DEPUTY President William Ruto will have to go the extra-mile to terminate his ICC case early, unlike his co-accused Joshua Sang.
This will be the case if Ruto decides to take advantage of Tuesday’s judges’ decision allowing the accused to apply to terminate their cases once the prosecution finishes presenting evidence against them.
In their decision, the judges said those who intend to apply for early termination of their cases must do so on a charge- by-charge basis, factoring in all modes of criminal responsibility they are charged with.
Although Ruto, like Sang, is charged under one mode of liability, there is a pending notice to re-frame the mode of liability to include three other modes. The judges have said Ruto’s no-case-to-answer motion would be unique. Ruto’s extended modes of liability increase the chances of securing a conviction against him.
“In the present case, Pre-Trial Chamber II confirmed only one mode of liability for each. However, with respect to Mr Ruto, it is recalled that notice pursuant to Regulation 55(2) of the Regulations was issued on 12 December 2013,” the judges observed on Tuesday.
They said the notice by Prosecutor Fatou Bensouda said Ruto’s alleged individual criminal responsibility may change over time. Ruto’s mode of criminal responsibility as confirmed by the pre-trial judges is “indirect co-perpetrator pursuant to Article 25(3)(a) of the Rome Statute.”
This Article says a person shall be held criminally responsible for punishment for a crime within jurisdiction of the ICC if they committed the crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.
But Bensouda says this liability mode may stretch to include Article 25(3)(b), (c) or (d). The latter three modes say a person would be held criminally responsible if they order, solicit or induce others to commit an ICC crime or if they facilitate commission of such a crime.
They would also be held criminally responsible if they “in any other way contributed to the commission or attempted commission of such a crime by a group of persons acting with a common purpose”.
The judges said Ruto would have to disprove not only the liability he is charged with, but also the three others anticipated in the notice. Conversely, Bensouda only needs to prove she has evidence of just one mode for the case to proceed to its logical conclusion.
“The chamber considers that, in the context of considering a no-case-to-answer motion, it would be sufficient, in respect of Mr Ruto, for it to be established that there is sufficient evidence of facts which could support a conviction under the mode of liability as pleaded, or any one of the modes as specified in the Regulation 55 Notice,” the judges observed.
