Questions and Answers on recent developments at the International Criminal Court regarding the Situation in Kenya, March 2013

This Q & A paper aims to respond to various Media questions that have been put to the ICC following several recent developments in the two Kenyan cases before the Court. An audio and video version of these messages is also available.
1. Will the International Criminal Court (ICC) continue proceedings against Mr Uhuru Kenyatta and Mr William Ruto now after the elections results have been announced? Yes, the proceedings will continue. No one is exempt from prosecution because of his or her official position. Article 27 of the Rome Statute, to which Kenya had made a sovereign decision to join, holds that neither the immunity of a head of state nor the official position of a person suspected to bear the greatest responsibility for serious crimes under the ICC will bar the Court from exercising its jurisdiction. Therefore, for the purposes of trial proceedings before the Court, the Kenyan elections results make no difference. While the Court is aware of the political developments in Kenya, these have no bearing or influence on the ICC as an independent judicial institution. At present Mr Kenyattas trial is scheduled to commence on 9 July 2013 and Mr Rutos on 28 May 2013. 2. The Office of the Prosecutor indicates that new evidence will be presented against Mr Kenyatta. Does this mean that the case will be sent back to the PreTrial Chamber? No. The Office of the Prosecutor continues its investigations in Kenya, even after the charges have been confirmed. If new evidence is collected which is related to the charges already confirmed at the pre-trial stage, the Prosecutor can present that evidence before the Trial Chamber. On 7 March 2013, the Defence in the Kenyatta case applied to Judges of Trial Chamber V to refer the case back to the Pre-Trial Chamber for reconsideration of the charges that were confirmed, because one witness recanted his testimony. ICC Trial Chamber V will decide, in due course, on this request. 3. Why have the Judges postponed the start of the trials in the two Kenyan cases? On 7 March 2013, Trial Chamber V decided to postpone the start of the trial against Mr Kenyatta and provisionally set the date for 9 July 2013. The Judges delayed the start of the trial upon the Defences request, considering that a number of important legal issues raised by the Defence would need to be resolved before the start of the trial, including, among other issues, the request for the case to be sent back to the Pre-Trial Chamber. And, on 8 March 2013, Trial Chamber V decided to postpone the start of the trial against Mr Ruto and Mr Sang until 28 May 2013. The Judges have delayed the start of trial because the Defence for Mr Ruto and Mr Sang asked for more time to prepare, since key information was disclosed to them only in January 2013.The Judges granted the Defences request. The date of the trial opening is now set for 28 May 2013. 4. What is the impact of the withdrawal of Witness 4s evidence on Mr Kenyattas case? Considering the withdrawal of the evidence given by Witness 4, Mr Kenyattas Defence team has requested the Trial Chamber to send Mr Kenyattas case back to the Pre- Trial Chamber for reconsideration of the decision to confirm charges against Mr Kenyatta. The Office of the Prosecutor opposes this request, considering that there is no legal basis for the request and considering that, in the view of the Office of the Prosecutor, the PreTrial Chamber would have confirmed the charges at the pre-trial stage relying on the other evidence and even without evidence from Witness 4. Ultimately, it will be for the Trial Chamber V to decide, in due course. 5. Will the victims of the 2007/2008 post-election violence get justice from the ICC given the Prosecutors withdrawal of the charges against Mr Muthaura? The cases against Mr William Ruto and Mr Joshua Arap Sang and against Mr Uhuru Kenyatta, are scheduled to start on 28 May and 9 July 2013 respectively for the same charges as confirmed before. The withdrawal of the charges against Mr Muthaura will not affect victims participation at trial. Victims who wish to participate will be able to do so in both the Ruto and Sang case, as well as the Kenyatta case. 6. What is the impact of the withdrawal of charges against Mr Muthaura on the case against Mr Kenyatta? In a 13 March 2013 filing to the Judges, the Office of the Prosecutor highlighted the fact that the Prosecution has consistently alleged that Mr Muthaura and Mr Kenyatta played different roles in the post-election violence. As such, the evidence presented against one was different from the evidence presented against the other, and the Prosecutions position is that the withdrawal of charges against Mr Muthaura does not in any way, legally or factually, alters the Prosecutions case against Mr Kenyatta. 7. The Office of the Prosecutor mentioned threats on witnesses in the Muthaura case. How can the ICC ensure these threats are not repeated in the Kenyatta case? The Prosecutor has publicly stated that the scale of witness interference that the Office of the Prosecutor has encountered in the Kenya cases has been unprecedented. The Court has developed a programme to protect witnesses with appropriate and proportioned measures when needed and will address the situation in Kenya in an adequate manner. Protective measures may, for example, include anonymity for witnesses, the use of pseudonyms, the redaction of documents or the prohibition of disclosure thereof and the use of audio-visual techniques which can disguise the identity of witnesses appearing before the Court. The Court also ensures that witnesses are provided with adequate protective and security measures through long and short-term protection programmes. Under exceptional circumstances, the Court may decide to relocate, on a temporary or permanent basis, a witness. 8. The Prosecutor indicated in her statement on the Muthaura case that there was no cooperation from the Kenyan State. What type of cooperation from the Kenyan government was expected? How did the lack of cooperation affect the Muthaura case? For it to be meaningful, cooperation has to be timely and tangible. As a State Party to the Rome Statute and bound by the obligation to fully cooperate with the Court, Kenya is expected to effectively facilitate investigations by providing all forms of assistance and positively respond to requests for materials, information and access to various types of records. According to the Prosecutor, there has been some failure to assist in uncovering what may have been crucial evidence against Mr Muthaura 9. Can we expect more or less cooperation with the Court after the Kenyan presidential elections? Kenya as a sovereign country decided to join the community of States Parties to the Rome Statute in order to participate in the international fight against the impunity of the perpetrators of the most serious mass crimes. By joining sovereignly the Rome Statute system, Kenya has the obligation under international law to fully cooperate with the Court and to accept the ICCs legal framework, including the absence of immunity for any person whatever his/her official capacity is. Mr Kenyatta had also declared on several occasions, and made written submissions to the ICC Judges, indicating his will to continue cooperating with the Court. The ICC expects all the Kenyan accused as well as Kenyan authorities to fully comply with all their obligations. 10. Will Mr Kenyatta and Mr Ruto be required to attend trials in person or will they be attending trials remotely via video link? At the ICC, trials cannot be conducted in the absence of the accused person. The accused must be present at their trial. In a filing on 28 February 2013, Mr Kenyattas Defence requested the Judges to have him participate in his trial via video link. The judges have yet to decide on this issue, and to decide whether this participation would satisfy the legal requirement of the accuseds presence at his trial; we cannot speculate on their decision. 11. Where will the trials be held? Under the ICC system, is it possible to hold trials outside the seat of the Court in The Hague? Unless the Judges decide otherwise, ICC trials take place at the seat of the Court in The Hague (The Netherlands). According to the Rome Statute, the conduct of trials in a situation-related country or another location may also be ordered by the Judges. The Defence lawyers for the accused persons have filed submissions requesting the judges to hold the trials in Kenya or in Arusha (Tanzania). A decision by the Judges is expected on this issue. It is important to note that irrespective of the territory where the trials will take place, the cases remain under the ICCs jurisdiction the trials will be conducted by ICC Judges and guided by ICC legal principles. 12. What are the possible legal actions if it is proved that ICC witnesses have been bribed or have been found to lie? Under the Rome Statute, acts such as the bribery of witnesses or giving false testimony are deemed as an obstruction to the administration of justice. In such a situation, the Court may sanction the person who has lied or bribed the witness, imposing a fine and/or a term of imprisonment not exceeding five years. 13. Will the ICC compensate or refund Mr Mauthauras legal fees and other expenditures he may have incurred since the charges against him have now been withdrawn? According to the Rome Statute, a person who has been a victim of unlawful arrest and detention, or a serious miscarriage of justice that led to a conviction after a trial, may have the right to compensation. Mr Mauthaura has never been arrested nor has he been in the ICCs custody; thus, this situation does not apply to him.
This is not an official document. It is intended for public information only.