Thomas Obel Hansen joins JiC for this fascinating guest-post on the internal and external pressures facing the ICC in the Kenya cases. Thomas is an independent consultant and an assistant professor of international law with the United States International University in Nairobi, Kenya.
Prosecuting a sitting Head of State and his Deputy at the ICC was always going to be a complicated task. While the ICC can claim success in that the first of the two Kenya trials commenced Tuesday last week with William Ruto, the Deputy President of Kenya, present before Trial Chamber V(a), it is no secret that the trials are marred with controversy.
As the Prosecution continues to express concerns over the level of witnesses intimidation in the Kenyan cases, the Ruto Defence used his opening statement to deliver an all-out attack on the Office the Prosecutor, claiming that it is guilty of performing a “lazy prosecution”, being “indifferent to the truth” and constituting part of a “glaring conspiracy of lies”. At the same time, political leaders in Kenya – supported by countries in the region – are adding unprecedented pressure on the Court to have it their way. The African Union is reported to have planned an extraordinary summit to (once again) discuss what can be done to end the Kenyan ICC cases. And, as Mark discusses here and here, Kenya’s Parliament has been pushing for a withdrawal from the Rome Statute, although any action by the Kenyan government to this effect would have no impact on the obligation to cooperate with the Court with respect to the ongoing cases.
But there is another aspect to the enduring mobilization against the ICC which has so far received little attention, namely that political actors are increasingly focused on influencing the outcome of specific proceedings before the Chambers. This begs the question: is the Court able to deal with such pressure and protect its institutional interests?
During a status conference on September 9 – just one day before the trial hearings in the Ruto & Sang case commenced –Presiding Judge of Trial Chamber V(a) Eboe-Osuji announced that the Chamber had considered the matter of the two Kenya cases running simultaneously or on alternating days and had come to the conclusion that “running the cases simultaneously will not necessarily expedite them”. Accordingly, Judge Eboe-Osuji stated that it was “the Chamber’s preference that the Court sits on a four-weeks alternating period”.
Keeping in mind that two of three judges who sit on the Trial Chamber that is handling the Ruto & Sang case also have a seat in the Chamber that is handling the Kenyatta case, this might have seemed a reasonable decision, had it not been because the same Chamber, in a ruling of 29 August, rejected Ruto’s request that the Chamber sits on alternating periods on the basis that it would not be “an efficient way to conduct the proceedings in the present case”.
Curiously, this change of mind took place only one day after President Uhuru Kenyatta, whose trial is currently scheduled to commence on 12 November this year, made it clear that he would only continue to cooperate with the ICC if the Court’s schedule suits him:
“They should not make it impossible for the sovereign nation of Kenya to be led as its citizens democratically chose…We will work with the ICC but it must understand that Kenya has a constitution and Ruto and myself won’t be away at the same time…If they want us to cooperate, they must ensure that when Uhuru is there (at Hague) Ruto is in the country.”
One can’t help but speculate that the Trial Chamber’s reconsideration of the issue may somehow have been influenced by Kenyatta’s remarks, a suspicion that Judge Eboe-Osuji himself made no attempts at proving wrong when he failed to clarify what had made the Chamber change its mind.
The danger with making such decisions is that they easily give the impression that it is the accused, not the judges, who are in charge of the proceedings. The ICC’s legitimacy is not only contingent on the Court making sound decisions, but also on the appearance that these decisions are impartial and based on the Court’s preferences – not the accused’s.
In a separate development last week, a number of African states engaged in what appears to be a well-coordinated attempt at influencing the Appeals Chamber’s soon-to-be-expected ruling on the Prosecutor’s appeal of the Trial Chamber’s decisionto grant Ruto’s request for excusal from continuous presence at trial. Almost simultaneously, Tanzania, Rwanda, Burundi, Uganda and Eritrea filed applications with the Registry to be granted leave to file amicus curiae briefs under Rule 103(1) of the Rules of Procedure and Evidence. This is, to my knowledge, the first time that States Parties – not to mention non-States Parties – have sought the Court’s permission to file legal observations with respect to ongoing proceedings to which they are not parties and which do not directly affect any of their nationals. Continue reading



















