ICC Prosecutor Fatou Bensouda wants the judges to include new elements to make it easier to prove the case against Deputy Prime Minister Uhuru Kenyatta and former Cabinet Secretary Francis Muthaura. In a technical move, Bensouda filed an application on Tuesday that the mode of criminal liability against the Uhuru and Muthaura should be stretched to accept three elements previously not included by the Pre Trial Chamber.
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The ICC Prosecutor wants the court to allow her to introduce many avenues by which the court can find them guilty of crimes against humanity. The prosecutor in the Special Court for Sierra Leone found former Liberian leader Charles Taylor guilty of aiding and abetting war crimes after similar adjustments. Bensouda has also asked the trial judges to reduce the elements of "indirect co-perpetration" agreed by the Pre Trial Chamber..
The net effect of the two moves, if agreed to by the judges, will be to increase the possibilities of jailing Uhuru and Muthaura. Ekaterina Trendafilova and her fellow Pre-Trial judges confirmed the charges against them in January under Article 25(3)(a) of the Rome Statute. This attaches a criminal responsibility to a person who commits a crime individually, jointly with another or through another.
Bensouda now wants the judges to stretch this liability to include Article 25(3)(b),(c) and (d). She says that Article 25(3)(a) is not the only way to demonstrate the criminal responsibility of Uhuru and Muthaura. "The prosecution acknowledges that the accuseds' criminal responsibility could equally be characterized as: ordering, soliciting or inducing under Article 25(3)(b); aiding, abetting or otherwise assisting under Article 25(3)(c); or contributing "in any other way" to a crime committed by a "group of persons acting with a common purpose" under Article 25(3)(d)," Bensouda argued.
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