence, and their families, who want to know the truth behind what happened, who was responsible - and to claim compensation.'This ruling does not mean the violence didn't occur, it does not mean that the victims do not exist,' said Nelly Warega, a human rights lawyer who represents some of the victims.The pain and ethnic rifts are still felt today, as nobody has yet been held accountable for fomenting the violence which was widely seen as having been organized rather than spontaneous.” In this excerpt from the BBC interviews puts emphasis on the fact that even though there was an unexpected lack of evidence for the prosecution's argument and the case was dropped and new insights are going to be continuously added until justice could be served.

The prosecutors faced a grave amount of problems and challenges when assembling arguments for this case. These challenges came in a variety of different forms. For example many of the witnesses where reportedly killed shorty before the trial. After these mysterious deaths many witnesses withdrew their participation from the case or just simply withdrew their testimony from the official transcript. Furthermore, many witnesses were considered hostile by the judges. When a witness is declared hostile in a courtroom setting the questioning side has the right to ask any and all questions, and the other side cannot object. Thus, declaring a witness hostile retracts all objections like hearsay and opens the line of questioning. Thus, this worked perfectly for the defense in this case. With these events happening the prosecution faced challenges that they were not initially prepared for. This is so because this is the first time in the history of the ICC that witnesses where declared hostile by the judges. Furthermore, the defense preached that the prosecution coached the witnesses testimonies for financial incentives. Another challenge faced was that the defense argued that there where jurisdictional issues present in the case. The reasoning the defense gave for this argument was “In March 2011, Kenya challenged the admissibility of the ICC case against Ruto and Sang (and Kosgey). It claimed that the country was undergoing a comprehensive legal and judicial reform and intended to investigate and prosecute the cases domestically. In rejecting the challenge, Pre-Trial Chamber II found there were no such ongoing domestic proceedings with respect to the three ICC suspects. The Appeals Chamber confirmed this decision in August 2011.On 30 August 2011, the defense for Ruto and Sang challenged the Court’s jurisdiction over the case, arguing that the level of organization and structure within which the crimes were allegedly committed did not reach the requisite level for crimes against humanity under the Rome Statute”. However the court ultimately denied the motion to suppress declaring the there was full jurisdiction in this matter.

More challenges during this trial where security reasons and the safety of the court. The hearing where set to take place in the Hague because of the security threats outside of this location. Lastly, another challenge faced during this case was the applicability of amend rule 68. The ICC states “In 2015, trial judges agreed to the prosecutor’s request to use an amendment to rule 68 of the ICC’s Rules of Procedure and Evidence (RPE) to present during trial pre-recorded testimony from five prosecution witnesses who had recanted their statements. Both Ruto and Sang appealed the decision, arguing that the ICC’s governing body, the Assembly of States Parties (ASP), had explicitly decided when it amended rule 68 in November 2013 that the amendment would not apply in trials that had already begun—the Ruto/Sang trial opened 10 September 2013.As the Appeals Chamber was considering the matter, Kenya pressured States Parties to include in a report of the 14th ASP session in November 2015 an interpretation of the amended rule, affirming it could not be applied retroactively. While including the requested Kenyan language in the final report created no legal obligations for states or the ICC, civil society strongly condemned Kenya’s attempt to have the Assembly influence the decision-making of independent ICC judges. In February 2016, the Appeals Chamber decided that trial judges had erred in finding the pre-recorded testimony admissible in the Ruto/Sang case, pointing to Rome Statute provisions on non-retroactivity and the fact that the rule amendment was adopted after the opening of the trial. Presiding Judge Piotr Hofmanski, however, stressed that the Chamber’s decision was based solely on the Statute’s prohibition on retroactive application of rule changes that are to the detriment of the accused. Judge Hofmanski further noted that the drafting history of the ASP’s amendment did not reveal that it could not be applied to pending cases as argued by Kenya.” This official statement from the ICC shows that sometimes set arguments do not go as planned. Thus is is explicitly evident that there where numerous challenges present in the duration of this trial. These obstacles eventually led to the case being dismissed for the time being.

In-order to make the ICC’s work more efficient new solutions to handle cases such as this one should be mandated into place. A major one would be a witness protection program meaning that these witnesses wouldn’t be killed off. If proper witness protection is set, then witnesses will not have to recant their testimonies out of fear. Also new treaties could be set forward in order to diminish violence. Furthermore, a preemptive solution to this problem would be setting better limitations and control in place in order to diminish these crimes. Moreover, “The European Council's decision to create a 'Network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes' in 2002 marked a first step in increasing cooperation and the exchange of information in prosecuting international crimes. The hearing was told that Western European states and the EU as a whole are uniquely situated to serve as examples to the wider international community of how universal jurisdiction can be strengthened as an effective, practical and realistic means of combating impunity for the worst international crimes. Also, there is a need to better use existing laws and ensure that international law doesn't lead to conflicting jurisdictions” if there is a solid agreement on jurisdiction the proceeding will go smoother. Thus, this is why the ICC is working hard ignorer to achieve Universal Jurisdiction. If this is achieved then there won't be an issue of jurisdiction in the courtroom.

In conclusion, Crimes Against Humanity are barbarous crimes that are performed on innocent citizens. In the case of Ruto and Sang political greed and hunger led them to commit crimes of unthinkable consequences that affected thousands of innocent people. Sadly because of unlawful tampering with evidence these men still roam free without consequence. Thus, many reforms should be instituted in place in-order to bring justice to the people and imprison the guilty. Certain reforms are necessary to ensure the unbiased proceedings of the court.