Tag Archives: intermediaries

Recent Court Documents in the 2 ICC Kenya Cases 20 November 2013

The Prosecutor in the Ruto/Sang case asked to appeal the decision allowing the disclosure of Prosecution Intermediaries to the Defence. The Trial Chamber rejected her request for leave.

The same Trial Chamber permitted the Government of Kenya to file observations on the effect of the Parliamentary resolutions seeking Kenya’s withdrawal from the ICC Treaty.

The Kenyatta defence asked the Trial Chamber for a stay of proceedings prior to trial due to what they allege has been abuse of process by the Prosecutor. They also wanted a evidential hearing to discuss these alleged abuses. Kenyatta’s lawyers claimed that, among other things, OTP-11 and OTP-12 conspired to tamper with evidence collection and interfere with potential defence witnesses.

The Prosecutor in the Kenyatta case asked the Trial Chamber for protective measures for its first ten witnesses, including witnesses 2, 11, 217, 232, 429, 430, 493, and 505. These measures would include voice and face distortion; pseudonyms and some in camera sessions (where sessions are closed from the public). Some of the protective measures will safeguard the witnesses who have been relocated, others are to protect persons who are not before the court. In addition witnesses 11, 217, 429, 430, 493 and 505 would, according to the OTP, need protection because the nature of their evidence may be self-incriminatory.

The Kenyatta Trial Chamber decided to excuse Kenyatta from being continuously present throughout his trial, except during:

i.                     the entirety of the opening statements of all parties and participants;

ii.                   the entirety of the closing statements of all parties and participants;

iii.                  when victims present their views and concerns in person;

iv.                 the entirety of the delivery of judgement in the case;

v.                   the entirety of the sentencing hearings (if applicable);

vi.                 the entirety of the sentencing (if applicable);

vii.                the entirety of the victim impact hearings (if applicable);

viii.              the entirety of the reparation hearings (if applicable); and

ix.                 any other attendance directed by the Chamber.

Kenyatta promptly filed a waiver of his right to be present at his trial.

Judge Ozaki dissented from the main judgement which largely mirrored and elaborated on the Ruto Absence decision. She, however, felt that there was no discretion granted to the court to waive the presence of the accused except in truly exceptional and limited circumstances such as a personal tragedy- such as in the trial of Jean-Pierre Bemba Gombo- or a national tragedy such as the Westgate Attack. Furthermore, granting a waiver to Kenyatta would violate the obligation to treat all the accused equally.

Judge Eboe-Osuji also attached a separate opinion to the decision. In it, he clearly shows the influence that the protests from the African Union and the member states have had on the question of how to treat Kenyatta and Ruto (always, Sang sits forgotten). Judge Eboe-Osuji not only felt it was worth mentioning the complaints extensively, but also argued that it might be wrong as a matter of law to ignore the views of the state parties on this particular issue of the permission granted to Ruto and Kenyatta to be absent from much of their trials.

To some extent I have sympathy with Judge Eboe-Osuji’s views: as I mentioned previously, the ICC was arguably too defensive in its initial appraisal of the complaints by African states: this may have given the impression that the court was not listening to criticism. In addition, I sympathise with Judges of the two Kenya Trial Chambers who must somehow drag these trials to conclusion in the face of two accused- William Ruto and Uhuru Kenyatta- who clearly regard the ICC as a pointless foreign annoyance now that the long-coveted offices of President and Deputy President have been attained.

The Judges see the danger that Ruto and Kenyatta present: that faced with a situation where they cannot perform both their duties to the court and to Kenyans, the two of them will not do the honourable thing and resign from office. More likely, they will resign from being ICC accused, abscond and hunker down to take the consequences.

But I think the trial chambers over-reached in their reading of the statute in order to allow prolonged absence for the two on the basis that the  ‘extraordinary functions’ of their state offices created exceptional circumstances that warranted such prolonged absence. Furthermore, the functions of Deputy President (DP), as defined in our Constitution (Chapter 9 Part 2), are arguably not as ‘extraordinary’ as the Judges in the Ruto Decision were led to believe when excusing Ruto from continuous presence at his trial. The constitution makes quite clear that Kenyatta has a deputised assistant and not a co-president, irrespective of internal power-sharing arrangements within the ruling coalition.

Yet ultimately, though not thrilled about the prospect of defendants absconding and the even less thrilled by the prospect of yet more ICC arrest warrants that might be ignored- the last thing we need is a UHURUTO-WATCH website- I think that the two Trial Chambers must simply take up the hard task of crafting another way to ensure the accused who hold office comply with their national and international duties. Success is not guaranteed, but the same could be said about any endeavour to bring justice for victims of international crimes.

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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.

Changes to the Prosecutor’s Approach to Investigations

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:

  1. Ensuring cases are trial-ready earlier in the process rather than expecting, for example, that further evidence can be collected after confirmation of charges.
  2. Building from the bottom up i.e. starting by prosecuting lower level perpetrators and gradually building up to charging the persons bearing greatest responsibility.
  3. Less reliance on eye-witness testimony
  4. 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

Recent Court Documents in the 2 ICC Kenya Cases 09 February 2013

The Kenyatta/Muthaura defence teams have demanded that the Prosecutor produce a list of the lawyers who will be trying the case, and whether they belong to any national bar association and are in good standing with that bar. They also want a Prosecution code of ethics instituted by the Trial Chamber. The defence feels such a Code is important in order to regulate Prosecution investigations and dealings with witnesses, and encourage transparency in the trial proceedings. All Defence council appearing at the ICC must strictly adhere to the Code of Professional Conduct. This Code does not legally apply directly to the Prosecution.

The Prosecutor replied to the application by stating that neither a list of her lawyers nor information as to their ‘good standing’ before national bars would be helpful in ensuring ethical behaviour with respect to witnesses, since there is already a Witness Preparation protocol in place and avenues to monitor witness preparation as well as seek redress for violations of the protocol. She also questions whether a single trial chamber can institute a code of conduct for all  prosecuting lawyers in all cases before the ICC. The Prosecutor further points out that any misconduct by a prosecuting lawyer against the administration of justice in the case is adequately dealt with by sanctions under the Statute.

The VPRS filed its first periodic report on the Status of its activities, the Victims in the Kenya cases, and the activities of the Common Legal Representative. The VPRS states that it will be mapping victims, reviewing applications, training intermediaries and setting up a database of victims. During a November visit to Kenya, the VPRS officials travelled to Nakuru, Kakamega and Kisumu (this particular report is solely for the Kenyatta/Muthaura case). Some of the worries that victims expressed included whether only victims in this particular case can benefit from reparations, ensuring intermediaries are well trained, and ensuring the registration of genuine victims only.

In relation to the Sang/Ruto Case, the VPRS found similar issues; these particular victims met with the VPRS in Nakuru, Eldoret, Lugari, Turbo and Siaya. Victims were also concerned about tensions before the coming elections.

The Prosecutor in the Kenyatta/Muthaura case has applied to amend the Document Containing Charges (what we Kenyans call the Charge Sheet). I previously reported that the Trial Chamber ordered the Prosecutor to remove an allegation in the DCC that 6 people were shot dead in Naivasha. The prosecutor subsequently received evidence that shooting deaths did occur in the context of the attacks. She now wants to reinsert this allegation into the DCC without the need for additional hearings.

The Pre-Trial Chamber (single judge ruling) has asked for observations on the above request to amend. The rules require that the amendment request be addressed to the Pre-Trial Chamber rather than the Trial Chamber. One issue that concerns the Judge is whether, given that the OTP is supposed to have largely completed investigations by the Confirmations stage, it is appropriate for new evidence to be admitted and the DCC amended. The Chamber also wants clearer and fuller information and witness statements from the Prosecutor

Fergal Gaynor, the Common Legal Representative for Victims in the Kenyatta/Muthaura Case submitted his observations on the application to amend. Although not opposing the application, he argues that the victims he spoke to are worried about the delays in the case that may result from this amendment. 4 have already died, according to Gaynor, some from medical/psychological effects of the PEV. Therefore, the victims wish to see ‘justice in their lifetime’.

The Kenyatta/Muthaura defence teams also submitted their observations. They feel that there is no reason why the OTP could not collect this evidence prior to confirmation of charges- therefore Prosecutor is abusing the latitude to submit new evidence prior to trial. They also feel that the prolonged publicity of the case in Kenya has now tainted the witness pool, therefore the court should be careful admitting new witnesses. The defence teams close by complaining again about the failure of the OTP to diligently investigate and to clearly ‘solidify’ the case; instead adding new witnesses and new allegations. They worry that the time to trial is too short to investigate the new statements to be produced by the OTP.

Update 18 February 2013: The Prosecutor submitted her observations about the conduct of her investigations, in which she disagreed with the Pre-Trial chamber as to the scope of her obligations with respect to post-confirmation investigations. The Prosecutor believes that only questions for the Pre-Trial Chamber are the sufficiency of evidence to support the amendment and any undue prejudice it may cause the defence at this stage- not whether and to what her office continued investigations after the confirmation of charges.

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

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