Today before a cheering crowd of 60,000 in a Nairobi stadium, Uhuru Kenyatta and William Ruto were inaugurated as the new president and deputy president of Kenya. In his inaugural speech Kenyatta made a veiled reference to the pending charges against him and other Kenyans in the International Criminal Court (ICC) when he said, ““Kenya will strive to uphold our international obligations” but that these obligations must be based on “mutual respect.”
Also in attendance was Uganda’s president, Yoweri Museveni, who told the crowd he applauded Kenyans for rejecting the “blackmail” of the ICC, which was steered by “arrogant actors” to “install leaders of their choice in Africa and eliminate those they don’t like.”
As discussed in a prior post, both Kenyatta and Ruto and another Kenyan (Joseph Arap Sang) are scheduled to go to trial in the next three months before the ICC in the Hague on charges of crimes against humanity in connection with violent deaths after the Kenyan election in 2007.
Now there are rumblings that suggest these three cases are collapsing not long after three other Kenyan cases had been terminated. 
The key case is Kenyatta’s. The Office of the Prosecutor (TOP) recently informed the Court that four of the 12 witnesses against Kenyatta have recanted their testimony because of security threats and fears of retaliation against their families.
In response Kenyatta’s lawyers have asserted that the charges against their client were based on false evidence and have asked the ICC’s Trial Chamber to refer the case to the Pre-Trial Chamber for reconsideration of its January 2012 decision confirming the charges.
On April 5th the ICC Prosecutor issued a public statement deploring “the recent stream of sensationalist reports in the Kenyan media, on the level of witness cooperation [in these cases]. Witness protection remains one of our highest priorities. The Office will therefore not be drawn into any public speculation on the status of witnesses. The courage and integrity of witnesses are essential to the Court’s determination of the truth, which is at the heart of justice. It is in the interest of all concerned to allow justice to take its course.”
A long-time observer of Kenya has said that the Kenyan Supreme Court’s March 30th validation of the election of Kenyatta “secured Kenya’s place as a shining international symbol of impunity” and that the ICC “case against Kenyatta now seems doomed.” According to this observer, witness intimidation and bribery “will only escalate, and it’s hard to see any Kenyan being brave — or foolhardy — enough now to take the witness stand against a head of state.”
This observer even thought “the failure of the Kenyatta case may be the first chime of the death knell for the I.C.C.”
We will have to stay tuned to see what happens in these cases. For this supporter of the Court, the outlook is not bright.
 The Court’s Pre-Trial Chamber has refused to confirm charges against two other Kenyans (Henry Kiprono Kosgey and Mohammed Hussein Ali), and in March 2013 the Office of the Prosecutor withdrew the charges against another Kenyan (Francis Kirimi Muthaura) because of problems with prosecution witnesses, including alleged bribery. These cases also were discussed in the prior post.
 The same problem has emerged with at least one of the witnesses against the other two defendants (Ruto and Sang).
This post will review the current status of the eight situations (all from Africa) currently under investigation by the Office of the Prosecutor (TOP) of the International Criminal Court (ICC) and the 30 individuals that have been charged by the ICC with crimes in those situations.
In July 2004, pursuant to a referral by the government of Uganda, TOP opened an investigation into the situation of the Lord’s Resistance Army (LRA)in Northern Uganda. That has resulted in charges of crimes against humanity and war crimes against five individuals, four of whom remain at large: Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen. The other (Raska Lukwiya) is deceased.
The hunt for Kony and other LRA leaders continues. Uganda has some 2,500 soldiers deployed around the border areas of Central African Republic (CAR) the Democratic Republic of Congo and South Sudan, where Kony and his fighters are thought to spend most of their time. The Ugandan troops are joined by 500 Congolese fighters, 500 South Sudanese and 350 CAR troops, all operating under the auspices of the African Union (AU). They have been assisted by 100 U.S. special forces. These efforts will continue despite the recent coup in the CAR.
On March 18, 2013, TOP issued a statement that LRA members will not be killed or tortured if they surrender to the ICC. All their human rights will be protected and the cases against them will be in accordance with accepted international human rights standards. They will face a fair, impartial and public justice that respects all their rights, including the right to be represented by a lawyer of their choice, and to present evidence in their defense. If convicted they will not be sentenced to death. Therefore, they should hand themselves over and face a fair justice process at the ICC or remain fugitives in full knowledge that military forces from many countries are looking for them, and they may be cornered, captured, and possibly killed or wounded in the process.
In June 2004, pursuant to a referral by the government of the Democratic Republic of the Congo (DRC), TOP opened an investigation into the situation in the country since June 1, 2002. That has resulted in six cases against six individuals.
Thomas Lubanga Dyilo on March 1, 2012, was convicted of war crimes and on July 10, 2012, sentenced to 14 years imprisonment.
On July 8, 2012, the ICC issued its first decision on reparations. It decided that the potential beneficiaries are the direct and indirect victims who suffered harm following the crimes of enlisting, conscripting and using children under the age of 15 in Ituri in the DRC (9/1/02–8/13/03), including family members of direct victims and individuals who intervened to help the victims or to prevent the commission of these crimes. The decision also established the following principles for reparations:
no discrimination as regards age, ethnicity or gender;
reconciling the victims of child recruitment and their families and communities in Ituri;
preserving their dignity and privacy;
taking into account the age of the victims and the sexual violence that they may have suffered; and
the need to rehabilitate the former child soldiers within their communities.
Germain Katangawent on trial (with Mathieu Ngudjolo Chui) on November 24, 2009, on charges of crimes against humanity and war crimes within the meaning of Article 25(3)(a) of the Statute (committing the crimes jointly through another person). On February 7, 2012, evidence in the case was closed and closing arguments were heard in May 2012 by the Trial Chamber.
On November 21, 2012, the Chamber, 2 to 1, issued an order severing Mr. Chui from this case and deciding that the mode of liability of Mr. Katanga might be changed under Regulation 55(2) to Article 25(3)(d) of the Statute (contributing in any other way to the commission of the crimes by a group of persons acting with a common purpose).
This proposed change (after the trial) was appealed by Mr. Katanga, and on March 27, 2013, the Appeals Chamber, 2-1, affirmed the Trial Chamber. It held that the decision was in accordance with Regulation 55(2) and did not violate the defendant’s right to a fair trial. However, it said, the Trial Chamber will have to be vigilant in its further deliberations to ensure that this right will not be infringed by further trial proceedings.
Mathieu Ngudjolo Chui , as just indicated, was tried with Mr. Katanga from November 24, 2009 through May 23, 2012 on charges of crimes against humanity and war crimes within the meaning of Article 25(3)(a) of the Statute (committing the crimes jointly through another person), but on November 21, 2012, Mr. Chui’s charges were severed.
On December 18, 2012, the Trial Chamber issued its unanimous verdict acquitting Mr. Chui of all charges because it had not been proven beyond reasonable doubt that he was the commander of the Lendu combatants from Bedu-Ezekere during the attack against the Bogoro village on 24 February 2003. On December 21, 2012, Mr. Chui was released from detention pursuant to an order by the Appeals Chamber.
The Office of the Prosecutor has appealed that verdict.
Bosco Ntaganda has been charged with three counts of crimes against humanity and seven counts of war crimes.
On March 22, 2013, he voluntarily surrendered himself to the U.S. Embassy in Rwanda and asked to be turned over to the ICC. His decision prompted speculation as to why he did so. One theory says he was threatened by member of his own rebel group and wanted to save his own life. In any event, soon thereafter he made his initial appearance before the Court and said he was not guilty. The date for his confirmation of charges hearing was set for September 23, 2013.
Callixte Mbarushimana was charged with five counts of crimes against humanity and eight counts of war crimes, but on December 16, 2011, the Pre-Trial Chamber refused to confirm the charges, and on December 23, 2011, he was released from the Court’s custody.
Sylvestre Mudacumura on July 13, 2012, was the subject of the Pre-Trial Chamber’s arrest warrant for allegedly committing nine counts of war crimes in the DRC, including attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrages against personal dignity. He is at large.
On May 22, 2007, pursuant to a referral by the government of the Central African Republic (CAR), TOP opened an investigation into alleged crimes, in 2002 and 2003, in that country. In which civilians were killed and raped; and homes and stores were looted in the context of an armed conflict between the government and rebel forces.
Jean-Pierre Bemba Gombo is the only case. He is charged as a military commander, with two counts of crimes against humanity: (murder and rape) and three counts of war crimes (murder, rape and pillaging). His trial started on November 25, 2010, and is not finished.
On June 6, 2005, pursuant to a referral by the U.N. Security Council, TOP opened an investigation into the situation in Darfur, Sudan since July 1, 2002.
That has resulted in six cases involving seven individuals, the following four of whom are still at large: (i) Ahmad Muhammad Harun (20 counts of crimes against humanity and 22 counts of war crimes); (ii) Ali Muhammad Ali Abd-Al-Rahman (22 counts of crimes against humanity and 28 counts of war crimes); (iii) Omar Hassan Ahmad Al Bashir, the President of Sudan (5 counts of crimes against humanity, 2 counts of war crimes and 3 counts of genocide); and (iv) Abdel Raheem Muhammad Hussein (7 counts of crimes against humanity and 6 counts of war crimes).
Bahar Idriss Abu Garda was charged with war crimes, but in 2010, the Pre-Trial Chamber refused to confirm the charges, and rejected the Prosecutor’s application to appeal.
Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus are charged with co-commission of three war crimes. Their trial is scheduled to start on May 5, 2014.
In the latest (December 2012) semi-annual report to the U.N. Security Council on this situation and cases, the Chief Prosecutor said that her office would consider whether further investigations and additional arrest warrants were needed to address recent violations, including reports of thwarting humanitarian aid deliveries, attacks on African Union-United Nations Hybrid Operation in Darfur (UNAMID) peacekeepers and bombardments and attacks on civilian populations.
The Chief Prosecutor also told the Council, “The question that remains to be answered is how many more civilians must be killed, injured and displaced for this Council to be spurred into doing its part. There are no words to properly express the frustration of Darfur’s victims, which we share, about the lack of any meaningful progress towards arresting those indicted by the Courts.”
In response, Sudan’s representative told the Security Council that the Prosecutor’s report was flawed, saying it contained unsubstantiated allegations, and contradicted UNAMID reports. The report’s allegations of gender violence, for instance, did not provide sources, and it mistook tribal clashes for fighting between militias. Also, reported attacks on peacekeepers had in fact been committed by bandits now being pursued by Sudanese authorities. He said the Court had become a tool for “blackmail” and for violating the sovereignty of small States and was being exploited by certain political interests.
Among the other statements at the Council meeting, a U.S. diplomat said mounting violence was a grave concern, including targeted civilian attacks and denying UNAMID access to affected areas. Since UNAMID’s initial deployment in 2007, 43 peacekeepers had been killed, in attacks that could be prosecuted as war crimes. The Council should condemn any and all attacks on mission personnel. Reversing the cycle of violence required accountability for the perpetrators, he said, expressing dismay that the Sudanese Government was not cooperating with the Court, despite its obligation to do so fully. Continued impunity for crimes committed in Darfur fomented instability and sent a dangerous message that there were no consequences to attacking civilians. Welcoming the willingness of States to consider creative approaches and new tools to assist the Court, he also embraced further discussions on resolutions concerning Council referrals to the Court. 
On March 31, 2010, the Pre-Trial Chamber, 2-1, authorized TOP to proceed with an investigation that it had proposed into the situation in Kenya between June 1, 2005 and November 26, 2009.
Uhuru Muigai Kenyatta is charged as an indirect co-perpetrator of crimes against humanity (murder, deportation or forcible transfer, rape, persecution and other inhumane acts. The charges stem from his alleged role in funding and organizing ethnic violence leading to the death of an estimated 1,200 people after the 2007 presidential election. His trial is scheduled to start on July 9, 2013.
In the meantime, on March 3, 2013, Kenyatta, who employed anti-ICC propaganda in his presidential election campaign, was narrowly elected President of Kenya, and on March 30th the country’s Supreme Court unanimously rejected a challenge to the election from his main electoral opponent. Kenyatta’s election creates an “awkward” situation, as the New York Times said, for the U.S. and other countries who need good diplomatic relations with Kenya.
William Samoei Ruto was charged with being an indirect co-perpetrator of crimes against humanity. His trial is scheduled to begin on May 28, 2013.
Joshua Arap Sang was charged with having contributed to crimes against humanity. His trial is scheduled to begin on May 28, 2013.
Henry Kiprono Kosgey was charged as an indirect co-perpetrator of crimes against humanity, but the Pre-Trial Chamber declined to confirm the charges.
Mohammed Hussein Ali was charged with crimes against humanity, but in 2012, the Pre-Trial Chamber refused to confirm the charges.
Francis Kirimi Muthaura was charged as an indirect co-perpetrator of crimes against humanity, and the re-Trial Chamber in January 2012 confirmed some of the charges. In March 2013, however, TOP filed notice to withdraw the charges because several people who may have provided important evidence regarding his actions, have died, while others are too afraid to testify for the Prosecution; the Government of Kenya failed to provide TOP with important evidence; and the key witness against him had recanted a crucial part of his evidence and had admitted he had accepted bribes.
On February 26, 2011, the U.N. Security Council referred the situation in Libya since February 15, 2011 to the Court. That has resulted in TOP’s charges against three individuals, one of whom died (Muammar Gaddafi) resulting in the dismissal of his case.
The other two (Saif Al-Islam Gaddafi and Abdullah Al-Senussi) are in the custody of the Libyan Provisional Authority and have not been turned over to the Court despite negotiations to that effect.
In October 2012, Libya asked the ICC to abandon its claims against the two men because it said Libya can give them fair trials in Tripoli. In early 2013, Libyan officials told the ICC that the two men would be put on trial in Libya in May this year and would not face summary trial and execution.
In the latest (November 2012) semi-annual report to the U.N. Security Council on this situation and cases, the Chief Prosecutor said both Saif Al-Islam Qadhafi and Abdullah Al-Senussi had been arrested and detained in Libya, and that the Libyan authorities had challenged the admissibility of the ICC’s case against Mr. Qadhafi and possibly of the case against Mr. Al-Senussi. She said the ICC’s Pre-Trail Chamber would decide the merits of the challenge as to whether the case should be heard at the Court or in Libya, and should the challenge ultimately succeed, TOP would monitor those proceedings and cooperate with Libya, to the extent of the mandate.Emphasizing the pressing need for complementary and mutually supportive approaches to address accountability, she encouraged international support and assistance to enhance Libya’s capacity to deal with past crimes and to promote the rule of law.
A Libyan representative at the Council meeting said his Government had set out its plans for stability, reconciliation and comprehensive justice for crimes that had been committed in his country and that its investigation was already at an advanced stage in some of those cases although the Qadhafi trial had been postponed in order to allow for the most thorough possible investigation. Libya, he continued, has been cooperating with the ICC and was now awaiting the decision on the admissibility challenge in the Qadhafi case and a forthcoming similar challenge in the Al-Senussi case. He reiterated his country’s pledge to carry out all procedures in compliance with international law.
A U.S. diplomat at the Security Council urged the Libyan Government to continue its cooperation with the Court. It was an important moment for both Libya and the Court as they worked together, under their respective roles, in ensuring peace and accountability. It was critical for Libya to ensure the safety of ICC personnel on visits to the country. She added that the U.S. had endeavored to cooperate with the ICC in its efforts regarding Libya, consistent with U.S. law and policy. Impunity for all serious crimes in Libya, including gender crimes, must be avoided, and victims should be assisted. The U.S. would continue to work with the international community to assist Libyan efforts to reform its justice sector and advance human rights in the country.
On October 3, 2001, the Court’s Pre-Trial Chamber granted TOP request to commence an investigation into the situation in the Ivory Coast since November 28, 2010, and in February 2012 the Chamber expanded the investigation to cover the period September 19. 2002 through November 28, 2010.
Laurent Gbagbo, the former president of the country, has been charged with four counts of crimes against humanity. He was surrendered to the Court in November 2011, and his confirmation of charges hearing was held in February 2013.
Simone Gbagbo, the wife of Laurent Gbagbo, has been charged as an indirect co-perpetrator with four counts of crimes against humanity. She has not been turned over to the Court.
On July 13, 2012, the government of Mali referred the situation in that country since January 2012 to the ICC, which has assigned it to the Pre-Trial Chamber.
In January 2012 a rebellion began in Northern Mali, led by the National Movement for the Liberation of Azawad (MNLA). In March 2012, military officer Amadou Sanogo seized power in the country in a coup d’etat, citing the president’s failure to eliminate the rebellion. The MNLA quickly took control of the north, declaring independence as Azawad. However, Islamist groups that had helped the MNLA defeat the government, turned on the rebel group and took control of the North with the goal of implementing Sharia Law in Mali.
On January 11, 2013, the French Armed Forces intervened at the request of Sanogo’s government. On January 30th, the coordinated advance of the French and Malian troops claimed to have retaken the last remaining Islamist stronghold.
In the midst of these military engagements, on January 16, 2013, TOP announced that it formally had opened an investigation into the Situation in Mali since January of 2012. After thorough analysis it said it had found that evidence, admissibility, gravity of potential cases, and interest of justice all support the requirements to open a formal investigation into war crimes allegedly committed in Mali. Crimes alleged to have happened include murder; mutilation, cruel treatment and torture; intentionally directing attacks against protected objects; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court; pillaging; and rape. The ICC will move to investigate these alleged crimes and bring charges against individuals “who bear the greatest criminal responsibility for the most serious crimes committed.
In late January 2013, TOP warned Malian authorities to put an immediate stop to the alleged abuses and, on the basis of the principle of complementarity, to investigate and prosecute those responsible for the alleged crimes. TOP reminded all parties to the on-going conflict in Mali that it has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. All those alleged to be responsible for serious crimes in Mali must be held accountable.
The following summarizes the status of those charged with crimes by the Court as it nears its 11th anniversary on July 1, 2013:
At large or not in Court custody
Pre-Trial: charges not confirmed
Trials scheduled to start by 12/31/14
Tried and convicted
Tried and status in question
Tried and acquitted
 There have been many prior posts about the ICC.
Regulation 55, which is titled “Authority of the Chamber to modify the legal characterization of facts,” says in part (2),”If, at any time during the trial, it appears to the Chamber that the legalcharacterisation of facts may be subject to change, the Chamber shall give noticeto the participants of such a possibility and having heard the evidence, shall, atan appropriate stage of the proceedings, give the participants the opportunity tomake oral or written submissions. The Chamber may suspend the hearing toensure that the participants have adequate time and facilities for effectivepreparation or, if necessary, it may order a hearing to consider all mattersrelevant to the proposed change.” Part (3) goes on to say, “For the purposes of sub-regulation 2, the Chamber shall, in particular,ensure that the accused shall:(a) Have adequate time and facilities for the effective preparation of his or herdefence [sic] in accordance with article 67, paragraph 1 (b); and (b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1 (e).”
 A prior post discussed the June 2012 ICC report to the Security Council on the Darfur/Sudan referral.
 The U.S. statement regarding Sudan/Darfur is available online.
 A prior post discussed the May 2012 ICC report to the Security Council on the Libyan referral.