ICC shows Kenyatta-Ruto cases no escape from justice: Where did AU go wrong on these highly charged matter?
October 26, 2013
by Keffyalew Gebremedhin, The Ethiopia Observatory
Automaticity of Ruto’s excusal from his trial rejected
We already had occasion on October 19, 2013 to comment on the ICC Trial Chamber’s conditional “excusal from continuous presence at trial” given to ICC-indictee Uhuru Kenyatta on October 18, 2013. We showed uneasy sympathy with the Court’s action, out of awareness that the Kenyan state could not be auto- or remote-piloted, especially at this time when that country needs the full attention of its head of state.
On the other hand, when the Appeals Chamber this morning announced its decision rejecting ICC-indictee William Ruto’s request, which was supported by Burundi, Eritrea, Rwanda and Tanzania – demanding similar treatment of conditional excusal as Kenyatta’s under Article 63 (1) of the Statute – we took great satisfaction. We immediately recognized that this latest decision would put into balance the right to justice of both sides of the Kenyan tragedy – those in the dock and the victims – an outcome of the bloody 2007-2008 election.
What this action by the Court reminds us is that justice is indivisible – a notion and principle to which the African Union (AU) has totally ignored or been contemptuous of. Therefore, in upholding the appeal by the Prosecutor, what the Appeals Chamber has done is to inform the world that protracted advocacy of justice for powerful people we witnessed at the AU summit and ever since is not necessarily justice for ordinary citizens, especially the victims.
For this precedent-setting decision, this blog would congratulate Prosecutor Fatou Bensouda and her energy, which sprung her into action against the granting to Ruto of conditional absence from the trial with 20-page appeal document the Prosecutor entitled:
“The accused shall be present during the trial.”
The Prosecutor’s essential point is that “The Majority of Trial Chamber V(a) (“Majority”) erred in law when it disregarded this statutory requirement and excused Mr Ruto from attending substantially all of his trial.” In explaining that, she stated, “Whatever “discretion” a Trial Chamber may have, it does not permit it to discard controlling statutory requirements, or to substitute its own policy preferences for those of the States Parties. The Majority it [sic] is bound to apply the law as it stands. The Decision fails to do this, and is incorrect as a result.”
Meanwhile, it is our understanding that whatever resolution that is being drafted for action by the Security Council, requesting the ICC to defer the trial for a year for both Kenyan ICC-indictees, may in this situation be forced to move to its natural death. We are equally pleased by the position the United States took, as articulated on October 23, 2013 briefing to the press. There, the State Department indicated, “We continue to encourage Kenya to meet its commitments to ensuring accountability for the victims of the post-election violence,
including by cooperating with the ICC.”
Automaticity of Ruto’s excusal from his trial rejected
We already had occasion on October 19, 2013 to comment on the ICC Trial Chamber’s conditional “excusal from continuous presence at trial” given to ICC-indictee Uhuru Kenyatta on October 18, 2013. We showed uneasy sympathy with the Court’s action, out of awareness that the Kenyan state could not be auto- or remote-piloted, especially at this time when that country needs the full attention of its head of state.
On the other hand, when the Appeals Chamber this morning announced its decision rejecting ICC-indictee William Ruto’s request, which was supported by Burundi, Eritrea, Rwanda and Tanzania – demanding similar treatment of conditional excusal as Kenyatta’s under Article 63 (1) of the Statute – we took great satisfaction. We immediately recognized that this latest decision would put into balance the right to justice of both sides of the Kenyan tragedy – those in the dock and the victims – an outcome of the bloody 2007-2008 election.
What this action by the Court reminds us is that justice is indivisible – a notion and principle to which the African Union (AU) has totally ignored or been contemptuous of. Therefore, in upholding the appeal by the Prosecutor, what the Appeals Chamber has done is to inform the world that protracted advocacy of justice for powerful people we witnessed at the AU summit and ever since is not necessarily justice for ordinary citizens, especially the victims.
For this precedent-setting decision, this blog would congratulate Prosecutor Fatou Bensouda and her energy, which sprung her into action against the granting to Ruto of conditional absence from the trial with 20-page appeal document the Prosecutor entitled:
“The accused shall be present during the trial.”
The Prosecutor’s essential point is that “The Majority of Trial Chamber V(a) (“Majority”) erred in law when it disregarded this statutory requirement and excused Mr Ruto from attending substantially all of his trial.” In explaining that, she stated, “Whatever “discretion” a Trial Chamber may have, it does not permit it to discard controlling statutory requirements, or to substitute its own policy preferences for those of the States Parties. The Majority it [sic] is bound to apply the law as it stands. The Decision fails to do this, and is incorrect as a result.”
Meanwhile, it is our understanding that whatever resolution that is being drafted for action by the Security Council, requesting the ICC to defer the trial for a year for both Kenyan ICC-indictees, may in this situation be forced to move to its natural death. We are equally pleased by the position the United States took, as articulated on October 23, 2013 briefing to the press. There, the State Department indicated, “We continue to encourage Kenya to meet its commitments to ensuring accountability for the victims of the post-election violence,
including by cooperating with the ICC.”
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