ABSTRACT
The chapter by Clare Lawson and Rogier Bartels is the first scholarly examination of the evidentiary aspects of the use of language and specific speech acts found in the case against William Samoei Ruto and Joshua Arap Sang tried by the ICC. The authors, who both share inside knowledge of the evidence and deliberative reasoning applied by the ICC judges in this case, address the charging decisions, the language used by the Accused and how the evidence, or its lack thereof and its specific deficiencies, impacted the trial outcome as a whole. As legal practitioners and scholars, Lawson and Bartels address the charges against Joshua Arap Sang, a radio presenter who was alleged to have contributed to the commission of crimes against humanity through his radio broadcasts, as well as some aspects of the utilization of language attributed by the prosecution to Samoei Ruto during the political rallies held prior to the Kenyan postelection violence in 2007–08. The most important lesson from this trial, as emphasized by Lawson and Bartels, is, perhaps, that the “prosecution’s almost exclusive reliance on witness evidence,” and particularly “where the alleged speech is ambiguous, metaphorical or coded,” made the evidence insufficiently supported and consistent for the judges to determine the level of culpability alleged by the prosecution in this case. Thus, standing in stark contrast to the jurisprudence from the IMT, ICTR and ICTY, the Ruto and Sang trial showed that a lack of supporting documentary, archival and expert evidence may fundamentally and conclusively affect the reliability and impact of fact witness testimonies in all the so-called ‘propaganda trials.’
