Pre-Trial Chamber II of the International Criminal Court composed of Judges Hans-Peter Kaul, Cuno Tarfusser and Ekaterina Trendafilova (presiding), presented an oral summary of the decisions on confirmation charges pursuant to Article 61(7)(a) and (b) of the Rome Statute in the Kenya situation. The decisions issued concern the charges of the Prosecutor against William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang in Case 1 and Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali in Case 2. In Case 1 the Chamber found that Mr. Ruto and Mr. Sang are responsible for the charges levied against them. The Chamber declined to confirm the charges against Mr. Kosgey. In Case 2 the Chamber was satisfied that the evidence established substantial grounds to believe that Mr. Muthaura and Mr. Kenyatta are criminally responsible for the alleged crimes, as indirect co-perpetrators, pursuant to article 25(3)(a) of the Rome Statute. The Chamber declined to confirm the charges against Mr. Ali.
Judge Kaul appended a dissenting opinion in both cases. In his view the ICC is not competent because the crimes committed on the territory of the Republic of Kenya during the post-election violence of 2007-2008 were serious common crimes under Kenyan criminal law, but not crimes against humanity as codified in Article 7 of the Rome Statute.