ICC prosecutor agrees some cases can be heard locally

By Felix Olick

KENYA: International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda has agreed that a portion of cases against four Kenyan suspects can be heard in Kenya or Tanzania.

But legal representatives of victims of the 2007/2008 post-election violence, Fergal Gaynor, rejected the idea of moving the cases from The Hague.

In her submission, Bensouda raised several security concerns bedevilling her witnesses but conceded that part of the trial could be held in Arusha or Kenya as the accused requested.

Considerations

“One suggestion may be to hold portions of the trial in Kenya or Arusha, Tanzania, such as the opening/closing statements, the unsworn oral statement pursuant to Article 67(1)(h), the testimonies of the two accused and/or the testimonies of international experts,” Bensouda said.

The Chief Prosecutor noted such hearings could strike the right balance between bringing the trial closer to the affected region, thus satisfy public interest in the case, and the need to protect witnesses.  She said hearing portion of the cases locally might also give the bench an opportunity to visit locations of relevance in presence of the parties.

She, however, told the Trial Chamber V that in determining where the court shall sit, the judges must consider unique security challenges and unprecedented level of witness interference.

Ms Bensouda said security challenges include extra-judicial killings and forced disappearances of individuals with direct knowledge of the accused’s involvement in the post-election violence.

“The prosecution’s concern is that the attempts to interfere with trial witnesses would increase if the trials were held in Kenya and, to a lesser extent, in Arusha, Tanzania, where the accused have significant influence and where the public interest in the trial is extremely high and where the court has no infrastructure to ensure the security of trial witnesses,” she noted.

She said some witnesses and victims might be unwilling to testify in the region, adding that changing the location of testimony, this late, may adversely impact on witness’s well being or even change their attitude.

But representatives of victims said about 97.4 per cent of victims want the trials heard in The Hague.

Gaynor said victims expressed fear proximity to the accused would increase threat levels since the accused could easily mobilise their supporters to intimidate and interfere with victims participating in this trial.

“Many also expressed the view that a trial in or near Kenya could not be fair, as the accused, who the victims perceive to be very rich and powerful, could more easily exercise undue influence, including bribery and intimidation, over those involved in the proceedings,” Gaynor told the judges.