Tag Archives: Appeals Chamber

Recent Court Documents in the 2 ICC Kenya Cases 19 November 2013

The Trial Chamber in the Ruto/Sang case granted protective measures that the Prosecutor requested for her witnesses. These include voice distortion, pseudonyms and face distortion. These measures are to be put in place directly the witnesses arrive at The Hague.

The Prosecutor in the Ruto/Sang case asked the Appeals Chamber for permission to ‘clarify’ her appeal against the decision of the pre-trial chamber denying her permission to change the temporal scope of the charges. The Ruto and Sang defence teams asked the court to reject the request.

The Ruto and Sang defence teams had confidentially filed a request to have information on Prosecution intermediaries disclosed to William Ruto. Intermediaries are the people who facilitated the initial and subsequent contact between the OTP and potential ICC witnesses. Some are compensated for the expenses they run up while working for the ICC; others are granted protective measures. The Ruto defence said that it wanted information on the intermediaries in order to effectively challenge the credibility of Prosecution witnesses and prepare for cross-examination

The issue of intermediaries nearly derailed the Lubanga trial- the first successful ICC trial- when the Prosecutor declined to provide full information about intermediaries to the defence. The Lubanga defence had alleged that some OTP intermediaries coached young former child soldiers to give false testimony incriminating the accused. The Lubanga Trial Chamber felt that the Prosecutor had violated the integrity of proceedings and issued stays of proceedings. Although the trial subsequently proceeded, the bickering over intermediaries and disclosure brought relations between the Judges and the Prosecutor to a nadir (see this helpful summary of the Lubanga case).

The Ruto/Sang Trial Chamber has now ruled on the issue of intermediaries. It ordered the Prosecutor to disclose to the defence teams a list of intermediaries who contacted Prosecution witnesses. The full identities of the intermediaries will not immediately be released; they will be referred to by pseudonyms. This, in addition to the high level of protection already given to OTP witnesses again highlights the concerns in this case for the security of those involved.


Recent Court Documents in the 2 ICC Kenya Cases 29 October 2013

The first private sessions of the Ruto/Sang trial have been held with Witness 536. The court wants to preserve the principle of public trials so  it asked the calling party (the side calling the witness) to produce a redacted transcript of any closed hearing within 24 hours of receiving the confidential transcript. The other parties have a chance to respond to this redacted transcript within 2 days. Thereafter it will be sent to the registry and hopefully released to the public.

The same Trial Chamber also rejected the Ruto Defence request to appeal against the decision allowing the Prosecutor to add two witnesses to her case.

The Appeals Chamber (Judge Usacka partly dissenting) rejected Nigeria and Ethiopia’s request to give observations on the appeal against the decision on Ruto’s absence from court.

Pursuant to an order by the Appeals Chamber, the Prosecutor responded to the defence request to vary the decision on suspensive effect. The Prosecutor asked the Judges of Appeal not to change their decision on suspensive effect. She argued that as an accused answering summons, Ruto cannot expect life to ‘continue as normal’ even if he wants to be in Kenya to lend a hand on the matter of the Westgate massacre.

The VPRS gave its 5th report on the status of victims in the Ruto/Sang case.

The Ruto Defence asked the trial chamber not to allow the Prosecutor to re-characterise the mode of liability with which she charged Ruto. The prosecutor wants to charge Ruto with forms of secondary (accessory) liability.

Recent Court Documents in the 2 ICC Kenya Cases 8 October 2013

The Prosecutor in the Ruto/Sang case applied to the Court for certain in-court protective measures for some of her witnesses. The court granted part of the request: one witness would testify under a pseudonym, with voice and face distortion. Other witnesses will be monitored, with update information passed to the Court in case they require such protection. The other request by the Prosecutor for the use of closed sessions and redaction (censorship) of the public transcripts would be decided on a case-by-case basis as need arises, rather than generally for each witness.

The East African countries of Tanzania, Uganda, Rwanda, Burundi and Eritrea submitted notes verbal (unsigned diplomatic statements explaining the countries’ positions or requesting further action) as well as applications to be friends of the court (amici curiae). Eritrea is not a state member of the ICC. The Registry passed these documents on to the Appeals Chamber.  These five countries wanted to be friends of the court in the Prosecutor’s appeal against the Decision on William Ruto’s continuous presence at trial.

The Appeals Chamber sought the opinions of the Prosecutor and the Defence as to the applications by the states.

The Prosecutor felt the issue was narrow and legal in nature, therefore the observations of the state would not really assist the court in making a decision.

The Defence felt the Countries observations would be helpful to the court given that matters of state cooperation would surface in the course of the appeal.

The Appeals Chamber allowed Tanzania, Rwanda, Burundi, Uganda and Eritrea to file observations as friends of the court. Judge Usacka disagreed with the decision of the majority of the judges.

The Prosecutor’s Appeal Against Ruto’s Absence

The Prosecutor asked the Appeals Chamber to reverse the Trial Chamber’s decision to allow William Ruto to miss much of his trial’s proceedings. In the appeal , she vigorously disagreed with the Decision, arguing that the Trial Chamber ignored clear and binding law in the Rome Statute and substituting this with its own discretion to decide upon the presence or absence of an accused should.            

According to the Prosecutor, the words ‘the accused shall be present at during the trial’ were not ambiguous and should have been given their ordinary meaning. The only exception to this ‘presence’ rule was if the accused was disruptive during the trial and only for such a time as the disruptive behaviour continues. The Prosecutor noted that Ruto could have waived his right to be present at the confirmation stage, but once trial starts, he must be at the ICC Courtroom. Reading the Statute at a whole and sifting through its drafting history, the Prosecutor concluded that the intention of the drafters was that the Accused must be present at trial. The fact that presence at trial was both a right and a duty under the statute did not give the Trial Chamber discretion to waive the duty where the Statute was clear that the accused had to be present.


The Prosecutor also disagreed with the Trial Chamber’s claim that the duty to be present attached solely to the accused and not Trial Chamber, allowing the judges discretion over ensuring the accused’s presence. The presence of the accused, according to the OTP, was a prerequisite of trial, and thus bound all trial participants to ensure this presence, even if the accused bore the brunt of the duty.


Fundamentally, the Prosecutor was unhappy with what she saw as an attempt by a trial chamber to impose its policy preferences over the intentions of the State Parties who crafted and ratified the Rome Statute. This is more so because the Trial Chamber had used sources of law outside of the Rome Statute framework, when the answers, according to the Prosecutor, were clearly to be found in the drafting history, a contextual reading of Article 63 and the case law of the court.


Finally, the Prosecutor challenged the ‘exceptional circumstances’ test that the Trial Chamber used to justify excusing Ruto from attending much of his trial, arguing that this was not supported by the law. She agreed with the dissenting trial judge, Olga Carbuccia, that such a test violated the principle that all accused should receive equal treatment; under the test, Ruto’s functions as a Vice President got him a broad waiver not available to accused like Joshua Sang. She also argued that such a test would open the floodgates for litigants to try to justify their absence from trial on the basis of their ‘exceptional circumstances’ e.g. a minister who was the only one constitutionally able to perform the duties of her office.


Because the trial is due to begin shortly, the Prosecutor asked the Appeals Chamber to suspend the Trial Chamber’s decision until the appeal is decided. This will ensure that the trial does not run into problems if Ruto has been absent from proceedings, only to be told that his presence was a prerequisite for a fair trial. This could lead to the trial having to re-start with Ruto’s full presence. As such, the Prosecutor feels it would be better for Ruto to be continuously present in court until the Appellate judges decide whether or not his absence from long periods is lawful.

The Appeal Against the Decision to Allow William Ruto to be absent from Court Proceedings

The Prosecutor in the Ruto/Sang case sought to appeal the decision allowing William Ruto’s absence from parts of his trial. She applied to the Trial Chamber for leave to appeal because she felt that the Chamber made the following errors:

  1. The scope of the Defendant’s duty to be present at trial and whether a Trial Chamber has a discretion to excuse an accused from this duty to be present.
  2. By stating that the test for such an excusal was that “…In exceptional circumstances […] the
    Chamber may exercise its discretion under Article 64(6)(f) of the Statute to excuse
    an accused, on a case-by-case basis, from continuous presence at trial. […] The
    exceptional circumstances that would make such excusal reasonable would
    include situations in which an accused person has important functions of an
    extraordinary dimension to perform.”

Like the Judge Carbuccia in her dissent, the Prosecutor worried that this decision could create inequality between different accused: some (like Joshua Sang) without important functions that meet the test would always have to be present whereas the more powerful accused (like Kenyatta or Ruto) would almost always be able to negotiate their absence from court owing to the functions that they perform.

The Prosecutor felt that prompt reference of the issue to the Appeals Chamber would move the case forward expeditiously. She pointed out that a similar point must be decided by the Kenyatta Trial Chamber. She also raised the question of whether, after a lengthy trial, Ruto’s absence could be used as a grounds to appeal a possible conviction on the argument that his right and duty to be present was non-derogable and could not be waived either (i) by his choice or (ii) at the court’s discretion. Thus she wants the issue settled before trial so that time and expense are not applied to proceedings that could be nullified much later over the absence question.

The Defence replied to this application by arguing that the Prosecution’s grounds for appeal were speculative, implausible, remote and/or theoretical. The Defence felt that the Prosecutor simply disagreed with the majority decision but had failed to show any appeal-able issue. According to the Defence, the Prosecutor had not shown how deciding the appeal would assist in the expeditious and fair conduct of proceedings. Further, the Prosecutor had misunderstood the test laid out by the court for ‘exceptional circumstances’. According to the Defence, the test had little or nothing to do with the executive functions of the the accused.

The Defence argued that the issue of a possible appeal against conviction does not arise because William Ruto waived his right to appeal on an issue that turned on his voluntary absence from proceedings. Finally, the Defence suggested that the Prosecutor’s argument that this issue could affect other cases before the ICC was a policy argument that could not validly be advanced to support an appeal on an issue specific to this case.

The Majority of the Trial Chamber (Judge Eboe-Osuji dissenting) agreed with the prosecutor that there were appeal-able issues in the application. The judges also agreed that the issues would significantly affect the fair and expeditious conduct of the trial or its outcome; if Ruto were convicted and appealed, the risk existed that parts or all of the trial being nullified because of his absence at certain stages. This would lead to significant delay. Furthermore, conducting the trial with this issue hanging over it would lead to greater uncertainty if there is evidence that was heard while Ruto was absent from court. Therefore, fairness required the Appeals Chamber to review the decision now, before trial gets underway.

Judge Eboe-Osuji dissented because he did not feel the issues raised significantly affected the conduct or outcome of trial in the way the prosecutor was arguing. He appeared to agree with the Defence that the arguments put forth for leave to appeal were largely hypothetical and based on many ‘ifs’, ‘mays’, and ‘possiblys’ which required speculation about what might happen in the event Ruto got convicted. He also felt that the Prosecutor was wrong when she complained that the principle of equality before the law was violated by the test requiring the accused to show ‘exceptional circumstances’ for his absence. The judge felt that the law

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

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