Ruto/Sang Trial Suspended Because of Kenya Mall Attack

Trial Chamber V(a) of the International Criminal Court (ICC) today suspended the trial of William Ruto, and Joshua Arap Sang and excused Mr. Ruto from The Hague for a week.  Ruto is the Deputy President of Kenya, and in light of the recent attack in Nairobi, the court agreed with the defense request to allow him to leave and tend to official duties in Kenya.

The Office of the Prosecutor and the representatives of victims present in the court did not object to excusing Ruto from the trial, but argued against suspending the trial, the court reached this conclusion:

On 23 September 2013, Trial Chamber V(a) excused Mr Ruto from trial proceedings for one week in light of the circumstances in Kenya and subsequently decided to adjourn the trial.

The Chamber noted that the Defence for Mr Ruto has indicated an intention to file a request to the Appeals Chamber on 23 September 2013 for reconsideration of its decision on suspensive effect regarding the Prosecutor’s appeal of the decision excusing Mr Ruto from continuous presence at trial.

The trial is adjourned pending either the Appeals Chamber’s decision on the Defence’s urgent request or the expiration of the one-week excusal period, whichever comes earlier.

On 18 June 2013, Trial Chamber V(a) had issued a decision excusing Mr Ruto from being continuously physically present at trial, except for specified hearings. However the Prosecutor appealed this decision and the Appeals Chamber gave the Prosecutor’s request suspensive effect until a final decision on this appeal is made. This meant that Mr Ruto was requested to be present during all trial hearings pending the final determination on the Prosecutor’s appeal.

Ruto and Sang are charged with Crimes against Humanity including murder, deportation or forcible transfer of population and persecution in connection with post-election violence in Kenya in 2007-2008.  Sang is a broadcaster, Ruto was elected Deputy President in March.  Kenya’s President, Uhuru Kenyatta is also set for trial in connection with the post-election violence later this year.  Both trials have faced issues with witnesses withdrawing and refusing to testify at trial.

ICC Judge Issues Warning About Identifying Witnesses

Judge Chile Eboe-Osuji during the Ruto/Sang trial this week issued a warning, described by the court as a “special reminder,” that identifying or harassing witnesses is a violation of International Criminal Court rules and may constitute Contempt of Court. Joshua Sang is a prominent broadcaster and William Ruto a politician who is current Kenya’s Deputy President.  According to a press release by the court:

Speaking at the beginning of this afternoon’s hearing, Presiding Judge Chile Eboe-Osuji stated that “it is an offence against the administration of justice in this Court, pursuant to Article 70 of the Rome Statute, for anyone to do anything intentionally that would amount to corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, or retaliating against a witness for giving testimony in a case before the Court”. Article 70 provides that, for such conduct, the Court may impose a term of imprisonment not exceeding five years or a fine.

Judge Eboe-Osuji added that such conduct “may also amount to contempt of Court” and stressed that “any revelation of the identity of a witness whose identity has been protected by this Court amounts to an offence in [the ICC].  So too will any attempt to engage in any such revelation”. The Chamber called on everyone inside and outside the Courtroom, as well as members of the press, bloggers, social media members or participants and their websites or other online presence “to desist from doing anything that would reveal or attempt to reveal the identity of protected witnesses or to engage in secondary dissemination of such wrongful and illegal information”. The Presiding Judge concluded the special reminder by stating that “such conduct will be investigated and the culprits will be prosecuted.”

Ruto and Sang are charged with Crimes Against Humanity, including murder, connected to post-election violence in Kenya in 2007-2008.  Ruto was elected Deputy President of Kenya earlier this year. President Uhuru Kenyatta was also indicted and is scheduled to begin later this year.

As blogged earlier:

The  six, dubbed the “Ocampo Six” by the Kenyan media, included Ruto, Sang and Uhuru Kenyatta, who was elected president of Kenya in March. The name “Ocampo Six” was a reference to then ICC prosecutor, Luis Moreno-Ocampo. At the confirmation of charges hearing, a sort of probable cause hearing, two of the “Ocampo Six” were dismissed from the case as the court found there was not sufficient evidence to hold them for trial. A third defendant, the co-defendant of Kenyatta, Francis Kirimi Muathara had the charges against him withdrawn by the prosecutor, leaving Kenyatta as the sole defendant in his case, and Ruto and Sang.  Several witnesses have said they will not testify against Kenyatta, the ICC does not have the power to compel witnesses to testify.

Several witnesses have also declined to testify against Ruto, according to this court, four witnesses withdrew last week:


The Prosecutor’s Opening statement describing the case is below.

Part of Ruto’s Opening is available here:

Ruto and Sang Trial Begins at the ICC

The trial of Kenya Deputy President William Ruto and Broadcaster Joshua Sang began at the International Criminal Court, (ICC) in The Hague, Netherlands this week.  Ruto and Sang were indicted for their alleged direction of post-election violence in Kenya in 2007-2008.  The case has a complex history.

In 2009, former United Nations Secretary General Kofi Annan provided a list of suspects provided to him in a sealed envelope:

The list of about a dozen people includes at least two senior cabinet ministers and will increase the pressure on Kenya’s coalition government to establish a special local tribunal. Annan, who brokered an end to the crisis last year, had pledged to hand over the names if the government failed to hold accountable those most responsible for orchestrating the violence.

From that list, the Office of the Prosecutor (OTP) at the ICC began its investigation into the post-election violence.  The OTP reported at the time that officials had been involved in the post-election violence, and delivered a list of 20 names to the chamber overseeing the investigation.

Eventually the court released the names of six Kenyan officials who had been indicted by the court. The  six, dubbed the “Ocampo Six” by the Kenyan media, included Ruto, Sang and Uhuru Kenyatta, who was elected president of Kenya in March. The name “Ocampo Six” was a reference to then ICC prosecutor, Luis Moreno-Ocampo. At the confirmation of charges hearing, a sort of probable cause hearing, two of the “Ocampo Six” were dismissed from the case as the court found there was not sufficient evidence to hold them for trial. A third defendant, the co-defendant of Kenyatta, Francis Kirimi Muathara had the charges against him withdrawn by the prosecutor, leaving Kenyatta as the sole defendant in his case, and Ruto and Sang.  Several witnesses have said they will not testify against Kenyatta, the ICC does not have the power to compel witnesses to testify.

Kenya’s government, before the election of Kenyatta and Ruto to their current positions, argued unsuccessfully to dismiss the indictments. Kenya’s parliament recently voted to withdraw from the court.

At the confirmation of charges hearing, Judge Hans Peter Kaul issued a dissent where he argued the cases were not admissible:

I am unable to accept this decision of the Majority and the analysis that
underpins it. I continue to believe that the International Criminal Court (the
“ICC” or the “Court”) lacks jurisdiction ratione materiae in the situation in the
Republic of Kenya, including in the present case. Contrary to the Majority’s
findings, I am not satisfied that the crimes, for which Mr Ruto and Mr Sang are
held accountable pursuant to articles 25(3)(a) and 25(3)(d) of the Rome Statute
(the “Statute”) respectively, occurred pursuant to or in furtherance of a policy of
an organization within the meaning of article 7(2)(a) of the Statute. Thus, I am not
satisfied that the crimes charged constitute crimes against humanity as set out in
article 7 of the Statute.

That said, and while I do not question that abhorrent crimes, as described in
the amended document containing the charges, have been committed, my doubts
pertain to their correct qualification. Consequently, my principled disagreement
with the Majority centres on the question of whether the ICC is the right forum
before which to investigate and prosecute those crimes.

Judge Kaul, and the other pre-trial judges are not presiding at the trial.  The court’s press release announced the opening of the trial:

Mr Ruto and Mr Sang are accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in Kenya in the context of the 2007-2008 post-election violence. The trial is held before Trial Chamber V(a) composed of Judge Chile Eboe-Osuji (presiding), Judge Olga Herrera Carbuccia and Judge Robert Fremr.

OTP Announces Appeal of Gbagbo Case

IC Gbagbo Motta eng 195The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in The Hague, Netherlands, issued a press release today stating the prosecutor’s intention to appeal the Pre-Trial Chamber’s decision to adjourn the Confirmation of Charges Hearing in the case against Laurent Gbagbo and ask the OTP to provide more evidence to support the case.

Laurent Gbagbo is the former President of the Ivory Coast and is the first former head of state to face charges at the ICC.  His wife, Simone Gbagbo, remains in custody in Ivory Coast and has also been indicted by the ICC.

On 23 November 2011, Pre-Trial Chamber III issued a warrant of arrest for Laurent Gbagbo (“Mr Gbagbo”), having found reasonable grounds to believe that he was criminally responsible as an “indirect co-perpetrator” pursuant to article 25(3)(a) of the Statute for the crimes against humanity of murder, rape and other forms of sexual violence, other inhumane acts and persecution, committed in Côte d’Ivoire during the period between 16 December 2010 and 12 April 2011.  P.2 Decision to Adjourn.  Footnotes omitted. 

Two of the three judges in the pre-trial chamber noted these difficulties with the case:

During the Hearing, the Prosecutor made clear that besides the four charged incidents,  she is relying upon further 41 incidents to establish her allegation for the existence of an “attack directed against any civilian population” under article 7 of the Statute. Of these 45 incidents, the majority of them are proven solely with anonymous hearsay from NGO Reports, United Nations reports and press articles. As explained above, the Chamber is unable to attribute much probative value to these materials. Moreover, many of these incidents are described in very summary fashion, making it difficult for the Chamber to determine whether the perpetrators acted pursuant to or in furtherance of a policy to attack a civilian population as required by article 7(2)(a) of the Statute. The Chamber is also presented with an incomplete picture as to: (i) the structural connections between the so-called “pro-Gbagbo forces” acting across the incidents; and (ii) the presence and activities of the
armed forces opposing them. Ultimately, the Chamber is asked by the Prosecutor to draw numerous inferences from actions or conduct of Mr Gbagbo, his inner circle and the “pro-Gbagbo forces”, but the Chamber does not have enough information to determine whether these inferences are sufficiently supported by the evidence in order to meet the required threshold for confirmation.        Order Paragraph 36, Footnotes Omitted

Judges Kaul and Van den Wingert went on to explain the reason for adjourning rather than declining to confirm the charges:

Despite these difficulties in the evidentiary record of the Prosecutor, the
Chamber considers that this does not automatically have to lead to the immediate refusal to confirm the charges. Although the Chamber is not prepared to accept allegations proven solely through anonymous hearsay in documentary evidence, the Chamber notes that past jurisprudence, which predates the above-mentioned decisions of the Appeals Chamber, may have appeared more forgiving in this regard. Therefore, the Prosecutor in this case may not have deemed it necessary to present all her evidence or largely complete her investigation, following all relevant
incriminating and exonerating lines of investigation in order to establish the truth. The Chamber does not exclude that the Prosecutor might be able to present or collect further evidence and is therefore, out of fairness, prepared to give her a limited amount of additional time to do so. As the Appeals Chamber noted when discussing summary evidence, when the evidence is insufficient the “Pre-Trial Chamber need not reject the charges but may adjourn the hearing and request the Prosecutor to provide further evidence.   Order P. 37, Footnotes omitted.

Also this week, the pre-trial chamber denied the Defense’s challenge to admissibility, the argument that the court cannot hear the case because it should be tried in Ivory Coast rather than in the ICC.  The doctrine of Complementarity prevents the ICC from hearing cases that are or have been prosecuted by national authorities.  Gbagbo has been indicted for economic crimes in the Ivory Coast, but the court found that did not prohibit him from being charged with Crimes Against Humanity in the ICC.

The appeals chamber could overrule the pre-trial chamber and set the matter on for trial, or find that there was not sufficient evidence to confirm, and dismiss the case, or follow the pre-trial chamber’s lead and ask for more evidence or detail before setting the case on for trial.  The judges do seem to be showing little deference to the decision making or evidence interpretation of the OTP.

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