The Women's Initiatives for Gender Justice is an international women's human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and through domestic mechanisms, including peace negotiations and justice processes. We work with women most affected by the conflict situations under investigation by the ICC.

The Women's Initiatives for Gender Justice works in Uganda, the Democratic Republic of the Congo, Sudan, the Central African Republic, Kenya, Libya and Kyrgyzstan.

Offices
■ Cairo, Egypt
■ Kampala and Kitgum, Uganda
■ The Hague, the Netherlands

Dear Friends,

Welcome to the August 2013 issue of Legal Eye on the ICC, a regular eLetter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has eight Situations under investigation: Uganda, the Democratic Republic of the Congo (DRC), Darfur (Sudan), the Central African Republic (CAR), Kenya, Libya, Côte d'Ivoire and Mali.

In addition to the Legal Eye on the ICC, we also produce Women's Voices, a regular eLetter providing updates and analysis on political developments, the pursuit of justice and accountability, the participation of women in peace talks and reconciliation efforts from the perspective of women's rights activists within armed conflict situations, specifically those countries under investigation by the ICC.

More information about the work of the Women's Initiatives for Gender Justice and previous issues of Women's Voices and Legal Eye on the ICC can be found on our website at www.iccwomen.org.

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Kenya :: Trial Chamber V denies Kenyatta's application to send case back to Pre-Trial Chamber

On 5 February 2013, the Defence for Uhuru Muigai Kenyatta (Kenyatta) filed an application to the Trial Chamber pursuant to Article 64(4) of the Rome Statute[1] to refer the 'preliminary issue' of the confirmation of charges decision to the Pre-Trial Chamber for reconsideration (Article 64(4) Application).[2] On 26 April 2013, Trial Chamber V[3] issued a decision denying the Defence request, while reprimanding the Prosecution 'for its failure to timely disclose the affidavit to the Defence' and directing the Prosecution to conduct a review of its case file, and certify by 21 May 2013 that it has reviewed all materials in its possession.[4] The Chamber's decision denying the Defence application, as well as the separate and concurring opinions, are discussed in greater detail below.

Background

Kenyatta, initially charged jointly with Mohammed Hussein Ali (Ali) and Francis Kirimi Muthaura (Muthaura), is one of six suspects charged by the ICC in the context of its investigation in the Kenya Situation. This Situation has been under investigation by the ICC since March 2010, when Pre-Trial Chamber II authorised Prosecutor Moreno-Ocampo's request to open an investigation pursuant to Article 15 of the Rome Statute, into the 2007/2008 post-election violence in Kenya.[5] In March 2011, having received an application from the Office of the Prosecutor in December 2010, the Pre-Trial Chamber issued summonses to appear for six suspects in two cases. The first case initially involved three suspects who at the time of the alleged crimes were members of the Orange Democratic Movement, namely William Samoei Ruto (Ruto), Joshua Arap Sang (Sang) and Henry Kiprono Kosgey (Kosgey). The second case initially involved three suspects who, at the time of the alleged crimes, were members of the Party of National Unity, namely Muthaura, Kenyatta and Ali. In January 2012, Pre-Trial Chamber II confirmed charges against Ruto, Sang, Muthaura and Kenyatta, but declined to confirm the charges against Kosgey and Ali.[6]

The Pre-Trial Chamber confirmed charges against Muthaura and Kenyatta, as indirect co-perpetrators pursuant to Article 25(3)(a), for the crimes against humanity of murder, deportation or forcible transfer of population, rape, persecution and other inhumane acts.[7] However, as described in more detail in the June 2013 issue of Legal Eye on the ICC, in March 2013, the Prosecutor withdrew the charges against Muthaura.[8] The Pre-Trial Chamber confirmed charges against Ruto, as indirect co-perpetrator pursuant to Article 25(3)(a), and Sang as having otherwise contributed to the commission of crimes within the meaning of Article 25(3)(d) for three counts of crimes against humanity: murder, deportation or forcible transfer of population and persecution.[9]

A number of reports from international organisations, Kenyan national authorities and civil society groups regarding the commission of sexual violence in the context of the post-election violence were included in the material presented by the Prosecutor in the request to open an investigation.[10] The Prosecutor sought charges for gender-based crimes in one of the two Kenya cases, namely in the case against Muthaura and Kenyatta. Along with charges of rape, the Prosecution had brought evidence of forcible circumcision and penile amputation to support the charge of 'other forms of sexual violence'. However, in both the decision issuing the summons to appear as well as in the decision on the confirmation of charges, the Pre-Trial Chamber recharacterised this evidence as 'other inhumane acts', on the grounds that, in the Chamber's view, 'the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision and penile amputation visited upon Luo men'.[11] In addition, the Chamber stated that 'not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence'.[12] As noted by the Women's Initiatives for Gender Justice at the time of the decision, in reclassifying acts of forcible circumcision and penile amputation as other inhumane acts, the Pre-Trial Chamber appeared to have overlooked the broader context of these crimes, as well as the intention and purpose of the acts:

What makes these acts a form of sexual violence is the force and the coercive environment, as well as the intention and purpose of the acts. […] The forced circumcision of Luo men has both political and ethnic significance in Kenya and therefore has a specific meaning. In this instance, it was intended as an expression of political and ethnic domination by one group over the other and was intended to diminish the cultural identity of Luo men.[13]

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Trial Chamber's decision on Article 64(4) Application

In its application of February 2013, the Defence for Kenyatta argued that in order to ensure the fair and effective functioning of the proceedings and maintain the integrity of the Court it was necessary for the Trial Chamber to refer the confirmation decision back to the Pre-Trial Chamber for reconsideration.[14] In support of its request, the Defence cited a variety of reasons, discussed further below, including the Prosecution's failure to disclose a potentially exculpatory affidavit.

In its decision of 26 April 2013 denying the application, the Trial Chamber noted that, whereas in its initial Article 64(4) Application the Defence had only requested a referral of the confirmation decision to the Pre-Trial Chamber for reconsideration, in later filings the Defence had 'broadened' the relief it was requesting.[15] Accordingly, the Chamber observed that the Defence's primary request was for an order that the proceedings against Kenyatta be terminated, whereas in the alternative the Defence had requested that the Chamber order a stay of the proceedings or refer the confirmation decision back to the Pre-Trial Chamber for reconsideration.[16] Additionally, the Chamber noted that the Defence had requested that the Prosecution be reprimanded as a consequence of its failure to disclose exculpatory evidence.[17]

The Chamber recalled that, in support of its requests, the Defence had raised 'four separate, but interrelated' issues:

(1) 'The Prosecution's conduct with respect to the non-disclosure, prior to the confirmation hearing, of Witness 4's affidavit and other materials (Issue 1)';

(2) 'The validity of the confirmation decision as a result of 'deficiencies' in the Prosecution's evidence, including the alleged lack of credibility of witnesses (Issue 2)';

(3) 'Alleged 'new and radically altered allegations' against the accused as a result of the Prosecution's removal of Witness 4 from its witness list and its reliance on a substantial body of new evidence collected after the confirmation hearing (Issue 3)'; and

(4) 'The impact of the withdrawal of the charges against Muthaura on the case against Kenyatta (Issue 4)'[18]

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Issue 1: Non-disclosure of Witness 4's affidavit

As described in more detail in the June 2013 issue of Legal Eye on the ICC, Witness 4, an important Prosecution witness in the case against Muthaura and Kenyatta, 'recanted a significant part of his incriminating evidence after the confirmation decision was issued, and who admitted accepting bribes from persons allegedly holding themselves out as representatives of both accused'.[19] The Defence had argued that the confirmation decision was manifestly unsound due to the Prosecution's failure to disclose the affidavit.[20]

The Chamber observed that it was uncontested between the parties that Witness 4's affidavit, which was received by the Prosecution on 27 September 2010, but not disclosed to the Defence until after the confirmation decision, on 19 October 2012, contains information which 'may have affected the credibility of the Prosecution's evidence and, as such, should have been disclosed in full or in part before the confirmation hearing'.[21] The Chamber further noted that it was uncontested between the parties that the majority of the additional materials related to the Prosecution's initial contact with Witness 4, which were not disclosed to the Defence until 11 April 2013, should have been disclosed to the Defence prior to the confirmation hearing pursuant to Article 67(2) of the Statute.[22]

Although the Chamber did not find reasons to believe that the Defence was right in arguing that 'members of the Prosecution purposely tried to withhold the Affidavit from the Defence until after the Confirmation Decision', the Chamber noted inter alia that 'it is clear from the parties' submissions that the Prosecution made a grave mistake when it wrongly classified the Affidavit',[23] and that the mistake 'occurred as a result of a deficient review system in place (at the time) within the Prosecution, where – apparently – persons without knowledge of the overall state of the evidence against the accused, or at a minimum the overall evidence provided by the witness concerned, performed a review of the Affidavit'.[24] Accordingly, the Chamber found 'the Prosecution's conduct in failing to disclose the Affidavit and other documents related to Witness 4 to be a cause for serious concern, both in terms of the integrity of the proceedings and the rights of [Kenyatta]'.[25]

However, the Chamber stressed that Witness 4 is no longer a Prosecution witness, and that the Defence will have 'an opportunity to challenge the credibility of other evidence relied upon by the Prosecution at confirmation in corroboration of Witness 4's evidence'.[26] The Chamber also underscored that 'there is no conclusive information of bad faith on the part of the Prosecution in failing to disclose the document', as had been argued by the Defence.[27] For these reasons, the Chamber held that it would be 'disproportionate to terminate or stay the proceedings as a result of the non-disclosure'. The Chamber also did not find it 'necessary to refer this issue to the Pre-Trial Chamber pursuant to Article 64(4) given that the issue came to light during the period when the Chamber was responsible for the conduct of the proceedings and is fully competent to resolve it'.[28] Instead, the Chamber decided that the 'appropriate remedy is for the Chamber to reprimand the Prosecution for its conduct and to require it to conduct a complete review of its case file and certify before this Chamber that it has done so in order to ensure that no other materials in its possession that ought to have been disclosed to the Defence, are left undisclosed'. In addition, the Chamber stressed that 'given that the failure to disclose the Affidavit appears to have resulted from a deficient internal review procedure, the Prosecution can reasonably be expected, if it has not already done so, to make appropriate changes to its internal procedures'.[29]

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Issue 2: Validity of the confirmation decision

With respect to Issue 2, the Defence had argued that 'the evidence that remains, now that the Prosecution no longer seeks to rely on Witness 4, does not meet the required threshold to establish that Kenyatta has committed the crimes as charged'.[30]

In the Chamber's view, the Defence submissions had focused on the evidence relied upon by the Pre-Trial Chamber in confirming the charges against the accused, including an allegation that the Pre-Trial Chamber had 'fail[ed] to assess properly the evidence'.[31] Having observed that such submissions constitute an 'impermissible attempt to have the Chamber effectively entertain an appeal of the Confirmation Decision' whereby all the evidence relied on in the confirmation decision be reconsidered, the Chamber emphasised that only the Pre-Trial Chamber can entertain a request for leave to appeal the confirmation decision and it is only the Appeals Chamber that can hear an appeal of the confirmation decision.[32]

The Chamber further stated that it 'is not persuaded that the non-disclosure of the Affidavit materially impacted the confirmation process', thus agreeing with the Prosecution and the Legal Representative that 'the factual arguments on the Affidavit and screening notes of Witness 4 and Witness 11 and their credibility relied on by the Defence, rather than focusing on the potential impact of the Affidavit, for the most part amount to an impermissible challenge to the evidentiary findings and methods of assessment of the Pre-Trial Chamber as a whole'.[33] Accordingly, the Chamber was 'not convinced that this issue provides a basis to terminate or stay the proceedings', nor was it necessary for the Chamber's 'fair and effective functioning" to refer this issue back to the Pre-Trial Chamber for reconsideration'.[34]

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Issue 3: Alleged new and altered allegations

With respect to Issue 3, the Defence had submitted that the Prosecution's case against Kenyatta had fundamentally changed following the confirmation of charges decision due to 'the inclusion of new or radically altered post confirmation allegations' and evidence disclosed by the Prosecution in the weeks leading up to the commencement of trial.[35]

In this regard, the Chamber observed that the Prosecution is 'not necessarily required to rely on entirely the same evidence at trial as it did at the confirmation of charges stage', and there may be 'good reasons for the Prosecution to substitute, at trial, the evidence it used during the confirmation hearing to establish the charges' with other evidence, as long as this other evidence pertains to the same charges.[36] The Chamber further noted that it was not clear whether the Defence submissions referred to new facts and circumstances, 'or merely to new evidence in support of the facts and circumstances underlying the charges as outlined in the Updated [Document Containing the Charges (DCC)]'.[37] Assuming that the first was the case, the Chamber disagreed with the Defence's submission that the Prosecution had substituted key events with other events not confirmed by the Pre-Trial Chamber, and thus concluded that 'none of the allegations to which the Defence points exceed the facts and circumstances described in the confirmed charges and reflected in the Updated DCC'.[38]

Accordingly, the Chamber concluded that 'the deficiencies complained of do not meet the requirements for a termination or stay of proceedings as they can and will be resolved during trial' and rejected that these 'post-confirmation developments could justify a referral of the case back to the Pre-Trial Chamber for reconsideration', thus agreeing with the Prosecution and Legal Representative that 'changes in the evidence (as opposed to the charges) between the confirmation of charges and the trial stages cannot be a basis for seeking a new confirmation process'.[39]

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Issue 4: Impact of withdrawal of the charges against Muthaura on Kenyatta's case

With respect to Issue 4, the Defence had submitted that the Prosecution's decision to withdraw all charges against Muthaura in March 2013, discussed in more detail in the June 2013 issue of Legal Eye on the ICC, 'destroys the factual and legal matrix of the “common plan” as confirmed by the Pre-Trial Chamber because the Prosecution had alleged that Kenyatta and Muthaura were the 'two sole principal perpetrators who devised the common plan'.[40]

However, the Chamber noted that while the Defence was given ample opportunity to make legal submissions on the issue, 'it did not make any substantial submissions on the legal consequences of the withdrawal during the status conference or in its subsequent filings'.[41]

The Chamber nonetheless examined the issue, and observed that the questions of what level of contribution is necessary from co-perpetrators, the evidentiary standard for the evidence related to co-perpetrators who are not charged, and other issues relating to the alleged mode of liability of Kenyatta as an indirect co-perpetrator 'are matters for trial'.[42] Further, the Chamber concluded that, at this stage, it was sufficient to observe that it is 'not bound by the interpretation of Article 25(3)(a) as applied by the Pre-Trial Chamber in the Confirmation Decision'.[43]

The Chamber did not grant the Defence request and decided that, at this stage, it is 'necessary that the Prosecution provide an updated version of the document containing the charges, which reflects the withdrawal of the charges against Mr Muthaura'.[44] Finally, as described below, the Chamber invited the Prosecution to update its pre-trial brief to reflect these changes by 6 May 2013.[45]

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The Chamber's observations on the scope of post-confirmation investigation

In addition to the four issues discussed above, the Trial Chamber remarked upon the concerns expressed by the Defence with respect to the quantity of evidence that was collected by the Prosecution post-confirmation. Although the Chamber emphasised the post-confirmation investigations have 'not altered the charges against the accused, or undermined the integrity of the proceedings to such an extent that a fair trial is no longer possible', it expressed concern about the 'considerable volume of evidence collected by the Prosecution post-confirmation and the delays in disclosing all relevant evidence to the Defence'.[46] In this regard, the Chamber stated that while it did not consider that the Statute 'prohibits the Prosecution from conducting post-confirmation investigations, it is mindful of the Appeals Chamber's recent statement in Mbarushimana that the investigation should be “largely completed” by the Confirmation Hearing'.[47]

The Chamber held that in so far as the Prosecution continues post-confirmation investigations for the purpose of collecting evidence which it 'could reasonably have been expected to have collected prior to confirmation', a Trial Chamber 'would need to determine the appropriate remedy based on the circumstances of the case', including possible 'exclusion of all or part of the evidence so obtained as a remedy for the Prosecution's conduct as well as to allay any potential prejudice caused to the accused'.[48] While holding in the present case that the Prosecution 'should have conducted a more thorough investigation prior to confirmation in accordance with its statutory obligations under Article 54(1)(a) of the Statute', the majority indicated that the Prosecution may have been guided by the Appeals Chamber's earlier jurisprudence, particularly a decision by the Appeals Chamber in the Lubanga case in October 2006,[49] 'without the benefit of its subsequent elaboration in Mbarushimana, which intervened only after the confirmation hearing in the present case'.[50]

The Chamber further observed that the Prosecution explained its continued investigations post-confirmation on the basis of the general security situation in Kenya. While the Chamber held that this explanation 'lack[s] the degree of specificity which would have been expected, [it] accepts that the circumstances under which the Prosecution was operating were difficult and may have affected its ability to conduct a fuller investigation prior to confirmation'.[51] As a result, the Chamber found that the 'most appropriate remedy for the prejudice caused to the accused consists of providing the Defence with further time to conduct its investigations and to fully prepare for trial in light of the new evidence'.[52]

The Chamber maintained that three months after the date of full disclosure provides adequate time to prepare and should thus be taken as guidance as to the time needed, but 'in light of the Chamber's above findings', it decided to seek the Defence's views on time needed for preparation before deciding on the final trial date (while meanwhile retaining the current date for trial of 9 July 2013).[53]

In sum, having elaborated on the standards for granting the various reliefs requested by the Defence,[54] the Chamber reprimanded the Prosecution for its failure to timely disclose the affidavit to the Defence and directed the Prosecution to conduct a review of its case file, and certify by 21 May 2013 that it has reviewed all materials in its possession. Further, the Chamber ordered the Prosecution to submit an updated version of the DCC by 6 May 2013, and invited the Prosecution to submit an updated pre-trial brief also by 6 May 2013. Moreover, reserving its decision as to the granting of additional time to the Defence to prepare for trial, the Chamber invited the Defence to submit observations on this issue by 13 May 2013. With respect to the remaining issues the Chamber denied the Article 64(4) Application. The updated document containing the charges and pre-trial brief were both filed by the Prosecution on 6 May 2013.[55]

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Judge Ozaki's separate opinion

Judge Ozaki issued a separate opinion, fully concurring with the final outcome of the Chamber's decision on the Defence requests, but disagreeing with her colleagues that the Defence's challenge to the validity of the confirmation decision (Issue 2) could amount to a 'preliminary issue' within the meaning of Article 64(4) of the Statute.[56]

Specifically, Judge Ozaki held that it would 'never be proper for the Chamber to refer the case back to the Pre-Trial Chamber pursuant to Article 64(4) of the Statute for the purpose of reviewing the validity of the charges', as a Trial Chamber 'does not have the competence to refer back to the Pre-Trial Chamber an issue over which it has no competence to begin with'.[57] Accordingly, in the case of 'a finding by the Chamber that there were serious substantive deficiencies in the Confirmation Decision which may render the charges flawed or invalid, the appropriate course would be for the Prosecution to be invited to withdraw or seek amendment of the charges pursuant to Article 61(9) of the Statute'.[58] Judge Ozaki found that, if the Prosecution were to refuse to do so, the trial would continue, or, if the Chamber were to find that the continuation of the trial on the basis of such charges would violate the fundamental rights of the accused so that a fair trial becomes impossible, 'it would rely on its general power and obligation as set out in Article 64(2) of the Statute, and terminate or stay the proceedings'.[59]

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Judge Van den Wyngaert's concurring opinion

Judge Van den Wyngaert fully concurred with the elucidation in the decision of the Prosecution's rights and obligations under Article 54(1)(a) of the Statute,[60] but 'would have gone further' than her colleagues with respect to the 'serious questions as to whether the Prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation'.[61]

Specifically, Judge Van den Wyngaert held that 'the facts show that the Prosecution had not complied with its obligations under Article 54(1)(a) at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this Chamber started'.[62] The Judge noted that the Prosecution 'offer[ed] no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation'.[63] Moreover, Judge Van den Wyngaert held that 'there can be no excuse for the Prosecution's negligent attitude towards verifying the trustworthiness of its evidence'.[64] The Judge noted in particular the incidents relating to Witness 4, which she saw as 'clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution's case' and which revealed 'grave problems in the Prosecution's system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff'.[65]

In addition to finding that the Prosecution failed to properly investigate the case against the accused prior to confirmation in accordance with its statutory obligations under Article 54(1)(a) of the Statute, Judge Van den Wyngaert held that the Prosecution has 'violated its obligation under article 54(1)(c) of the Statute to fully respect the rights of persons arising under the Statute'.[66]

While Judge Van den Wyngaert held that the appropriate remedy for the Prosecution's 'failure to fulfil its obligations under Article 54(1)(a)' would be to exclude all or part of the evidence obtained by way of 'excessive and unwarranted post-confirmation investigation', she agreed with her colleagues that there are mitigating circumstances in this case which 'lessen the need to resort to such a drastic measure'.[67]

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Judge Eboe-Osuji's concurring separate opinion

Judge Eboe-Osuji concurred with the Trial Chamber's decision to reject the Defence request to send the case back to the Pre-Trial Chamber and with the rejection of the alternative request to terminate or stay the case. He also agreed that the only appropriate remedies with respect to the present litigation involved: '(i) admonition of the Prosecution for the manner that they handled one aspect of this case — the disclosures concerning one prosecution witness whose evidence was used at the confirmation proceedings — in the manner that understandably triggered the anxiety on the part of the Defence; and (ii) grant more preparation time to the Defence, as a consequence of post-confirmation investigations'.[68] However, Judge Eboe-Osuji wrote separately 'to amplify more fully' certain aspects of the decision with which he concurred, as well as to explain his 'inability' to join the reasoning regarding post-confirmation investigations.[69]

Addressing the Defence submission that the Pre-Trial Chamber had based the confirmation decision upon 'fraudulent evidence', and finding that 'the allegation of bad faith and fraud was not made out in the present instance', Judge Eboe-Osuji underscored, inter alia, that this 'affords the Prosecution no refuge from censure from what may be, in other circumstances, a grave error indeed'.[70] In particular, he found that the concerns of the Defence with respect to 'the extent to which the disclosure obligations of the Prosecution have been fulfilled' were justified.[71] While Judge Eboe-Osuji noted that 'more remains to be done to restore confidence in full in the matter of the Prosecution's disclosure obligations', he observed that it was 'encouraging that the Prosecution continued to reveal and admit lapses in their disclosure compliance as they discovered them'.[72] The Judge further stated his satisfaction with the Prosecution having withdrawn on its own initiative the charges against Muthaura 'on grounds of insufficient evidence or the prospect of it'.[73]

With respect to the alleged violations of the rights of the accused, Judge Eboe-Osuji noted that he was 'not convinced that the mistaken failure to disclose the Asylum Affidavit itself has been established as having already violated the rights of the accused in a manner that caused material prejudice or already undermined the integrity of the judicial process'.[74]

Addressing the Defence request to refer the confirmation decision back to the Pre-Trial Chamber due to the issues surrounding Witness 4, Judge Eboe-Osuji concluded that doing so would not be in the interest of 'public policy', nor would it be necessary to avoid a 'miscarriage of justice'.[75] Among others, he found that 'it will be disastrous for the administration of justice in this Court, to permit the development of practice, besides the permitted appeals process, according to which confirmation decisions are reopened because a party has found legal arguments that it can make against the findings of the Pre-Trial Chamber, in the manner here now engaged'.[76]

With respect to the Defence complaint concerning the scope of post-confirmation investigations, Judge Eboe-Osuji found that his colleagues reasoning amounted 'largely to the beginnings of drips of dicta that will presently undermine the Prosecutor's confidence in conducting post-confirmation investigations when she sees the need; while possibly crystallising in the future into a hard limitation that will forbid post-confirmation investigations, as a general rule, permitting them only in “exceptional circumstances”'.[77]

In terms of the legal basis for the Chamber's findings, Judge Eboe-Osuji disagreed with his colleagues that the controlling law is signalled by the Appeals Chamber's decision in Mbarushimana, according to which the 'investigation should largely be completed at the stage of the confirmation of charges hearing'.[78] Instead, he held that the applicable law could be identified in the Appeals Chamber's rejection in the Lubanga case of the Pre-Trial Chamber's finding that, barring exceptional circumstances, the investigation must be brought to an end by the time the confirmation hearing starts. Judge Eboe-Osuji emphasised that in this case the Appeals Chamber had clarified that 'the Prosecutor must be allowed to continue his investigation beyond the confirmation hearing, if this is necessary in order to establish the truth'.[79] Consequently, Judge Eboe-Osuji concluded that the right remedy will 'seldom be to forbid the use of the further evidence resulting from the impugned investigation, where no clear prejudice to the Defence has been shown such as is beyond reasonable cure by the grant of more time'.[80]

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Footnotes

1   Article 64(4) provides that the Trial Chamber ‘may, if necessary for its effective and fair functioning, refer preliminary issues to the Pre-Trial Chamber or, if necessary, to another available judge of the Pre-Trial Division’.

2   On 23 January 2012, Pre-Trial Chamber II issued the confirmation of charges decision in the case against Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, one of two cases arising out of the Kenya Situation. In the decision, the Pre-Trial Chamber confirmed charges of crimes against humanity for Muthaura and Kenyatta. The Chamber declined to confirm charges against Ali. For a more detailed discussion of the decision on the confirmation of charges, see Gender Report Card 2012, p 128-130. Subsequent to the issuing of the confirmation of charges decision, and as reported in the previous edition of Legal Eye on the ICC, in March 2013, the Office of the Prosecutor withdrew all charges against Muthaura. See further Legal Eye on the ICC, June 2013, available here.

3   At the time of this decision, Trial Chamber V was composed of Presiding Judge Kuniko Ozaki (Japan), Judge Chile Eboe-Osuji (Nigeria) and Judge Christine Van den Wyngaert (Belgium). As described in more detail in the May 2013 issue of Legal Eye on the ICC, on 26 April 2013, Judge Van den Wyngaert was replaced by Judge Robert Fremr (Czech Republic). Subsequently, on 21 May 2013, the Presidency dissolved Trial Chamber V and reconstitute Trial Chamber V(b), to deal with the case against Muthaura, composed of Presiding Judge Kuniko Ozaki, Judge Robert Fremr, and Judge Chile Eboe-Osuji.

4   ICC-01/09-02/11-728.

5   ICC-01/09-19.

6   ICC-01/09-01/11-373; ICC-01/09-02/11-382-Red. For a more detailed analysis of the decisions on the confirmation of charges, see Gender Report Card 2012, p 128-130.

7   Pursuant to Articles 7(i)(a); 7(i)(d); 7(i)(g); 7(i)(h) and 7(i)(k);.

8   The Prosecution initially notified the Trial Chamber of its decision in a status conference and in writing, because it argued that there is a legal basis for the Prosecution to use its discretion to withdraw charges and notify the Chamber of the decision. In the alternative, the Prosecution submitted that, should the Chamber find that leave must be granted to withdraw the charges, the fact that there is insufficient evidence to establish a conviction would warrant the granting of leave. In a decision on 18 March, the Trial Chamber, pursuant to Article 64(2), granted the request. See ICC-01/09-02/11-T-23-ENG; ICC-01/09-02/11-687; ICC-01/09-02/11-696.

9   Pursuant to Articles 7(i)(a); 7(i)(d); and 7(i)(h), Pre-Trial Chamber II had found that there are no substantial grounds to believe that Sang is responsible as an indirect co-perpetrator (Article 25(3)(a)), as charged by the Prosecution, and instead charges were confirmed under Article 25(3)(d). For a more detailed analysis of the confirmation of charges decisions in the two cases see Gender Report Card 2012, p 128-130.

10   See Gender Report Card 2010, p 122-124.
11   ICC-01/09-02/11-382-Red, para 266.
12   ICC-01/09-02/11-382-Red, para 265. For a more detailed analysis of the charges for gender-based crimes in this case see Gender Report Card 2012, p 128-130.
13   Brigid Inder, Executive Director, Women’s Initiatives for Gender Justice in ‘Kenya: Plea to ICC over forced male circumcision’, IRIN News, 25 April 2011, available here, last visited on 10 July 2013; See also ‘In Kenya, Forced Male Circumcision and a Struggle for Justice’, The Atlantic, 1 August 2011, available here, last visited on 10 July 2013.
14   ICC-01/09-02/11-622.
15   ICC-01/09-02/11-728, para 67.
16   ICC-01/09-02/11-728, para 67.
17   ICC-01/09-02/11-728, para 68.
18   ICC-01/09-02/11-728, para 21.
19   ICC-01/09-02/11-687, para 11.
20   ICC-01/09-02/11-706. The affidavit in question, not a non-ICC statement, was ‘a 28-page affidavit, prepared for asylum proceedings in another country’. ICC-01/09-02/11-664-Red2, para 33.
21   ICC-01/09-02/11-728, para 24.
22   ICC-01/09-02/11-728, para 25.
23   The Chamber recalled the Prosecution’s obligation under Articles 54(1) and 67(2) of the Rome Statute to disclose potentially exonerating evidence in its possession to the Defence as soon as practicable, and underscored that such potentially exonerating evidence includes information that ‘may affect the credibility of prosecution evidence’. ICC-01/09-02/11-728, para 92.
24   ICC-01/09-02/11-728, paras 93-94.
25   ICC-01/09-02/11-728, para 95.
26   ICC-01/09-01/11-728, para 96.
27   ICC-01/09-01/11-728, para 96.
28   ICC-01/09-02/11-728, para 97.
29   ICC-01/09-02/11-728, para 97.
30   ICC-01/09-02/ll-707-Corr-Red.
31   ICC-01/09-02/11-728, para 98.
32   ICC-01/09-02/11-728, paras 99-100.
33   ICC-01/09-02/11-728, para 101.
34   ICC-01/09-02/11-728, para 104. Judge Ozaki did not join the last part of the reasoning as explained in her separate opinion discussed further below.
35   ICC-01/09-02/11-655-Corr, para 11.
36   ICC-01/09-02/11-728, para 105.
37   ICC-01/09-02/11-728, para 106.
38   ICC-01/09-02/11-728, paras 108-110.
39   ICC-01/09-02/11-728, paras 110-111.
40   Emphasis in original. ICC-01/09-02/11-707-Corr-Red, para 16.
41   ICC-01/09-02/11-728, para 113.
42   ICC-01/09-02/11-728, para 114.
43   ICC-01/09-02/11-728, para 114.
44   The Chamber also held that the Prosecution must include the necessary changes that follow from the Pre-Trial Chamber's decision of 21 March 2013 granting the Prosecution's request to insert the allegation that gunshots were the cause of some of the alleged killings in Naivasha. See further ICC-01/09-02/11-700-Corr.
45   ICC-01/09-02/11-728, paras 115-116.
46   ICC-01/09-02/11-728, paras 117-118.
47   ICC-01/09-02/11-728, para 118.
48   ICC-01/09-02/11-728, para 121.
49   In this decision, the Appeals Chamber held that the Prosecution’s investigation does not have to stop before the confirmation hearing. In particular, the Appeals Chamber held that ‘limiting the right of the Prosecutor to investigate other alleged crimes of the suspect would conflict with article 61 (9) of the Statute’ and that ‘it must be possible for the Prosecutor to continue his investigation in respect of crimes that are not covered by the document containing the charges’. ICC-01/04-01/06-568, paras 51-52.
50   ICC-01/09-02/11-728, paras 123-124. Judge Van den Wyngaert appended a separate concurring opinion, which is discussed further below, with additional views on post-confirmation investigations.
51   ICC-01/09-02/11-728, para 124.
52   ICC-01/09-02/11-728, paras 124-125.
53   ICC-01/09-02/11-728, paras 127-128.
54   With respect to a termination or stay of proceedings, the Chamber observed that although the Statute does not expressly provide for either a termination or stay of proceedings, both remedies are in principle available, but according to the Court’s jurisprudence only in exceptional circumstances, meaning that ‘the Defence has to meet a high threshold’ to establish grounds for a termination or stay of proceedings’. With respect to a referral to the Pre-Trial Chamber, the Chamber accepted that ‘the question of the validity of the Confirmation Decision amounts to a ‘preliminary issue’ in the relevant sense’, but concluded that ‘only if it is self-evident that no reasonable Pre-Trial Chamber could have come to the same conclusion, had it been adverted to the Affidavit, that the Chamber could consider it necessary for its ‘effective and fair functioning’ to refer the Confirmation Decision back to the Pre-Trial Chamber for reconsideration’. With respect to a reprimand of the Prosecution, the Chamber noted that the authority to issue a reprimand and warning for failure to identify and disclosure of materials which may affect the credibility of Prosecution evidence, whilst not expressly provided for in the statutory framework of the Court, falls squarely within the Chamber’s broad discretionary powers set out in Articles 64(2) and 64(6)(f), and that it considers it ‘to be appropriate for a reprimand to be issued, as a form of sanction against the Prosecution’, in cases of clear violations of the rights of the accused as a result of failure to disclose exculpatory material. ICC-01/09-02/11-728, paras 74-90.
55   ICC-01/09-02/11-732; ICC-01/09-02/11-732-AnxA-Red; ICC-01/09-02/11-732-AnxA-Corr-Red.
56   ICC-01/09-02/11-728-Anx1, para 2.
57   ICC-01/09-02/11-728-Anx1, para 3.
58   ICC-01/09-02/11-728-Anx1, para 3.
59   ICC-01/09-02/11-728-Anx1, para 3.
60   Article 54(1)(a) provides that in order to establish the truth, the Prosecutor shall ‘extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally’.
61   ICC-01/09-02/11-728-Anx2, para 1.
62   ICC-01/09-02/11-728-Anx2, para 1.
63   ICC-01/09-02/11-728-Anx2, para 2.
64   ICC-01/09-02/11-728-Anx2, para 4
65   ICC-01/09-02/11-728-Anx2, para 4.
66   ICC-01/09-02/11-728-Anx2, para 5.
67   ICC-01/09-02/11-728-Anx2, para 6.
68   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 1.
69   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 2.
70   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 21.
71   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 21.
72   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 21.
73   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 21. Judge Eboe-Osuji observed that these actions ‘implicate reassuring elements of integrity, professionalism and trust that the right thing will be done as the circumstances arise’.
74   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 22.
75   Judge Eboe-Osuji undertook a detailed examination of how these two concepts apply to the Defence’s request. ICC-01/09-02/11-728-Anx3-Corr2-Red, paras 23-85.
76   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 48.
77   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 87.
78   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 88. According to Judge Eboe-Osuji, ‘what was effectively expressed in the obiter in Mbarushimana is no more than a reiteration of the continuing desirability of that ideal situation’. Emphasis in original. ICC-01/09-02/11-728-Anx3-Corr2-Red, para 89.
79   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 90.
80   ICC-01/09-02/11-728-Anx3-Corr2-Red, para 94.

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