By Agnieszka Cybulska and Gentian Zyberi
Change of venue
Having failed to argue the cases as inadmissible before the ICC, the defense team for Mr Kenyatta and (at that time) Mr Mathura filed with the Presidency an application on 3 December 2012 pursuant to articles 3(3) and 62 of the Rome Statute, and rule 100 of the Rules of Procedure and Evidence (hereby Rules), for a change of venue for the anticipated trials in this case to either Kenya or Tanzania. On 21 December, the Presidency issued its 'Decision on Change of Venue', where it ordered the Chamber to seek the views of the parties on the application before deciding whether to recommend the Presidency to consult the relevant national authorities.[1] The Defense for Mr Ruto and Mr. Sang followed suit with their own application emphasising that it would be impractical to have two inextricably linked trials heard in different places[2].
The right to a defendant standing trial before a criminal court to private and family life, and in this case more importantly to public and political life, is well entrenched in international human rights treaties and conventions. A change of venue is here desirable from a defense perspective, in that conducting trial in either Kenya or Tanzania would cause minimum disruption to the private and public life of the defendants.[3] This is especially the case when considering the fact that the trials run the risk of lasting several years. It was also emphasized that being closer to the location of the alleged meetings and incidents would greatly benefit the investigations. The Court could get a better understanding of the geographical and social context surrounding the case. Further, the defense argued that a change of venue would be in the best interest of the witnesses, saving them the time and energy of traveling long distances and being away from home for longer periods.[4]
The Judges of the ICC, while in principle in favor of bringing the ICC's proceedings closer to the affected communities, reached the conclusion after holding a plenary session, that the trials shall be held in the Hague. In their consideration, they took into account factors such as the security concerns for the witnesses and victims, costs of holding the proceedings outside the ICC headquarters, the length of the proceedings and the potential impact both on the perception of the International Court, and also the Court's ability to conduct and support other proceedings that are taking place simultaneously in Hague. The Kenyan government was thus again denied their request for what in their view constitutes an adaption to the difficult situation, spurring more confusion and impatience towards the Court. The ICC, on the other hand, is facing a difficult task: it must manage the conduct of the trials so that the leaders can perform their official functions at home, while also meet the requirements of justice.
Request for absence from trial
On June 18, Trial Chamber V(a) had conditionally granted, by majority, William Samoei Ruto's request to be excused from being physically present continuously throughout the trial, with an exception of a certain number of sessions. A Trial Chamber enjoys discretion under Article 63(1) as to its interpretation, which states that "[t]he accused shall be present during the trial".[5] However, such discretion is limited, and should be exercised with caution. In this respect, the Prosecutor filed an appeal against the decision on July 29th. On October 25th, the Appeals Chamber seized the question of interpretation of article 63(1) of the Court's Statute. The Appeals Chamber concluded that the Trial Chamber had interpreted the scope of its discretion too broadly, and that an eventual absence must only take place in exceptional circumstances.[6] In the summary of the ruling, Judge Sang-Hyun Song stated that any decision to excuse Ruto from parts of his trial must consequently be considered on a case-by-case basis, and not become the general rule.
On the 18th of October, the Trial Chamber V(b) issued its decision to conditionally grant the request to also excuse Mr. Kenyatta from presence at his trial starting on 12 November 2013, which would allow him to attend his presidential duties on an almost full-time basis. Prosecutors have not yet appealed against the ruling. However, given the fact that the application of identical laws arise in respect of both cases, it would be surprising if the Prosecutor didn't seek to appeal this decision as well.[7] This remains to be seen, but the tension between the Kenyan government, the ICC and the African Union is steadily rising with what they consider to be a disregard of their voices and cooperative attempts to find solutions that would best accommodate this process.
African Union (AU) and the ICC
In May 2013, the Kenyan government successfully lobbied AU members to adopt a resolution calling for the cases to be referred to Kenya for national proceedings to be taken, rather than being left to the ICC. In their resolution, the Assembly of the Union stressed the need for international justice to be conducted in a transparent and fair manner, and expresses concern at the threat that the indictment of Mr. Kenyatta and Mr. Ruto may pose to efforts aimed at promoting stability, peace and security not only in Kenya, but in the whole region.[8] They further recall that pursuant to the complementarity principle enshrined in the Rome Statute, Kenya has the primary jurisdiction over the investigations and prosecutions of crimes in relation to the 2007 post-conflict violence.[9] The resolution consequently requests a referral of the cases back to the Kenyan government. The document ends by asking the AU Commission to organise a brainstorming session as part of the 50th anniversary discussion on the broad areas of International Criminal Justice System, Peace, Justice and Reconciliation as well as the impact/action of the ICC in Africa.[10]
This decision was conveyed in a letter no. BC/U/1096.07.13 sent to the President of the ICC, Judge Sang-Hyun Song, with a copy to the UN Secretary General on July 8th, 2013. In the meantime the trial of Kenya's Vice-President William Ruto was commenced in September. This was followed up with another correspondence from the AU dated 10 September, based on the concern that the proceedings in Hague are beginning to adversely affect the ability of the Kenyan leaders in discharging their constitutional responsibilities as President and Vice-President. The letter points to the recent decision of the Court, where Trial Chamber V(a) allowed the Prosecutor's appeal regarding the attendance of Mr. Ruto in all Court Sessions. Since the Constitutional obligations of the Head of State of Kenya and his Deputy do not allow them to be out of the country at the same time, this means that during the absence of Mr. Ruto at the trial, President Kenyatta will be prevented from meeting his international obligations.[11] It was also emphasized that the President and his Deputy have championed measures put in place towards restoration of peace and national reconciliation in the aftermath of the 2007 violence, and that their absence during important national days, such as the upcoming 50-year celebration of Independence, might undermine the process of threaten Kenya's peace and stability. The African Union is therefore asking the Presidency of the ICC to allow for the Head of State of Kenya and his Deputy to choose the sessions they wish to attend in accordance with their Constitutional obligations and duties they are required to fulfill.[12]
The Kenyan government has, together with the African Union, put pressure on the ICC and the UN to comply with their demands. The decisions that will be taken will have a significant effect on not only the ICC and its effectiveness, but also on the overall international justice regime.
[1] Application for Change of Venue ICC-01/09-01/11-567, p. 6/12
[2] Application for Change of Venue ICC-01/09-01/11-567, p. 8/12
[3] Application for Change of Venue ICC-01/09-01/11-567, p. 8/12
[4] Application for Change of Venue ICC-01/09-01/11-567, p. 10-11/12
[5]Rome Statute, Article 63(1), 16 January 2002
[6] Ruto and Sang case: ICC-CPI-20131025-PR956, available at: http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr956.aspx
[7] Escritt, T. and James Macharia, Kenyan Deputy President must attend his trial: ICC Judges, October 25, 2013, Reuters
[8] Assembly of the African Union, Decisions, Declarations and Resolution, Assembly/AU/Dec.482(XXI)
[9] Assembly of the African Union, Decisions, Declarations and Resolution, Assembly/AU/Dec.482(XXI)
[10] Assembly of the African Union, Decisions, Declarations and Resolution, Assembly/AU/Dec.482(XXI)
[11] African Union Letter to the President of the ICC, BC/U/1657.09.13, 12 September 2013
[12] African Union Letter to the President of the ICC, BC/U/1657.09.13, 12 September 2013
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