Anxious wait for suspects as Hague hearings close

By Lillian Aluanga

A promise of impartiality, a plea to the public and a warning to suspects are what wrapped up weeks of confirmation of charges hearings at the International Criminal Court.

But even as the curtains came down on the month-long process that saw defence teams for Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, journalist Joshua Sang, Civil Service head Francis Muthaura, Deputy PM Uhuru Kenyatta and former Police Commissioner Hussein Ali put up a spirited fight, the question that still lingers is what happens next. In her remarks at the close of the proceedings, Presiding Judge Ekaterina Trendafilova urged the public not to harm witnesses or victims and promised the three judges would reach an impartial decision on the Kenyan cases.

She also reminded suspects to stick to the conditions given by the court when summonses to appear before it are issued.

"It is not the last we have heard of the ICC. We may, between now and when the judges make their decision, hear from the defence teams and the prosecution, who may file applications during this period," says International Centre for Transitional Justice’s Christine Alai.

Among options that still remain open for the suspects in the coming weeks is that of challenging the jurisdiction of the cases, which differs from the admissibility challenge earlier lodged by the Government.

Filed submissions

The Government had, in March, filed a submission challenging the ICC on its cases against the six suspects.

In its argument, the Government cited acquisition of a new Constitution and other reforms as proof of its capability to handle the cases. This was, however, turned down by Pre-trial Chamber II judges, who maintained the Government had "failed to provide it with any information as to the conduct, crimes or incidents for which the suspects are being investigated or questioned for".

An appeal by the Government was also struck out in August, but part of the defence team has reiterated they would challenge admissibility and jurisdiction of the cases.

"The defence teams still have an opportunity to challenge aspects of material jurisdiction of the case," says Alai. What this means is that while the ICC has jurisdiction over crimes classified as war crimes, crimes against humanity and genocide, there are elements within each of them that qualify them as international crimes, and which must be shown to have been committed for the case to be committed to trial.

"It is not enough for the prosecution just to show that murders were committed. It must show that these murders were widespread and, or, systematic, that the acts were deliberately targeted at the civilian population and that whoever committed the crimes did it knowingly and was pursuing an organisational or State policy," she says.

Alai adds: "Defence teams still have an opportunity to pursue the challenge to jurisdiction option if they feel charges against their clients do not meet the threshold for crimes against humanity as perceived by the court". That the coming months will be an anxious wait for the suspects is not in doubt, as is the fact that their conduct during the period before judges decide whether to commit the cases to trial will be closely watched by the Chamber.

"Article 58 of the Rome Statute is clear on the conditions accompanying summonses and it would be in the suspects’ interest to adhere to them," says Dr Godfrey Musila, an International Criminal lawyer. Among them is a commitment by suspects not to engage in any activity that may incite or trigger violence, as well as desist from interfering with witnesses.

Although it has been suggested the Chamber may deliver a decision by December, Musila is of a different view.

"We may get the final word from the Chamber anywhere between January and March next year," says Musila, who is Director of the African Centre for International Legal and Policy Research.

The prosecutor has until the end of this month to hand in his submissions, while the defence teams have until the end of November to do so.

"It has taken up to six months in some cases, from the close of hearings to the judges issuance of a decision, but it is also worth noting the Kenyan case has been different from others handled by the ICC," he says.

Musila cites the uniqueness of Kenya’s case including the fact that there are two cases in one.

Final submissions

During final submissions to the court, legal counsel for the victims Morris Anya implored the judges to consider issuing a decision on both cases simultaneously.

"I think the consideration here is that there may be political implications of delivering the decisions at different times," says Musila.

Musila adds: "A lot has also happened during the time of confirmation of charges hearings, and one cannot rule out the possibility that the Chamber may consider this request."

Ordinarily, the Pre-trial Chamber issues a decision within 60 days of the end of confirmation of charges hearings. This period runs from the end of the oral hearings, unless the judges give more time for written submissions, which would then mean that the period will run from the time this deadline lapses.

If a decision is issued, any of the parties may ask the Pre-Trial Chamber to grant leave to appeal the decision should it have ruled that the cases be committed to trial.

If charges are confirmed, totally or partially, against one or more of the suspects, the case will be committed to a trial before a trial Chamber composed of three different judges, but this would only be with regard to the persons against whom charges were confirmed.

It is also instructive to note that should the cases be committed to trial, modalities of the proceedings will also be considered and may include making decisions on whether suspects should continue appearing voluntarily at the court or be detained for the duration of the trial.

There is no definite period between the start of a trial, from the time judges make their decision to the actual start of the process, and it is up to trial judges to make this decision.

In the Democratic Republic of Congo and Central Africa Republic cases before the ICC, it took almost a year before trials for suspects charged with crimes against humanity began.

There are other scenarios, however, which include the Pre-trial Chamber declining to confirm any of the charges.

But even such a decision does not prevent the prosecutor from presenting a subsequent request for confirmation of the charges on the basis of additional evidence.

The Chamber may also adjourn the hearing and request the prosecutor to consider providing further evidence or conduct further investigation, or amend the charges because available evidence show a different crime may have been committed.