recommendation to the presidency on where the court shall sit for trial

7/28/2019 Recommendation to the Presidency on Where the Court Shall Sit for Trial

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CourP n a l eI n t e r n a t i o n a l eI n t e r n a t i o n a lCr im ina lC o u r t

Original: English No.: ICC-01/09-01/11Date: 3 June 2013

TRIAL CHAMBER V(A)

Before: Judge Chile Eboe-Osuji, PresidingJudge Olga Herrera CarbucciaJudge Robert Fremr

SITUAT ION IN THE REPUBLIC OF KENYAIN THE CASE OF

THE PROSECUTO R v. WILLIAM SAMOEI RUT O an d JOSHUA A RAP SANG

PublicReco mm endation to the Presidency on whe re the Court shall sit for trial

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Decision to be notified, in accordance with R egulation 31 of the Reg ulations of the Cou rt, to:Th e Off ice of the Prosec utor Co uns el for W il l iam Sam oei Ru toMs Fatou Benso uda Mr Karim A. A. KhanMs Cynthia Tai Mr David Ho oper

Mr Kioko Kilukumi M usauMs Shyamala AlagendraCou nse l fo r Joshu a Arap San gMr Joseph Kipchumba Kigen-KatwaMr Silas Chekera

Legal Representa t ives of Vic t imsMr Wilfred Nderi tu

Lega l Represen ta t ives of A ppl i can t s

U n r e p r e se n t e d V i c t i m s Unrepresen ted Appl i can t s fo rPar t i c ipa t ion /Repara t ion

The Off ice of Publ ic Counsel forVic t imsMs Paol ina Massidda

The Off ice of Publ ic Counsel for theDefence

S ta te s R epresen ta t ives Amicus Curiae

REGISTRYRegis t ra rMr Herman von Hebe l

Deputy Regi s t ra r

Vic t ims and Wi tnesses Uni tMr Patrick Craig

De ten t ion Sec t ion

Vic t ims Pa r t i c ipa t ion and Repa ra t ions Othe rsSect ion

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Tria l Chamber V(A) ("Chamber"i ) of the Internat ional Criminal Court ("Court") , inthe case of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, having regard toArticles 3, 62, 64(2) and 68 of the Rome Statute ("Statute") and Rule 100 of the Rules ofProcedure and Evidence , i ssues this Recommendat ion to the Presidency on where theCourt shall sit for trial.

Ba c k g r o u n d a n d S u b m i s s i o n s1. O n 24 Jan uary 2013, the defence team s for Mr Ru to and Mr Sang ("Defence") filed

with the Presidency a "Joint Defence Application for a change of place where theCo urt sh all sit for Triar ',^ referring to a similar application h av ing b een fi led an dcon sid ered in the case of The Prosecutor v. Uhuru Mu igai Kenyatta and arg uin g th at itwould be "impractical to have the two trials heard in different places as far apart asThe Ha gu e an d East Africa".^ The Defence co nten ded that a change of ve nu e toeither Kenya or Tanzania is in the "respective interests of al l the part ies concernedand is desirable in the interests of just ice when all the necessary factors areconsidered."^

2. On 24 January 2013, the Presidency issued a decision request ing th e Cham ber toreceive observations on the change of venue from the part ies, part icipants, and theRegist ry , as wel l as any nat ional authori ty tha t the Ch amb er de em ed appropriate .^

3. On 1 February 2013, the Cham ber i ssued an O rder request ing ob servat ions inrelat ion to the "Joint Defence Application for change of place where the Court shall

* Where "Chamber" is used in this Recommendation, it refers to both Trial Chamber V in its composition as until21 May 2013 and to Trial Chamber V (A) as composed by the Presidency's "Decision constituting Trial Chamber V(a)and Trial Chamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto and Joshua ArapSang and The Prosecutor v. Uhuru Muigai Kenya tta'\ 21 May 2013, ICC-01/09-01/11-745.2 ICC-01/09-01/11-567.^ Ibid., para. 23."* 7/?/^., para . 25 .^ Decision on "Joint Defence Application for a change of place where the Court shall sit for Trial", 24 January 2013,ICC-01/09-01/11-568.N o. ICC-01/09-01/11 3/9 3 Ju n e 2013

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si t for trial" ("Order").^ The Or de r req ues ted obse rvations from the Office of theProsecutor ("Prosecution"), the Common Legal Representative for Victims, and theRegistry on the possibil i ty of the trial being held in Kenya or Tanzania, and invitedobservations from i) the Kenyan authorit ies on the possibil i ty of the trial being heldin Kenya, and i i) the Tanzanian authori t ies and the Internat ional Crim inal Tribunalfor Rwanda ("ICTR") on the possibil i ty of the trial being held at the premises of theICTR in Arush a, T anzania .

4. On 21 February 2013, the Prosecut ion subm it ted i t s observat ions p urs uan t to theOrder.^ The Pro secutio n states that , in principle, it favours b ring ing the trial as closeas possible to the vic t ims an d i t acknowledg es that on e way to do this is by holdin gthe trial in the region where most vict ims reside and/or where the crimes occurred.^However, the Prosecution identifies several concerns with holding the trial inKenya or Arusha, including the security challenges that holding the trial in Kenyaor Arusha would br ing, par t icular ly regarding a t tempts to interfere wi th t r ia lwitnesses as the Court has no infrastructure in place there to ensure the security oftrial witnesses.^ Furthe r, the Prosecution hig hlights i ts concern tha t som e w itnesse san d victim s ma y be un will in g to test ify in the region,^^ an d th at i t is impo rtan t forthe trial not to be delayed due to the logist ical implications result ing from a changeof location." The Prosecution suggests that holding portions of the trial in Kenya orArusha could strike the right balance between bringing the trial as close as possibleto the affected region and the need to protect witnesses.^^

^ ICC-01/09-01/11-580.^ ICC-01/09-01/11-615.^/Z7/t/.,para. 2.^ Ibid.,p3rsi. 3.*/^/^. ,para.4.* Ibid., parsi. 5.^ Ibid,, para. 6.N o . ICC-01/09-01/11 4/9 3 Ju n e 2013

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5. O n 22 Feb ruar y 2013, the Co m m on L egal Rep resentative for Victims in this casefiled his obs ervatio ns pu rsu an t to the Order . ^ The Co m m on Legal Rep resentativeand his team ascertained the views and concerns of 50 victims admitted topart icip ate in th e trial.^^ 82% of the victims co nsider that the trial shou ld con tinue tobe he ld at The Hague^^ for reas on s of security, ^ fears of vict ims' and witnesses'int im idat ion ^ ' 'and in order to avoid delays.^^ In addi t ion, the Com m on LegalRepresenta t ive presents his own view that the Chamber should consider changingthe venue of the trial to Arusha, Tanzania, arguing that this would facil i tatemeaningful part icipation by, and representation of, vict ims within an extremelyl imi ted budget . ^ He also argues tha t moving the t r ia l c loser to Kenya wouldgenera te impetus towards crea t ing the proposed Internat ional Crimes Division ofthe High Court of Kenya.^

6. On 22 February 2013, the Registry fi led i ts obse rvation s p ur su an t to the Order . ^ TheRegistry gives a detailed account of the logist ical and security issues relevant to achange of venue. The Regist ry highl ights some re levant considera t ions inc luding:i) the l ikely increase of the interest of internation al m edia an d the local and regiona lcov erag e, ^ ii) the lack of facilities in th e ICTR co urt ro om to p ro vi de for thepossibility of having voice and facial distortion for protected witnesses,^^ and iii) thefact that if the trial in the case of Prosecutor v. Jean-Pierre Bemba Combo is still taking

^ Common Legal Representative for Victims' Observations in relation to the "Joint Defence Application for change ofplace where the Court shall sit for Trial", ICC-01/09-01/11-620.The Common Legal Representative met with 94 victims, of whom only 50 gave their views while the rest chose toabstain or were not ready to give their views, ibid, para. 3.* ICC-01/09-01/11-620, para. 5.^ Ibid , para. 6.^ Ibid., paras 6 and 9.^ Ibid, para. 10.^ Ibid, para. \4.^ Ibid., para. 2\.^ Registry Observations in relation to the "Defence Application for change of place where the Court shall sit for Trial,"ICC-01/09-01/11-617.^ Ibid, para. \9 .^ Ibid., para. 24.N o. ICC-01/09-01/11 5/9 3 Ju ne 2013

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place at the Court , freelance interpreters would need to be recruited.^^ The Registrysuggests that , in the event that the trial is to take place away from the seat of theCo urt , the proc eedin gs s ho uld be held in A rus ha at the ICTR. ^ Furth er, the R egistrysuggests tha t any proceedings away from the Court should be l imi ted to tworela t ively short per iods of three to four weeks maximum during which the openingstatements and specific witnesses could be called to testify.^^

7. Further , the Regist ry dra ws the Cham ber 's a t tent ion to the Agreem ent of Pr ivi legesand Immuni t ies , which Kenya has not s igned or ra t i f ied and which Tanzania hassigned but not ratified.^^

8. On 11 M arch 2013, the Registry subm itted a repor t containing five confidentialannexes containing official correspondence between the Court and the authorit ies ofKenya and Tanzania and the ICTR. The correspondence includes: i) a let ter whichthe Registry received on 12 February 2013 from the Attorney General of Kenyastating that the Kenyan Government has no objections to the change of the trialven ue to Nairobi or Arusha and that the Court wo uld receive the ful l coopera t ion ofthe Government of Kenya;^^ and i i) a let ter which the Registry received on 5 March2013 from the Registrar of the ICTR stat ing that the ICTR is will ing and able toprovide cooperation to the ICC to the extent that i ts downsizing activit ies al low, inlight of its expiring m andate.^^ As of the da te of i ts report , th e Registry h ad notreceived a reply f rom the Tanzanian authori t ies .^

^Ubid.,para. \{ .^ Ibid , para. 30.^ Ibid, para. 3\ .^ Ibid., paras 2-4.^ ICC-01/09-01/1 l-643-Conf-Anx4.^ ICC-01/09-01/1 l-643-Conf-Anx5.^ ICC-01/09-01/11-643, para. 6.N o . ICC-01 /09-01/11 6/9 3 Ju n e 2013

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A n a l y s i s a n d r e c o m m e n d a t i o n9. Article 3(3) of the Statute prov ides: "[t]he Cou rt ma y si t elsew here [than in The

Hag ue] , wh enev er i t considers it desirable , as provid ed in this S ta tute ."10 . The Cham ber ack now ledges the importanc e of securi ty for vict ims and wi tnesses in

these proceedings and the need to ensure a fair and impartial tr ial free of any undueinfluence. However, at the same t ime, the Chamber also notes the proposed benefitsof moving the trial to Kenya as a means of bringing justice closer to vict ims and theaffected communities in Kenya. The Chamber also underscores the significance ofholding the trial close to the locali ty where the al leged crimes were committed. TheChamber is of the view that al l these considerations need to be taken into account.Therefore , the Chamber considers tha t the holding of the commencement and otherportions of the trial part icularly in Kenya would strike the right balance. TheChamber has given ser ious considera t ion to the pledge of support f rom theGovernment of Kenya in i ts decision to recommend that part of the trial be held inthat country. The Cham ber no tes tha t the par ties , the Registry an d the views of theCommon Legal Representative for Victims himself are al l favourable to theprop osal tha t a por t ion of the t ria l be held awa y from The Hag ue. The Cham ber wi l lat the relevant t ime re-visi t the possibil i ty of holding portions of the trial in Kenya,subject to security and logist ical considerations, and taking into consideration therights of the accused to a fair and expedit ious trial as well as the victims' views andconcerns.

11 . The Cha mb er i s of the view that hold ing po rt ions of t r ia l in Kenya w ou ld best servethe purposes ident i f ied above. However , the Chamber considers tha t Tanzania ,which was a lso recommended by the par t ies , could a lso serve as an appropria tevenu e, a l though to a lesser degree . The Cham ber no tes in this regard that it d id no treceive any response from the Tanzanian authorit ies and i t is thus unable to

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determine whether the authori t ies would be prepared to provide support i f theChamber were to s i t in Tanzania . Notwi thstanding the foregoing, the Chamberrecommends that Tanzania should cont inue to be explored as a very goodalternative for the hearings, in view of the availabil i ty of ready-made internationalstandard court facil i t ies at the ICTR and i ts Residual Mechanism. To that end,renewed effor ts should be made for purposes of genera t ing a react ion from theGovernment of Tanzania .

12. In order to facil i tate an expedit ious further examination of the proposal to holdportions of the trial in Kenya or, al ternatively, in Tanzania, the Chamber hasrequested the Registry to explore practical aspects of the proposal and prepare afeasibil i ty study.

F O R T H E F O R E G O I N G RE A S O N S , T H E CH A M BE R H ERE BY :

Notifies the Presidency, after seeking and obtaining observations from the part ies andparticipants, as well as from the Government of Kenya and the Registrar of the ICTR, thati t may be desi rable to hold the commencement of t r ia l and other por t ions thereof, to bedetermined at a later stage, in Kenya or, al ternatively, in Tanzania, subject to theconsidera t ions discussed in parag raph s 10 and 11 above.

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Do ne in both Engl ish and French, the Engl ish version being authori ta t ive .

Judge Chi l e Eboe-Osuj i , P res id ing Judge

Judge Olga Her re ra Carbucc ia Judge Rober t F remr

D ated this 3 June 2013At The Hague, The Nether lands

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recommendation to the presidency on where the court shall sit for trial

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