The Trial Chamber (by a majority, Judge Eboe-Osuji dissenting) has asked the prosecution in both the Ruto/Sang and Kenyatta/Muthaura cases to clarify its characterisation of the facts in the Document Containing Charges. The question revolves around which are relevant facts that underpin the charges and which are just background facts. The Defence is concerned that facts that were rejected by the Pre-Trial Chamber should not be reintroduced as relevant facts for purposes of the trial.
The Arrest of Dennis Itumbe was not pursuant to a request by the Court or the Prosecutor. This is according to a decision of the court. It may be recalled that Mr. Itumbe was allegedly arrested in the context of accusations that individuals were involved in interfering with ICC witnesses. He complained to the ICC that he was illegally arrested by Kenya police and that this was done at the request of the Court/Prosecutor. As a result he demanded compensation for the arrest. This finding that the Court/Prosecutor was not involved in this arrest highlights the perils of state cooperation with the court. Unless it can be shown that the Court/Prosecutor was engaged in concerted cooperation with the National Authorities such that the conduct can be ‘attributed’ to the court, it will be difficult to take action for violations of law/human rights by state agents who believe that in their actions, they are assisting the court.