## Facts

- The International Criminal Court (ICC) investigated post-election violence in Kenya (2007–2008) involving killings and mass displacement.
- William Samoei Ruto and Joshua Arap Sang were charged with crimes against humanity, including murder, deportation or forcible transfer, and persecution, allegedly committed in Kenya’s Rift Valley.
- The charges were confirmed for trial, and proceedings began with the prosecution presenting testimonial and documentary evidence, including “insider” witnesses intended to link the accused to planning and implementation of violence.
- During trial, multiple prosecution witnesses recanted, withdrew, or failed to appear, and the Chamber identified circumstances consistent with interference affecting witness participation and testimony.
- After the prosecution closed its case, both defense teams moved for judgments of acquittal (“no case to answer”), contending the evidence was insufficient to require a defense case.

## Issues

1. What standard governs a “no case to answer” motion at the close of the prosecution’s case in ICC proceedings.
2. Whether, taking the prosecution evidence “at its highest,” a reasonable trier of fact could convict either accused on any charged count.
3. How witness interference and alleged state non-cooperation bear on evaluating sufficiency and on the appropriate procedural remedy.
4. How the “organizational policy” requirement for crimes against humanity should be understood, including what qualifies as an “organization” and how “policy” may be proven.

## Decision

- By majority, the Trial Chamber terminated the trial at the close of the prosecution case.
- The Chamber vacated all charges against both accused and discharged them without prejudice to prosecution afresh if sufficient evidence later became available.
- The judges disagreed on characterization and remedy:
  - One judge would have entered acquittals for insufficiency of evidence.
  - One judge would have declared a mistrial due to the proceedings being compromised by interference and non-cooperation.
  - One judge dissented and would have required the defense to proceed, finding sufficient evidence to continue.
- The majority’s dispositive formulation avoided labeling the outcome strictly as an acquittal or mistrial while ending the case on the existing evidentiary record.

## Legal Principles

- On a “no case to answer” motion, the question is whether, on the prosecution evidence taken at its highest, a reasonable trier of fact could convict on one or more charges.
- The Chamber need not conduct a full credibility trial at the half-time stage, but may discount evidence that is plainly unreliable or so lacking in probative value that it cannot support conviction even if accepted.
- Where the prosecution case is too weak on essential elements after its evidence closes, requiring the accused to present a defense is inappropriate and inconsistent with fair-trial requirements.
- Crimes against humanity under the Rome Statute require an attack on civilians pursuant to or in furtherance of a state or organizational policy; non-state entities may qualify as “organizations” if they have sufficient structure and capacity, and “policy” may be inferred from repeated and coordinated acts rather than formal documentation.
- A discharge “without prejudice” allows the possibility of renewed prosecution if adequate evidence later becomes available, distinguishing the disposition from a final merits acquittal.

## Conclusion

The Trial Chamber ended the proceedings after concluding that the prosecution’s evidence—undermined by compromised witness testimony—could not support conviction on the charged crimes against humanity, vacating the charges and discharging the accused without prejudice while leaving contested questions about the proper remedy in cases affected by interference and non-cooperation.


Situation in the Republic of Kenya (Prosecutor v. Ruto & Sang), ICC-01/09-01/11 (Int’l Crim. Ct. Trial Chamber V(A) 2016)