Decision Concerning the Government of Kenyas Submissions on Its Cooperat...

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Cou rPna 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 lC r i m i n a lC o u r t

Original: English No.: ICC-0iy09-01/llDa te: 3 Ju ly 2013

TRIAL CHAMBER V(A)

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

SITUA TION IN THE REPUBLIC OF KENYAIN THE CASE OF

THE PROSECUTOR v. WILLIAM SAMOEI RUTO AND JOSHUA ARAPSANG

Public

Decision concerning the Government of Kenya's Submissions on itscooperation with the C ourt

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Decision to be notified, in accordance with Regulation 31 of the Regulation s of the Court, to:The Office of the Prosecuto r Cou nsel for W illiam Sam oei RutoMs Fatou Bensouda Mr Karim KhanMr James Stewart Mr Kioko Kilukumi Mu sauMs Adesola Adeboyejo Mr David Ho oper

Counsel for Joshua Arap SangMr Joseph Kipchumba Kigen-KatwaMr Silas Chekera

Legal Repres entatives of V ictimsMr Wilfred Nderitu

Legal Representatives of Applicants

Unrepresented Victims Unrepresented Applicants forParticipation/Reparation

The Office of Public Counsel forVictimsMs Paolina M assidda

The Office of Public Counsel for theDefence

States RepresentativesMr Githu Muigai, Attorney General,Republic of Kenya

Amicus Curiae

REGISTRYRegistrarMr Herman von Hebel Deputy Registrar

Victims and W itnesses Unit De tention Section

Victims Participation and Rep arations Oth ersSection

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Trial Chamber V(A) ("Chamber")^ of the International Criminal Court ("Court"), inthe case of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, having regardto Articles 64(2), 64(6)(f) and 87(7) of the Rome Statute ("Statute"), Rule 103(1) of theRules of Procedure and Evidence ("Rules"), and Regulations 24(3), 31 and 109(3) ofthe Regulations of the Court ("Regulations") issues the following Decisionconcerning the Government of Kenya's Submissions on its cooperation with theCou rt ("Decision").I . P roc edu ra l h i s to ry

1. On 8 April 2013, the Government of the Republic of Kenya ("KenyanGovernment") filed the "Government of Kenya's Submissions on the Status ofCooperation with the International Criminal Court, or, in the alternative.Ap plication for Leave to file O bservations p urs ua nt to Rule 103 (1) of the Rulesof Pro cedure and Evidence" ("Submissions").^

2. In the Submissions, the Kenyan Government set forth responses to allegationsof non-cooperation raised by the Office of the Prosecutor ("Prosecution") invarious public filings and statements. The Kenyan Government asserted that itwas entitled to file the Submissions pursuant to Part 9 of the Statute,Reg ulation 24(3) of th e R egulations and the audi alteram partem principle.^ Inthe alternative, it sought leave to file observations pursuant to Rule 103(1) ofthe Rules and for the substantive parts of the Submissions to be treated asthose observations.^

3. On 24 April 2013, the Chamber ruled that as the Kenyan Government is not aparty to or participant in the current proceedings, leave was required pursua nt

^ Where "Chamber" is used in this decision it refers to both the Trial Chamber V in its composition as until 21May 2013 and to Trial Chamber V(A) as composed by the Presidency's Decision constituting Trial ChamberV(a) and Trial Chamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto andJoshu a Arap Sang and The Prosecuto r v. Uhuru Muigai Kenyatta, 21 May 2013, ICC-01/09-01/11-745.^ ICC-01/09-01/11-670.^ ICC-01/09-01/11-670, paras 13-14.^ ICC-01/09-01/11-670, para. 15.N o. ICC-01/09-01 /11 3/9 3 Ju ly 2013

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to Rule 103(1) of th e Rules in o rder for it to file observations.^ The Cham bergranted this leave and accepted the substantive parts of the Submissions as theKenyan Government's observations for the purposes of Rule 103(1) of theRules.^ In the same decision, the Chamb er directed the parties a nd participantsto submit any response to the Kenyan Government's observations within 14days.^

4. O n 8 M ay 2013, the Office of the Prose cutor filed its respo nse ("ProsecutionResponse"),^ as did the Co m mo n Legal Re presen tative for Victims ("CLRV")("CLRV Respo nse")^ and the defence tea m s for M r Ruto an d M r Sang.^

5. On 24 May 2013, the Registry transmitted to the Chamber a request from theKenyan Government seeking firstly, leave to reply the Prosecution Responseand, secondly, in the event leave is granted, an extension of the time limitspecified in Regulation 34(c) of the Regulations to allow the reply to be filedw ithin ten day s of notification of the Trial Cham ber's decision. ^

6. On 30 May 2013, the Cham ber gra nted the Kenyan G ove rnm ent leave to file areply to the Resp onse w ithin 10 days of notification of the decision.^^ The replywas duly filed on 10 June 2013.^^

5 Decision on the Government of Kenya's application for leave to file observations pursuant to Rule 103(1) ofthe Rules of Procedure and Evidence, ICC-01/09-01/11-700, para. 2.^ ICC-01/09-01/11-700, para. 2.^ ICC-01/09-01/11-700, para. 3.^ Prosecution Response to the "Govemment of Kenya's Submissions on the Status of Cooperation with theIntemational Criminal Court, or, in the alternative. Application for Leave to file Observations pursuant to Rule103(1) of the Rules of Procedure and Evidence" (ICC-01/09-01/11-670), ICC-01/09-01/11-730-Conf-Exp. Apublic redacted version was filed on 10 May 2013.^ Victi m's R esponse to the Govem ment of Kenya 's Submissions on the Status of Cooperation w ith theIntemational Criminal Court, ICC-01/09-01/11-732. A Corrigendum was filed on 16 May 2013.^ Defence Response to the Govemment of Kenya's Observations Pursuant to Rule 103(1) of the Rules ofProcedure and Evidence on the Status of Cooperation with the Intemational Criminal Court, ICC-01/09-01/11-727-Conf. A public redacted version was filed on the same day. Sang Defence Response to Submissions by theGovemment of the Republic of Kenya, ICC-01/09-01/11-729.* Registry Transmission of a document receivedfi-om he Govemm ent of the Republic of Kenya, represented bythe Attorney General of Kenya, ICC -01/09-01/11-754 and Annex 1. The Request wa s filed as a public document.On 27 May 2013, the Registry transmitted a confidential ex-parte, Kenyan Govemment and Prosecution onlyversion of the Request to the Cham ber. ICC-01/09-01/11-755-Conf-Exp and Annex 1.^ Decision granting the Govemment of Kenya leave to reply, ICC-01/09-01/11-757.* Reply by the Govem ment of Kenya to the "Prosecution response to the 'Govem ment of Keny a's Submissionson the Status of Cooperation with the Intem ational C riminal Court or, in the alternative. Application for Leave tofile Observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence' (ICC-01/09-01/11-670)",ICC-01/09-01/11-769.N o. ICC-01/09-01/11 4/9 3 July 2013

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7. This Decision addresses two procedural requests made by the KenyanGovernment in the Submissions and by the Prosecution in the Response.

8. As note d in its decision of 30 May 2013 granting leave to reply, the C ham ber isnot presently seized of any application for a ruling in respect of the KenyanGovernment's compliance with its obligations under Part 9 of the Statute.Accordingly the Chamber does not make any substantive findings on thatissue in this Decision.

IL Kenyan Government 's requestA. Submissions

9. The Ken yan Gov ernm ent requests the Cham ber to issue an order to the partiesand participants in the Kenya situation requiring that applications orcomplaints of non-cooperation by the Kenyan Government be made "onnotice" so as to ensure that it is made aware of and can respond to theapplication or complaint. ^ It expresses concern about the Prosecution'sapproach of "alleging non-cooperation and delaying tactics" in support of itslegal submissions and requested relief without affording the KenyanGovernment an opportunity to respond.^^ It submits that requiring these kindsof allegations to be made "on notice" would "enhance the decision makingprocess of the Trial Chamber and also be conducive to public order inK e n y a . " i 6

10. The Prosecution subm its that since the Kenyan Go vernmen t has been providedwith ample notice of the Prosecution's dissatisfaction regarding the level ofcooperation, th e reques t sou ght is mo ot an d s hould b e denied.^^ It submits tha tthere is "no need to impose a notification requirement that would inform the[Kenyan Government] of what i t already knows". ^ The Prosecution further

^ ICC-01/09-01/11-670, paras 16 ,45 .^ ICC-01/09-01/11-670, para. 24.* ICC-01/09-01/11-670, para. 16.^ ICC-/01/09-01/11-730-Red, paras 42-44.^ ICC-/01/09-01/11-730-Red, para. 44.N o. ICC-01/09-01/11 5/9 3 Ju ly 2013

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submits that as the Kenyan Government is not a party to or participant in thecurrent proceedings, it can only be notified within the meaning of Regulation31 of the Regulations, if its interests are implicated. ^ The Prosecutionacknowledges, however, that in the event of any future litigation pursuant toArticle 87(7) of the Statute the Kenyan Government should be given theopportunity to be heard.^o

11. The defence for Mr Ruto supports the request, submitting that the KenyanGovernment should be entitled "to answer [the Prosecution's] allegations" andthat the Prosecution should be "required to cease making such allegation ifunfounded, or else to make such allegations in an inter partes hearing wherethe allegations of cooperation or non-cooperation can be properly determinedby the Trial Chamber".^^Likewise the defence for Mr Sang supports the KenyanGovernment's request to be notified of allegations of non-cooperation so as toensure that the Kenyan Government "can respond appropriately" and that theallegations are "adjudicated by the Chamber rather than the court of publicopinion."22B. Analysis

12. The Kenyan Government does not identify any specific legal basis for itsrequest for notification. However, the request can be understood to be made onthe same basis as the Kenyan Government's assertion that it is entitled torespond to allegations of non-cooperation made in the proceedings, namelyPart 9 of the Statute, Regulation 24(3) of the Regulations and the audi alterampartem principle. ^ The Chamber has already rejected this assertion in itsdecision of 24 April 2013, whereby it ruled that, as the Kenyan Government isnot a party to or participant in the proceedings, it required leave pursuant to

* ICC-/01/09-01/11-730-Red, para. 45.^ ICC-/01/09-01/11-730-Red, para. 45.^ ICC -01/09-01/11-727-Red, para. 4.^ ICC-01/09-01/11-729, para. 4.^ ICC-01/09-01/11-670, paras 14 -15.N o. ICC-01/09-01/11 6/9 3 July 2013

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Rule 103(1) of the Rules to file submissions in response to the Prosecution'spast allegations of non-cooperation. The terminology of filing a motion "onnotice" as it is used in the Submissions implies a general requirement upon aparty to litigation to inform an oppo sing party of reques t for relief m ade to thejudges in the case. Strictly speaking, that requirement does not apply in orderto inform non-parties to the litigation of requests or other filings made in thecase. Given that the Kenya Government is not a party or participant to thepresent proceedings, the notice requirement does not apply to it as a generalmatter.

13. As acknowledged by the Prosecution, different considerations would apply inthe event of an application for a finding of non-cooperation and referral to theAssembly of State Parties pursuant to Article 87(7) of the Statute. As expresslyrecognised in Regulation 109(3) of the Regulations, the Kenyan Governmentwould have a right to be heard in such a case. It would be entitled to benotified of relevant filings and to submit responses in accordance withRegulations 24(1) and 31 of the Regulations.

14. In the present circumstances, however, where no such application has beenfiled the Chamber finds that the Kenyan Government has no express rightunder the Court's statutory framework to be notified of filings which includesubm issions relating to its cooperation.

15. Notwithstanding the above, the Chamber agrees with the Kenyan Governmentthat in circumstances where allegations of non-cooperation are relied upon insupport of a request for relief, hearing from the Kenyan G overnm ent m ay be ofbenefit to the Chamber's determination of the request and to its overall duty,un de r Article 64(2) of the Statute , to ens ure a fair and expe ditiou s trial. ^Formal notification will ensure that the Kenyan Government is informed ofrelevant filings in a timely way and can determine whether to submit a requestfor leave to file observations in response pursuant to Rule 103(1) of the Rules.

^ Article 64(2) of the Statute.N o. ICC-01/09-01/11 7/9 3 Ju ly 2013

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This f inding is wi thout pre judice to the Prosecut ion 's r ight pursuant toRegulat ion 23 bis{l) of the Regulat ions to designate relevant fi l ings ascon fidential or confide ntial ex parte no t to be notified to the K eny anGovernment . In such cases, a redacted version should be not i f ied to theK e n y a n G o v e r n m e n t , w h e r e v e r p o s s ib l e.

I I I . P r o se c u t i o n ' s r e q u e s t

A . S u b m i s s i o n s16. The Prosecut ion asser ts tha t the Submissions publ ic ly disc losed the existence

and volume of Prosecut ion requests for assis tance , as wel l as the speci f icinform at ion requested.^^ It sub m its tha t publ ica t ion of this informat ion vio la testhe req uire m en t in Art ic le 87(3) of the Sta tute for requ ests for coo pera t ion to bekep t conf iden t i a l and reques t s t he Chamber t o cau t ion the KenyanGo ve rnm en t reg ard ing Art ic le 87(3) 's confident ia l i ty req uirem ent . ^ TheProsecut ion expla ins tha t i t has inc luded references to the confident ia linformat ion in the publ ic version of the Response on the grounds tha t "fur therconfident ia l t rea tment i s no t warranted, s ince the pre judice caused by thedisc losu re is irreversible".^^

17 . In i t s request for leave to reply to the Response , the Kenyan Governmentapo log i se s fo r wha t i t t e rms an " inadve r t en t d i sc lo sure" and assures theChamber tha t i t "wi l l p roceed wi th the appropr i a t e and necessa ry cau t ion"when referr ing to confident ia l requests for assis tance in the future .B. A n a l y s i s

18 . In l igh t o f t he apo logy and assurance prov ided by the Kenyan Government ,the P rosecu t ion ' s requ es t fo r a cau t ion can be cons ide red mo o t an d need n o t ber u l e d u p o n b y th e C h a m b e r .

^ ICC-/01/09-01/11-730-Red, para. 39.^' ICC-/01/09-01/11-730-Red, paras 39-41.^ ICC-/01/09-01/11-730-Red, para. 7.N o . ICC-01/09-01/11 8/9 3 Ju ly 2013

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FOR THE FOREG OIN G REA SONS, THE CHAMBER:DIRE CTS t he parties an d participan ts to request notification of relevant filings tothe Kenyan Government in accordance with paragraph 15 of the present Decision;andDISMISSES as moot the Prosecution's request for the Chamber to caution theKenyan Go vernm ent in relation to the confidentiality require m ent in Article 87(3)of the Statute.

Don e in both English and French, the English version being auth oritative.

Judg e Chile Etfe-Osuji, Pres iding

Judge Olga Herrera Carbuccia J vJudge Robert Fremr

Da ted 3 July 2013At The Hag ue, The N etherlands

N o. ICC-01/09-01/11 9/9 3 July 2013

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