ICC-01/09-02/11-752

07-06-2013 1/12 CB T

Original: English

No.: ICC-01/09-02/11 Date: 7 June 2013 TRIAL CHAMBER V(B)

Before:

Judge Kuniko Ozaki, Presiding Judge Judge Robert Fremr Judge Chile Eboe-Osuji

SITUATION IN THE REPUBLIC OF KENYA IN THE CASE OF THE PROSECUTOR V. UHURU MUIGAI KENYATTA Public Document Victims Response to the Defence Observations on Estimated Time Required to Prepare for Trial

Source:

Legal Representative of the Victims

No. ICC-01/09-02/11

1/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 2/12 CB T

Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Ms Fatou Bensouda Mr James Stewart Ms Adesola Adeboyejo Legal Representative of the Victims Mr Fergal Gaynor Unrepresented Victims Counsel for the Defence Mr Steven Kay Ms Gillian Higgins Legal Representatives of the Applicants Unrepresented Applicants for Participation/Reparation The Office of Public Counsel for the Defence

The Office of Public Counsel for Victims Ms Paolina Massidda Ms Caroline Walter States Representative

Amicus Curiae

REGISTRY Registrar Mr Herman von Hebel Deputy Registrar Mr Didier Preira Victims and Witnesses Unit Mr Patrick Craig Victims Participation and Reparations Section Ms Fiona McKay

Defence Support Section

Detention Section Other

No. ICC-01/09-02/11

2/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 3/12 CB T

I. Introduction 1. The Common Legal Representative for Victims (Legal Representative) respectfully submits the victims response to the Defence Observations on Estimated Time Required to Prepare for Trial with Confidential Annex A, Public Annex B, Confidential ex parte Annexes C and C.1 and Confidential Annexes C.2 to G (Defence Observations)1, which was notified to the Legal Representative in unredacted form on 17 May 2013.2 2. For the reasons set out below, the Legal Representative, on behalf of the victims in this case, opposes the Defence request to adjourn the commencement of trial until January 20143 and requests the Trial Chamber to commence this trial as soon as practicable.

II. The subject matter is directly related to the interests of victims 3. Article 68(3) of the Statute states: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

ICC-01/09-02/11-735-Red, 14 May 2013. The Defence Observations on Estimated Time Required to Prepare for Trial with Confidential Annex A, Public Annex B, Confidential ex parte Annexes C and C.1 and Confidential Annexes C.2 to G, No. ICC-01/09-02/11-735-Conf, dated 13 May 2013, and Public Annex B, was notified to the Legal Representative in redacted form on 14 May 2013. On 16 May 2013, the Chamber requested the Court Management Section to ensure that that access to confidential defence filing 735 and its confidential annex A be granted to the Common Legal Representative for Victims and the relevant members of the OPCV (email of 16 May 2013 to the Court Management Section from the Legal Officer of the Trial Chamber). 3 Idem, Defence Observations, para. 32.
1 2

No. ICC-01/09-02/11

3/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 4/12 CB T

4. Regulation 24(2) of the Regulations of the Court permits victims and their legal representatives to file a response to any document when they are permitted to participate in the proceedings in accordance with article 68, paragraph 3, and rule 89, sub-rule 1. 5. Reflecting these provisions, Trial Chamber V ruled that, in accordance with Regulation 24(2), the Common Legal Representative may file responses to documents but must first demonstrate that the subject matter at issue is directly related to the interests of victims.4 6. If granted, the Defences request to delay until January 2014 the commencement of trial would negatively impact on the right of the victims to know the truth about the crimes in question, to have those responsible convicted, and to receive just reparation, all within a reasonable time.5 For these reasons, the subject matter at issue is directly related to the interests of victims.

III.

Concerns of the victims concerning further adjournment 7. The Accused was first summoned by the Court twenty-seven months ago, on 8 March 2011, and was committed to trial over sixteen months ago, on 23

ICC-01/09-02/11-498, 3 October 2012, para. 71. [T]he victims' core interest in the determination of the facts, the identification of those responsible and the declaration of their responsibility is at the root of the well-established right to the truth for the victims of serious violations of human rights. Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case (Pre-Trial Chamber I, Single Judge), No. ICC-01/04-01/07-474, 13 May 2008, para. 32. See also Decision on victims' participation (Trial Chamber I), No. ICC-01/04-01/06-1119, 18 January 2008, para. 97: [] the general interests of the victims are very wide-ranging and include an interest in receiving reparations, an interest in being allowed to express their views and concerns, an interest in verifying particular facts and establishing the truth, an interest in protecting their dignity during the trial and ensuring their safety, and an interest in being recognised as victims in the case, among others. The crimes under the Chamber's jurisdiction, as international crimes, may have many and various consequences for victims, of a direct and an indirect nature. Against that background the Chamber will ensure that victims are provided appropriate access to justice within the context of the focus of the trial process, and it will bear in mind the wide-ranging particular needs and interests of individual victims and groups of victims.
4 5

No. ICC-01/09-02/11

4/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 5/12 CB T

January 2012. On 9 July 2012, Trial Chamber V ordered that the trial of the present case would commence on 11 April 2013.6 8. At meetings with victim participants in late January and early February 2013, the Legal Representative discussed the possibility of a delay in the commencement of trial, as well as other pertinent issues. The victims expressed, in the strongest terms, their opposition to any further delay in the commencement of trial; many made it clear that they considered that a start date of April 2013 was itself far too late. 9. On 7 March 2013, Trial Chamber V vacated the trial commencement date of 11 April 2013 and ordered instead that trial would commence on 9 July 2013.7 10. Members of the Legal Representatives field staff have recently consulted with a sample of 51 8 victims in order to ascertain their views on the Defence application to have the trial further adjourned until January 2014. 11. Of the 51 victims consulted, 48 (94%) expressed total opposition to any further delay in the commencement of trial; one agreed to a reasonable delay; one agreed to a delay convenient to the Defence provided that reparations are paid by the Accused before trial starts; and one agreed to a delay of not more than one month. 12. The Legal Representative respectfully sets forth below a summary of the principal views and concerns expressed by the 51 victims consulted in respect of the Accuseds application to have the trial start date adjourned until January 2014 :

ICC-01/09-01/11-440, p.8. ICC-01/09-02/11-677, p.7. 8 a/1203/10, a/8285/11, a/9280/11, a/8454/11, a/9213/11, a/9309/11, a/9398/11, a/9265/11, a/8613/11, a/8490/11, a/9251/11, a/9397/11, a/8691/11, a/9406/11, a/8531/11, a/8451/11, a/8501/11, a/8510/11, a/9108/11, a/8550/11, a/8578/11, a/8580/11, a/8609/11, a/8613/11, a/90787/11, a/9101/11, a/9103/11, a/9108/11, a/9408/11, a/9393/11, a/9219/11, a/8624/11, a/8619/11, a/9072/11, a/9335/11, a/9330/11.
6 7

a/9311/11, a/8614/11, a/8531/11, a/8799/11, a/9230/11,

a/9326/11, a/9213/11, a/8532/11, a/9066/11, a/9227/11,

a/9322/11, a/9256/11, a/8534/11, a/9074/11, a/9373/11,

No. ICC-01/09-02/11

5/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 6/12 CB T

a. Many victims are deeply frustrated at the slow pace of these proceedings, and expressed a growing loss of faith in the ICC, especially since the withdrawal of the charges against Mr Muthaura and the election of the Accused as President of Kenya. One victim said that justice is slowly fading away. b. Several victims expressed the view that they want to know the outcome of the case as soon as possible, in order to be able to move on with their lives. Several others cited, in the English language, the maxim justice delayed is justice denied. c. Several victims said that they consider the Accuseds application to be yet another step in an overall general strategy of delay. They believe that if the Trial Chamber agrees to postpone the trial start date until January 2014, the Accused will make a further application closer to January 2014 to have the trial date postponed to a date even further into the future. d. Many victims expressed the view that their sufferings are being overlooked in the debate regarding when trial should start. Several noted that the Accused is rich, at liberty, and appears to be enjoying his new trappings of power, while the victims languish in poverty and helplessness. Several expressed the view that, because the Accused is in power, he has the capability to endanger their lives and to interfere with witnesses. e. Many victims expressed deep scepticism regarding the true reasons underlying the Accuseds wish to have further time to prepare for trial. One victim specifically expressed the view that the Accused is seeking further time in order to interfere with witnesses, as occurred with the case against Mr Muthaura.

No. ICC-01/09-02/11

6/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 7/12 CB T

f. Some victims said that they believe that the Accused wants to have more time to further engineer political, diplomatic and other processes to stop the work of the ICC regarding the Kenya cases. One expressed the view, that, if the Accused was genuine about wanting to have his name cleared, he would have opposed the initiative at the African Union (AU) to stop the cases. Others expressed the view that they do not consider that the Accuseds declared wish to clear his name and to co-operate with the ICC is consistent with his efforts at the AU to have the ICC process against him terminated.

IV.

Request for adjournment must be assessed in light of the contemporaneous diplomatic campaign to terminate ICC jurisdiction over the present case 13. In respect of the final point made by the victims above, it is notable that the Accuseds application for a substantial adjournment to this Trial Chamber makes no reference whatsoever to the campaign presently being conducted at the highest international levels by the Government of Kenya, headed by the Accused, to terminate this Trial Chambers jurisdiction over this case. 14. Specifically, the Defence Observations make no reference to the statement submitted on 2 May 2013 by the Permanent Mission of the Republic of Kenya to the United Nations Security Council, requesting the Security Council to terminate the Kenya cases currently before the ICC.9 The accused William

On 3 May 2013, Mr Macharia Kamau, Ambassador Extraordinary and Plenipotentiary at the Permanent Mission of the Republic of Kenya to the United Nations, submitted to the United Nations Security Council a Statement on the Situation in Kenya ICC-01/09 and the International Criminal Court. The Permanent Mission of the Republic of Kenya requested the immediate termination of the case at the Hague without much further ado. The statement, which is widely available on the internet, was signed by Ambassador Kamau. A mechanism for the Security Council to terminate a case at the ICC appears nowhere in the Rome Statute, nor does such a power appear to flow from the Charter of the United Nations. The Common Legal Representative of victims is in possession of a copy of this letter should the Chamber wish to receive it.
9

No. ICC-01/09-02/11

7/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 8/12 CB T

Ruto and the Attorney General of Kenya have distanced themselves from that statement.10 15. However, it appears that the Accused has not yet publicly distanced himself from the statement. Given that the Accused is constitutionally required to ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries, 11 and that his Deputy President and Attorney General have distanced themselves from it, it is curious that the Accused has not done so. 16. The statement appears to represent the policy of the Government of Kenya,12 despite the fact that it contains several assertions which appear to be wholly at variance with the spirit and letter of the submissions provided to this Trial Chamber by the Government of Kenya on the status of its cooperation with the Court.13 17. The Trial Chamber might wish to request the Accused, in due course, to clarify his Governments policy regarding co-operation with the Court, especially in respect of the inconsistent positions taken by the Permanent Mission of the Republic of Kenya to the United Nations and by the Attorney General on this issue.
See Queries raised over envoys letter to UN, The Standard, 12 May 2013: His Excellency the Deputy President would like to dissociate himself with the application by Ambassador Macharia Kamau as it does not represent his desire. He was never consulted in the making of the application and not in the presentation. http://www.standardmedia.co.ke/?articleID=2000083468&story_title=Kenya:%20Who%20approved%2 0petition%20letter%20to%20halt%20ICC%20cases 11 Constitution of Kenya 2010, Article 132 (5). 12 See also Why I insist that ICC cases against Kenya leadership should be dropped, by Macharia Kamau, Ambassador Extraordinary and Plenipotentiary, Kenyas Mission to the United Nations, New York, in which he wrote: My recent communication to the UN Security Council requesting the cessation of weak cases against Kenyan officials by the International Criminal Court has caused considerable public commentary. What has been missing in the commentary is an understanding of the issue from the perspective of the Kenyan State. I was not making a defence of the ICC indictees, but instead was representing the interests of the State I serve. (http://www.nation.co.ke/oped/Opinion/ICC-cases-against-Kenya-leadership-should-be-dropped//440808/1858012/-/ii85p7/-/index.html) 13 ICC-01/09-02/11-713.
10

No. ICC-01/09-02/11

8/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 9/12 CB T

18. Furthermore, the Defence Application makes no reference to diplomatic efforts before the African Union to terminate the ICCs proceedings in the present case, which culminated in the recent AU Assemblys Decision on International Jurisdiction, Justice and the International Criminal Court.14 19. It is only reasonable and fair for the Trial Chamber to consider the merits of the Defences request for a January 2014 trial start date in the context of the contemporaneous high-profile political and diplomatic campaign by the Government of Kenya, headed by the Accused, to bring to an end the Trial Chambers jurisdiction over the present case. It is difficult to believe that Accuseds request for a further lengthy adjournment of the trial start date is wholly unrelated to that campaign.

V. A balance must be struck between the safety of witnesses and the need for the Defence to be given sufficient opportunity to properly investigate them 20. The Defence request for further time appears to rest on the assumption that the Defence must have finished its analysis of every prior statement of every prosecution witness, as well as all its investigations into those witnesses, before the commencement of trial.15 21. However, it is respectfully submitted that the critical issue is whether the Defence has sufficient time to prepare for cross-examination before the commencement of the testimony of each witness, rather than before the commencement of trial. It is a matter of common experience that the crossexamining party will usually prepare the cross-examination of witnesses seriatim, during the opposing partys case, in the order in which the witnesses

Assembly/AU/13(XXI). Supra footnote 2, Defence Observations, paras. 7, 11 (the Defence requires approximately six months from the date of final unredacted disclosure by the Prosecution in order to prepare fully for trial), 12 and 28-31.
14 15

No. ICC-01/09-02/11

9/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 10/12 CB T

appear, rather than prepare all the cross-examinations at once before trial has even begun. 22. Further, the interest of justice in permitting the Defence sufficient time to properly investigate each witness must be balanced not only against the interest of the victims and the international community at large in having the trial start as soon as possible, but also against the interest of minimizing the potential for interference with highly sensitive witnesses. This is particularly so in a case in which there has been an unusually high level of witness intimidation. 23. While it is undoubtedly desirable that the entirety of the prosecutions evidence should be disclosed to the defence prior to the start of trial, it is widely accepted, at the Court and at the ad hoc tribunals, that certain flexibility must be permitted in respect of particularly sensitive insider witnesses where there is a real risk of intimidation. 24. For example, both the ICTR and the ICTY have permitted the testimony of many sensitive witnesses whose written statements and identities have been disclosed to the defence many months after the start date of trial, in order to preserve the safety of the witnesses in question. As was noted in the Karadzic case at the ICTY: The period of time before which the witnesss identity must be disclosed to the accused depends on the circumstances of each case and involves striking a balance between the safety of the witnesses and the need for the Defence to be given sufficient opportunity to properly investigate them. In making that assessment, Chambers have recognised that the greater the length of time between the disclosure of identity and the time when the witness is to give evidence, the greater the potential for interference with that witness. In applying this standard, there have been many instances where, when exceptional circumstances have been shown, [] the disclosure of a particularly sensitive witnesss identity has been

No. ICC-01/09-02/11

10/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 11/12 CB T

delayed to a specific number of days before their testimony, which can post-date the commencement of trial.16 VI. The Trial Chamber can cure unfair prejudice with in-trial mechanisms 25. The Defence has already had a very considerable period, beginning twentyseven months ago when the Accused was first summoned by the Court, in which to prepare the broad outlines of the overall defence strategy. It has had enough time in which to form a detailed understanding of the Prosecutions case. 26. Given that the pre-trial period of the present case has taken place in a context of unprecedented levels of witness intimidation, it would be appropriate to order the trial to commence as soon as possible. 27. If, at the scheduled start date of trial, the Prosecution has not been able to disclose the identities of any of the remaining four prosecution witnesses whose evidence remains undisclosed to the Defence due to well-founded security concerns, the proper remedy would not be to further delay the start of the trial. 28. Rather, the proper remedy would be to postpone the testimony of any witnesses whose written evidence is disclosed late to the Defence due to wellfounded security concerns. Any consideration of an adjournment in the trial start date should take into account the fact that the Trial Chamber can invite the Prosecution to call its witnesses in a sequence which will provide the Defence with a fair opportunity to prepare for cross-examination of such witnesses. 29. Additionally, the Defence will be at liberty throughout the trial to request anyone of an array of remedies to deal with any unfair prejudice which might

Prosecutor v Karadzic, Case No. IT-95-5/18-T, Decision on accuseds sixty-sixth disclosure violation motion, 8 February 2012, para. 19. Internal citations omitted.
16

No. ICC-01/09-02/11

11/12

7 June 2013

ICC-01/09-02/11-752

07-06-2013 12/12 CB T

arise. For example, the Defence might request the Trial Chamber to postpone the direct examination or cross-examination of a certain witnesses, or to order a short adjournment during trial, in order to enable the Defence to investigate matters arising from oral evidence at trial which it could not reasonably have been expected to have foreseen. 30. Further, at the close of the Prosecutions case, the Defence will have the opportunity to request any adjournment which is reasonable prior to the commencement of the defence case. 31. The Trial Chamber should make full use of these in-trial mechanisms to minimise any unfair prejudice to the Defence during trial, and should order that this trial commences as soon as practicable.

VII.

Conclusion

32. On behalf of the victims, the Common Legal Representative requests the Trial Chamber to ensure that any adjournment granted is strictly limited to what is absolutely necessary, and to order the commencement of trial as soon as practicable.

Respectfully submitted,

Fergal Gaynor Common Legal Representative for Victims

Dated this 7th day of June 2013 At Nairobi, Kenya

No. ICC-01/09-02/11

12/12

7 June 2013