The following is an excerpt from JUDGE EBOE-OSUJI’S decision on the application by William Ruto and Joshua arap Sang for acquittal. He argues that the prospects of conviction in an ICC case are wholly beyond the control of the victims since they do not control the prosecution theory or choice of litigation strategy that may not lead to conviction; or its competence in general.
Finding that the level of interference and political meddling in this case has been such as to occasion a declaration of mistrial must not detract from the proven reality — indeed, the gravity — of the Kenya post-election violence of 2007-2008. The miscarriage occasioned the judicial inquiry obscured only the question of acquittal of the accused on the basis that the prosecution case, at its closing, has been too weak to warrant continued inquiry into the individual criminal responsibility of the accused.
It must be clearly said that there is no doubt at all as to the occurrence of the post-election violence. Nor is there any doubt that the violence occasioned serious harm to victims.
To repeat, I am satisfied from the available evidence and the admissions of the parties that the post-election violence did occur and that it resulted in serious harm to victims. Notably, the parties never contested those facts, and the Chamber has heard nothing that could cast doubt on the overall findings of the Waki Commission in this regard.
Indeed, it is recalled that the Waki Commission reported that ‘the pattern of violence showed planning and organisation by politicians, businessmen and others who enlisted criminal gangs to execute the violence.’ It would betray a very grave misunderstanding on the part of anyone to cite the majority decision of this Chamber as contradicting the Waki
Commission in their finding that the 2007 election was characterised by a culture of political violence in Kenya, or even that the violence in the Rift Valley region had been planned.The only matter of evidential difficulty implicated in the Chamber’s majority decision concerns only the responsibility of the accused for that violence. That being the case, I am of the firm view that the victims of the post-election violence should not be left in the cold, because the proceedings before this Chamber were polluted by undue interference and political meddling, which obscured an accurate assessment of the criminal responsibility of the accused.
But before discussing the matter of reparation (or assistance in lieu of it) for victims of the post-election violence, it may be appropriate to say a few words about the pronouncements of the Appeals Chamber in the Lubanga reparation judgment.377 It may be tempting to interpret that case as standing for a principle to the effect that, at the ICC, conviction is a prerequisite to reparation.
Key factor in Lubanga appeal
Such an interpretation would be both unnecessary and undesirable, in my view. It is unnecessary because, as a matter of ratio decidendi, a key factor of the Lubanga reparation appeal is that there had in fact been a conviction in the trial. But despite that conviction, the Trial Chamber did not lay the reparation obligation squarely at the foot of the convict. Rather, the Trial Chamber imposed upon the Trust Fund for Victims the reparation obligation in the case that should more appropriately encumber the convict. There is indeed much value in imposing the reparation obligation upon a convict, notwithstanding that there may also be an expectation on someone else to attend to assistance to victims (in lieu of or in addition to reparation) on ex-gratia or no-fault basis.
The value of laying the reparation obligation squarely at the foot of the convict includes the victims’ entitlement to reparation from those individually responsible for the harm. That entitlement attaches — to be made good — upon the convict whenever possible. Hence, it was correct to require that the reparation obligation be imposed squarely upon the convict, despite his indigence, not least because he may later come into means. Seen in that light, the factor of conviction is an intrinsic feature of the Lubanga reparation appeal judgment. It thus makes it unnecessary to view that appellate judgment as establishing a general principle to the effect that conviction is a sine qua non to reparation at the ICC.
Another sense in which it is unnecessary to interpret the Lubanga reparation appeal judgment as establishing a principle of conviction as a necessary condition of reparation at the ICC is because there is no general principle of law that requires conviction as a prerequisite to reparation.
Notably, the criminal injuries compensation schemes in many national jurisdictions do not require conviction as a prerequisite to reparation. The representative norm in this respect is adequately captured in the European Convention on Compensation of Victims of Violent Crimes.
It provides in article 2(1) that when compensation is not fully available from other sources, the State shall contribute to compensate victims (and their survivors) for serious injuries occasioned by malicious crimes of violence. And, more importantly for present purposes, the Convention provides in article 2(2) that ‘[c]ompensation shall be awarded in the above cases even if the offender cannot be prosecuted or punished.’
The norm of compensation for victims regardless of prosecution or punishment of the offender is particularly significant in view of the provision of article 75(6) of the Rome Statute, which says that ‘[n]othing in this article shall be interpreted as prejudicing the rights of victims under national or international law.’
It is also undesirable to require conviction as a prerequisite to reparation at the ICC. Reasons for that view include the following. First, the fact of victimhood as an incident of an attack against a civilian population is, in most cases, an objective reality that burdens the victims, regardless of the question of individual criminal responsibility for the harm inflicted upon them.
Second, the traditional model of reparation for criminal injuries through tort law is often criticised for its social inefficiency, which depends on the expensive process of litigation. It is for that reason, among others, that some jurisdictions have adopted no-fault injuries compensation schemes, which also cover criminal injuries, such as seen earlier. That concern is compounded in a reparation scheme that depends on criminal conviction. For in such a conviction-based scheme, the inefficiencies of litigation for purposes of reparation are compounded by a standard of proof for conviction in criminal cases that is higher than the standard of proof in tort law. This is not necessarily to say that criminal litigation may be avoided for purposes of reparation at the ICC.
It is rather that it is enough that the ICC litigation judicially establishes victimhood, for purposes of reparation (or assistance in lieu). It does not follow that reparation (or assistance in lieu) must depend on the conviction of the accused.
Third, the prospects of conviction in an ICC case are wholly beyond the control of the victims: they do not control the matter of the prosecution theory of the case or choice of litigation strategy that may not lead to conviction; nor do they control the matter of competent prosecution of the case in general.
Fourth, conviction may be frustrated, as in this case, by the conducts of persons or States that choose to interfere or intermeddle in the prosecution with the object or effect of frustrating the completion of the trial and the prospect of conviction.
Finally, the often lengthy criminal justice process may delay the process of rehabilitation that is associated with reparation for victims, even in the event of a conviction.
The foregoing reasons and more compel me to the view that the question of reparation or ex gratia assistance in lieu of reparation for the victims of the Kenyan post-election violence of 2007-2008 is ripe for examination without further delay: notwithstanding the absence of a conviction.In that connection, certain underlying questions necessarily arise to be considered as a next step in this case, possibly in the context of any views and concerns that the victims may see fit to raise through their counsel.
Regarding the victims’ right to reparation, as a matter of entitlement, one question that may arise to be considered is whether there is an obligation upon the Government to make reparation to the victims. That question may arise from the following factors, among others: (a) as a factual matter, the Government failed to protect the victims from the post-election violence that fractured their lives in varying ways; (b) as found by the Waki Commission, there had been previous episodes of post-election violence that went unpunished, hence contributing to a culture of impunity that culminated in the 2007-2008 post-election violence
The testimony of expert Witness Mr Maupeu testified largely to the same effect; (c) what the Government has done by way of genuine investigation and prosecution of anyone for the 2007-2008 post-election violence remains to be seen — this is a critical step in the idea of guarantees of non-repetition, as a measure of reparation; (d) despite the foregoing failings, the Government engaged in a very high profile campaign with the sole object of peremptory termination of the prosecution of the cases brought against persons accused of responsibility in the 2007-2008 post-election violence; (e) the Government’s campaign carried with it the reasonable likelihood of intimidating the actual or prospective prosecution witnesses and their families; and, (f) the result of the Government’s campaign carried out to that effect entails the concern that the judicial inquiry may not produce a conviction, which may then attach the obligation of reparation to the accused persons charged with the conducts that injured the victims.
It is, of course, immediately apparent from these factors, that the question of the victims’ entitlement as such to reparation and any obligation of the Kenyan Government in that regard result from actual acts and omissions on the part of the Government. They do not derive merely from theory of social contract alone — a theory that some have argued as imposing reparation obligations on the State for failing to protect the victim from the criminal harm in question. There is also the related question whether the foregoing factors have in turn engaged serious questions of responsibility for an internationally wrongful act on the part of the Government, such as attracts the reparation obligation, as a matter of customary international law. It is noted that such an obligation need bear no connection to the breach of a treaty obligation as such.
It has been expressed as follows: ‘[S]ince in the international law field there is no distinction between contractual and tortious responsibility, … any violation by a State of any obligation, of whatever origin, gives rise to State responsibility and consequently, to the duty of reparation.’ This principle has now been codified in the International Law Commission’s draft articles on the Responsibility of States for Internationally Wrongful Acts. Article 1 expresses the principle that ‘[e]very internationally wrongful act of a State entails the international responsibility of that State.’
Does it or does it not amount to an internationally wrongful act for the government of a State to set out to meddle with an on-going case before an international criminal court, with the view to occasioning its abortion without proper consideration of the charges? Is it material or not that such meddling may have occurred against both a history of failure to protect the victims of the harm that is the subject matter of the judicial inquiry and/or lack of indication that the meddling State had conducted genuine investigation or prosecution? Does such manner of interference raise serious questions of denial of justice for the victims, in relation to their right to the truth (also an element of reparation in international human rights law)? But does that denial not come with it a potential denial to victims of their entitlement to reparation from those individually responsible for the harm — as opposed to ex gratia compensation from the charitable instincts of the international community or a national government?
In the circumstances, the further question arises whether the Rome Statute leaves no scope for this Court to require the Government to make adequate reparation to the victims of the post-election violence without further delay. It may be considered that the jurisdiction of the ICC for purposes of a reparation order ordinarily engages only in relation to individuals and not a State.
But even so, does the question not arise that a State that meddles in the prosecution of a case at the ICC, in a manner that is reasonably likely to frustrate a prosecution and conviction, has by such conduct meddled itself into the jurisdiction of the ICC for purposes of reparation? In those circumstances, does the opinion of the ICJ in the Reparation Case afford judicial precedent for such an imposition on a State in the absence of explicit statutory provision?
These are all difficult questions on which submissions will be necessary. I offer no answers to them now. But there may be occasion to address them at some point, with submissions also received from the Government, given what had occurred in this case.
In any event, the obligation to make reparation as a matter of an internationally wrongful act on the part of a State may well be a gravamen of a remedy that may be open for victims to pursue before an appropriate international human rights body, even beyond the ICC.