As the announcement of Kenya’s December 2007 election results is delayed, crowds demonstrate against what they see as the rigging of the election.

(Brussels) – The decision on January 23, 2012 of an International Criminal Court (ICC) pre-trial chamber to send cases to trial against four Kenyans opens the door to justice for victims of Kenya’s 2007-2008 election violence, Human Rights Watch said today. Kenya’s authorities should take all reasonable steps to ensure that the decision does not lead to violence, and to stop violence if it does break out, given that people thought to have been cooperating with the ICC investigations have been threatened, Human Rights Watch said.

A majority of judges confirmed charges sought by the ICC prosecutor against William Samoei Ruto, Joshua arap Sang, Francis Kirimi Muthaura, and Uhuru Muigai Kenyatta in two separate cases. The cases related to crimes committed during the violence that followed what was widely perceived as as a rigged presidential election in favor of the incumbent, Mwai Kibaki, in December 2007. The election violence, which pitted ruling party supporters and the police against opposition-linked groups, claimed over 1,100 lives and forced at least 650,000 people from their homes. The majority of judges declined to confirm charges against two other people, Henry Kiprono Kosgey and Mohammad Hussein Ali.

“Today’s decisions move forward the search for justice for those who lost their lives and their homes in Kenya’s 2007-2008 election violence,” said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. “The judges found that some of Kenya’s most senior leaders should answer for deaths and displacement during the election violence. Trials will break with decades of impunity for political violence in Kenya.”

In one case, a majority of the pre-trial chamber found substantial grounds– the standard applicable to the confirmation of charges – to believe that Muthaura and Kenyatta committed the crimes against humanity of murder, deportation or forcible transfer, rape, other inhumane acts, and persecution. The crimes are alleged to have been committed as part of an attack in Nakuru and Naivasha in late January 2008, directed against perceived supporters of the then-opposition Orange Democratic Movement (ODM).

Muthaura is the head of the public service and secretary to the Kenyan cabinet, while Kenyatta is the deputy prime minister and finance minister.

The judges declined to confirm charges against Ali, who was the Kenyan police commissioner at the time of the violence and is currently the head of the postal service.

The prosecutor had alleged that Ali – along with Muthaura – ensured that the Kenyan police did not intervene to stop attacks against perceived ODM supporters in Nakuru and Naivasha or punish those who carried them out. But the pre-trial chamber did not find sufficient evidence of the participation of the Kenyan police in the alleged attack in Nakuru and Naivasha. In its March decision issuing the summonses, the chamber had also found insufficient evidence that the police were instructed to use excessive force against ODM supporters.

Police officers, who killed at least 405 people during the violence, injured over 500 more, and raped dozens of women and girls, have had absolute impunity in Kenya. Human Rights Watch has previously called on the ICC prosecutor to continue investigations into police shootings and other abuses and to bring additional charges, if the evidence indicates that these abuses amount to crimes within the ICC’s jurisdiction.

“Today’s decision declining to confirm charges against Ali removes for now the last link between the ICC cases and rampant police abuses during the election violence,” Evenson said. “While the ICC prosecutor should redouble his investigations of the police, the Kenyan authorities remain obligated to investigate unlawful police killings and abuse and bring to account those responsible.”

In the other case, a majority of the pre-trial chamber found substantial grounds to believe that Ruto and Sang had committed the crimes against humanity of murder, deportation or forcible transfer, and persecution. Those crimes were alleged as part of an attack in several Rift Valley locations directed against perceived supporters of Kibaki’s Party of National Unity (PNU) in late December 2007 and January 2008. The majority did not find the evidence presented by the ICC prosecutor sufficient to establish Kosgey’s role.

Ruto and Kosgey are senior ODM members as well as members of parliament and former cabinet ministers. Sang was a radio host on the Eldoret-based Kass FM at the time of the violence.

The defendants or the prosecutor can seek permission to appeal the decisions on the confirmation of charges, but permission must be granted by the pre-trial chamber and is not automatic. The prosecutor could also seek to bring the charges that were not confirmed against Kosgey or Ali again, if the prosecutor’s application is supported by additional evidence.

The ICC stepped in as a court of last resort after Kenya’s authorities failed to bring to justice those responsible for the 2007-2008 election violence. According to a December 2011 Human Rights Watch report, in spite of government claims of investigationsover the past four years, only two killings have resulted in murder convictions. Victims of rape, assault, arson, and other crimes – along with those who suffered at the hands of police – similarly await justice.

“The ICC cases are key, but they always targeted a limited number of people,” Evenson said. “With cases now dropped against two of the six, although further ICC proceedings are possible, it becomes all the more important for Kenya to act swiftly to establish a special judicial mechanism to widen accountability for the election violence.”

All six people had appeared voluntarily before the ICC and were not subject to arrest warrants. For the four accused who will now face trial, the decisions do not change the situation. But a violation of any of the conditions set by the pre-trial chamber – including a ban on contact or interference with victims and incitement to violence – could subject them to arrest. Thecontinued cooperation of the four accused, as well as that of the Kenyan government, will be key as the cases move forward to trial, Human Rights Watch said.

The Kenyan government should also take steps to prevent supporters of the suspects from retaliating against other ethnic and political groups or those perceived to be assisting the ICC, and to stop violence if it does break out. In September 2011, family members of a suspected ICC witness were threatened. In December 2011, the offices of an Eldoret-based good governance organization suspected of collaboration with the ICC were raided. No one has been held to account. Victims participating in the ICC cases have consistently highlighted their safety concerns.

“The ICC is obligated to protect its witnesses, but Kenya’s authorities also have a responsibility to protect the safety of all those within its borders,” Evenson said. “To prevent further violence, the Kenyan authorities should show they take these threats seriously by conducting prompt and thorough investigations.”

The ICC’s presidency will establish a trial chamber, composed of three ICC trial division judges, to begin preparations for trial. In previous ICC cases, trial preparations have usually lasted at least a year following a decision on the confirmation of charges.

In the January 23 decisions, the majority of the judges charged Ruto, in one case, and Muthaura and Kenyatta, in the other case, as indirect co-perpetrators under article 25(3)(a) of the Rome Statute, which established the ICC, and charged Sang under article 25(3)(d) for contributing to the crimes allegedly committed.

In the case against Muthaura and Kenyatta, the majority found that the prosecutor had not shown sufficient evidence that destruction of property caused “serious injury to mental health” such that this could be included among the other inhumane acts charged. The inclusion of charges based on the destruction of property was a central concern of victims participating in the proceedings. In both cases, the majority pointed out that the destruction of property forms part of the acts underlying the charges of forcible transfer. Human Rights Watch interviewed numerous people whose livelihoods were entirely destroyed along with their property during the post-election violence.

The judges also considered the defendants’ challenges to the court’s jurisdiction.

Five of the six suspects had contended that the ICC does not have jurisdiction although serious crimes were committed because these crimes were not crimes against humanity. Under the Rome Statute, crimes against humanity are any of a number of acts – like murder, torture, or rape – committed as part of a widespread or systematic attack on a civilian population, pursuant to a state or organizational policy.

These defendants argued that the organizations alleged by the ICC prosecutor to have pursued the crimes against humanity as a policy – in the ODM case, a network drawn from the Kalenjin community, and, in the PNU case, the Mungiki, a criminal gang – are not organizations within the meaning of the Rome Statute, and therefore could not have formed an “organizational policy.” Most of these defendants relied on the definition of “organization” in Judge Hans-Peter Kaul’s dissenting opinions to the chamber’s earlier decisions issuing summonses to appear in the cases.

Judge Kaul also dissented in the January 23 decisions in both cases. He found that although serious crimes were committed in Kenya, and urged their prosecution in Kenya, the crimes did not rise to the level of crimes against humanity and therefore fell outside of the ICC’s jurisdiction.

In the case against Ruto and Sang, the majority declined to revisit its interpretation of “organization.” In both cases, the majority found that the challenges were not fundamentally issues of jurisdiction, but rather related to the merits of whether crimes against humanity had taken place, a factual issue. The majority dismissed the challenges and found that there is sufficient evidence of an organizational policy to commit crimes against humanity to send the cases to trial.

Unlike decisions on the confirmation of charges, the parties do not need the permission of the pre-trial chamber to appeal decisions on jurisdiction.

The Kenya investigation – the ICC’s fifth – was opened in March 2010 after the prosecutor received authorization from the court. Kenya ratified the Rome Statute, which created the ICC, in 2005.

The prosecutor’s investigations have focused on the violence in Kenya that followed what was widely perceived as a rigged presidential election in favor of the incumbent, Mwai Kibaki, in December 2007. Human Rights Watch researchers documented several patterns of violence in the post-election period, including extrajudicial killings and excessive use of force by the police, and ethnic-based attacks and reprisals by militia groups on both sides of the political divide.

In March 2011, the pre-trial chamber issued summonses to appear for six people, and all six appeared voluntarily before the court in April. The hearings to determine whether to confirm charges in both cases – which preceded the January 23, 2012 decisions – were held in September and October.

In March 2011, following the issuing of summonses, the Kenyan government challenged the admissibility of the two Kenyan cases. It cited plans to begin or continue investigations of those responsible for the post-election violence in the context of reforms mandated by the new constitution, promulgated in August 2010. But the pre-trial chamber, in a May decision that was confirmed on appeal, rejected the government’s admissibility challenge. The judges found no evidence that the government was actually investigating any of the six people named in the two cases. The judges held that, under the court’s case law, a promise to investigate is not enough to stop existing ICC cases.

Human Rights Watch has called on the ICC prosecutor to analyze whether crimes falling within the ICC’s jurisdiction were committed in Kenya’s Mt. Elgon region, and if so, to consider opening additional investigations in the Kenya situation to bring to account the people most responsible. In Mt. Elgon, both Kenyan security forces and a local militia group, the Saboat Land Defense Forces (SLDF) committed numerous atrocities between 2006 and 2008. Like the crimes currently under ICC investigation, many of the crimes committed in Mt. Elgon appear to have been orchestrated for political purposes.

In addition to Kenya, the ICC prosecutor has opened investigations in the Central African Republic, Côte d’Ivoire, the Darfur region of Sudan, Democratic Republic of Congo, Libya, and northern Uganda. The prosecutor is also examining a number of other situations in countries around the world. These include Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria, and South Korea. The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over crimes committed in Gaza and the West Bank.