According to the website PhD studies in human rights, Prosecutor Fatou Bensouda is responding to the criticisms made against her predecessor Luis Moreno Ocampo and changing the way her office investigates international crimes under the ICC statute.
A fuller description of the new approach will probably appear soon on the ICC website, but some of the changes mentioned include:
- Ensuring cases are trial-ready earlier in the process rather than expecting, for example, that further evidence can be collected after confirmation of charges.
- Building from the bottom up i.e. starting by prosecuting lower level perpetrators and gradually building up to charging the persons bearing greatest responsibility.
- Less reliance on eye-witness testimony
- Consideration of alternative charges at an early stage of proceedings rather than focussing on one or two specific offences from the very beginning.
The new approach is welcome, if it improves the capacity of her office to sustain a case to a safe conviction. At the same time, one hopes that there will also be a thorough review of how the Prosecutor’s office works with local intermediaries- this is another issue that has dogged the Prosecutor’s office (most recently with the Kenya cases and allegations of witness coaching). The system needs greater transparency as the office will probably continue to use local organisations at some point in the course of its investigations
In her opening statement, Fatou Bensouda, warned people allegedly bribing and intimidating ICC witnesses that her office was investigating.
Almost a week later, a local daily ran a story in which they detailed how a group was tracking down ICC witnesses, luring them out of hiding and offering them money to ‘forget’ their testimony. One passage, in particular, caught my eye:
“Another [alleged prosecution witness] claimed he quit the ICC train after he was told that his elderly mother was ailing and might die in his absence…[t]he man from Uasin Gishu County returned to Kenya late last month.“
It had echoes of the fate of a previous case involving Bernard Kiriinya, a police officer who was a witness to Police extra-judicial executions. Bernard thought he was safe hiding out with local Human Rights groups and telling them his chilling story. Unfortunately, in the Kenya Police, like in the Brazilian Police, ‘The System’ of police executioners takes care of its traitors.
Reports of what happened to Bernard Kiriinya conflict: some sources said Kiriinya came out of hiding to help his family move to safety, others claim he left his safe house after a visit from a friend while another allegation was that he was lured out by a phone call telling him that one of his children was either seriously ill or had been involved in an accident (like I said, the reports vary). What is unanimously agreed is that when Kiriinya came out of hiding, he got shot through the head.
Fortunately (if indeed bribery is good fortune), unlike in Kiriinya’s case, it seems the supposed witness hunters in the ICC Kenya cases are using the carrot rather than the stick to silence their prey.
The 2 Kenya cases will now be tried by two trial chambers according to a decision of the Presidency.
The Ruto, Sang case will heard by Judges Olga Herrera-Carbuccia (who is usually a Pre-Trial Judge), Robert Fremr and Chile Eboe-Osuji. It is designated Trial Chamber V(a).
The Kenyatta case will be heard by Judges Kuniko Ozaki, Robert Fremr and Chile Eboe-Osuji. It is designated Trial Chamber V(b). Judge Ozaki was also elected the presiding judge in this case
In removing her from the Ruto, Sang case, the decision states that Judge Ozaki’s workload (like that of Judge Wyngaert) had become excessive. But unlike Judge Wyngaert, the Presidency only removed Judge Ozaki from one case. Reading Judge Ozaki’s request to be excused, it’s interesting to see her cite, among other matters, ‘the unique demands’ and the ‘unprecedented filings’ by parties in the Kenya cases as part of the reason why the workload is now excessive- and the volume of filings is increasing as the trial dates draw nearer. It reminds me of what Fatou Bensouda said about the Kenya cases being the most challenging she’s had to prosecute. Maybe there’s something to be said for the claim that the ICC has not experienced a headache quite like these Kenyans!
Subsequent to the decision of the Kenyatta Trial Chamber to proceed with that trial, the Prosecutor conducted a review to check if there was anything that needed to be disclosed to the defence but was erroneously omitted from prior disclosure. The court had demanded that the Prosecutor review its evidence and its internal procedures to ensure the problems related to witness OTP-4’s affidavit were not repeated. The Prosecutor has identified several items of evidence as a result of this review and has stated that she will disclose these to the defence.
The Ruto/Sang Defence Teams have filed a joint request to the court to order the prosecution to indicate if it intends to continue relying on certain witnesses at trial. These witnesses’ statements were given in evidence during confirmation proceedings, but under pseudonyms and with redactions.
The Trial Chamber has granted Kituo cha Sheria amicus curiae status in both the Ruto/Sang and Kenyatta/Muthaura cases. The organisation will now submit observations based on the court’s Victims Decision which set out the procedure for victims’ participation at trial. Already the Office of Public Counsel for the Victims and the Registry had filed their proposals on this matter. In the course of the Kenya cases, various individuals and groups have attempted to enter proceedings as amici curiae . Most attempts failed. But in this decision, the Chamber felt that Kituo could give real assistance to the OPCV, Victims Participation and Reparations Section, Registry and Common Legal Representative as to the implementation of the Victims Decision. In particular, the Chamber noted Kituo’s various programmes on community participation at the Truth, Justice and Reconciliation Commission as well as its outreach to PEV Victims gave it specialised knowledge and experience on the implementation of a system of victims representation and participation.
The Prosecution has applied to delay disclosure to the Kenyatta/Muthaura defence teams of the identities of six provisional witnesses until 30 days prior to the trial. According to the application, four of the witnesses are Mungiki insiders who can testify to a link between the accused, Mungiki, and the crimes alleged. The prosecutor claims that there are security concerns, making a dry comment on “the limited pool of senior Mungiki members who are still alive and willing to testify” (Former Special Rapporteur Phillip Alston’s report on Extra-judicial killings and the videotaped testimony of Police Constable Bernard Kiriinya vividly describe why the ‘pool’ is so limited)
I couldn’t resist the Bob Marley word play.
The news is that Fatou Bensouda the Prosecutor of the ICC now has a deputy after five rounds– count ’em- five rounds of voting. Its hard to imagine how Kenyans would gripe if our elections were also pentathletic.
The new Deputy is James Stewart and, at least from this mini-biography, it seems he comes with a wealth of experience in international criminal law, particularly in East Africa with the International Criminal Tribunal for Rwanda. His appointment fits the current pattern of the Prosecutor and the Deputy Prosecutor being appointed from different regions. Last time it was South America (Ocampo) and Africa (Bensouda). This time it is Africa (Bensouda) and the North America (Stewart is Canadian).
Side-bar: I always get confused and call Fatou Bensouda the Chief Prosecutor. Actually she is the Prosecutor. The next senior official is the Deputy prosecutor. Every other prosecuting lawyer in her office is then an assistant prosecutor.
The Prosecutor’s press conference at the conclusion of her visit was as carefully worded as her opening one. But it belied some of the hot moments of her visit. These included an unexpected apology she graciously made on behalf of her predecessor for his failure to meet with IDPs and the rather puzzling decision of the CJ to decline her request for a closed-door meeting.
Her final statement to the media echoes the one she made at the start of her visit. Again and again she returns to the themes of witnesses and victims and working jointly with Kenyans against impunity. I’m not sure her final statement even mentions the word ‘accused’ once!
The Prosecutor also pressed home the 9 January deadline for the final hand-over of evidence. She wants the state to deliver the various items of evidence her office has requested by end of November. This is because the prosecution has to review the material thoroughly before providing it to the defence per the agreed deadlines.
Lets hope there’s no ploy within the government to try and dump evidence on the Prosecutor’s office on 8 January or worse, to simply allow the deadline to pass with no reply as happened in the wrangling over the referral of the situation.
While the statute requires that member states comply with requests from the court for cooperation, it also seems to impose derivative duty that where a state is unable to cooperate for whatever reason, it must give reasons for this. Furthermore, in relation to other forms of cooperation (Article 93), such as provision of official records and documents, if there is a fundamental legal principle ‘of general application’ that prohibits the state from cooperating, then it is obliged to consult the court ASAP to see how to resolve the situation.
Under Article 93, a state cannot deny a request for assistance unless the evidence or document disclosure relates national security.
Today the ICC Prosecutor, Fatou Bensouda, was in Nairobi. She’ll be here for the next week, meeting with a mixed bag of people and groups, from judicial officers to security personnel; from president to pauper; from IDPs to
Reading her statement to the media this afternoon, one can sense the caution with which the court treads in these cases. Constant themes include ‘respect’ and ‘listening’. But hidden beneath this soft tone of humility were some sharp rebukes The statement mentions efforts to interfere with witnesses and evidence. There’s a pointed reference here to delays in the government processing requests for information.
The implication for me is that for all the courtesy, this is not a meet and greet trip. Rather I see it as an effort to sustain pressure on the Kenya government whose attitude to the court can at best be summed up as neutral. There is genuine worry at the court about the level of cooperation to be expected from the state as the cases gather momentum. Of course the government is careful to say all the right things in public.
Another pointed reference: “The ICC judicial process will also take its own course irrespective of the political choices that the people of Kenya make.” In case you missed it, that was telling the accused to expect to be at the Hague in April, whether or not they are in the next government.
Her full statement to the media is available here.