This week, Trial Chamber V(A) at the International Criminal Court has been hearing the oral submissions on William Ruto and Joshua Arap Sang’s ‘no case to answer’ motions. Mr Ruto and Mr Sang are charged with three counts of Crimes Against Humanity (murder, deportation or forcible transfer of a population and persecution)[1] for their alleged role in Kenya’s post-election violence in 2007.[2] Following the formal closure of the prosecution’s case on 10 September 2015, the accused requested the dismissal of all the charges against them on the basis that the prosecution has failed to adduce evidence which, even taken at its highest, could be sufficient to support a conviction.[3]
This is the first time that a motion for acquittal at the halfway stage has been submitted at the International Criminal Court. While provisions for ‘no case to answer’ motions were introduced in the Rules of Procedure and Evidence (RPE) of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in 1998,[4] and in the first RPE of the Special Court for Sierra Leone in 2002, there is no similar provision in the statutory framework of the ICC. Nevertheless, in June 2013,in its Order requesting submissions on the conduct of the proceedings, Trial Chamber V(A) invited the parties and the Legal Representative for Victims (LRV), to submit their positions on whether ‘no case to answer’ motions should be allowed in the case.[5] All parties[6] and the LRV submitted that, despite the absence of an express statutory provision, the Trial Chamber was vested with the necessary powers to consider such motions. On 9 August 2013, the Chamber decided that a ‘no case to answer motion’ would, in principle, be permissible in this case.[7]
In its 2014 Decision No. 5 on the Conduct of Trial Proceedings (Principles and Procedure on ‘No Case to Answer’ Motions) (Decision no. 5),[8] the Chamber elaborated on the legal basis for its determination. The Judges noted that, while the statutory framework of the Court did not expressly regulate ‘no case to answer’ motions, a number of Statutory provisions could be relied upon which would enable the Chamber to consider them, namely: Article 64(3) which empowers the Chamber to ‘[c]onfer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings’; Article 64(6)(f) which vests the Chamber with the authority to ‘rule on any other relevant matter’; and Rule 134(1) and (2) which permit the Chamber to rule on other issues prior to and during the course of the trial.[9] The Chamber further noted that it was concomitant to its obligation under Article 64(2) to ensure a fair and expeditious trial, the rights of the accused and the regard for the protection of victims and witnesses.
While some scholars had previously suggested that the lack of an express provision would not preclude ‘no case to answer’ motions,[10] the Chamber’s Decision has been cited as one of the examples of Trial Chambers at the ICC “adopt[ing] proceedings clearly not foreseen by the Statute and the Rules”.[11] It has been submitted that this seems to indicate a shift away from “the original principled approach for a strict respect of the Statute and Rules […] in favour of a more ‘flexible approach’” which might afford the parties less procedural certainty.[12]
At the same time it has been suggested that the absence of a provision regulating ‘no case to answer’ motions stems from the inability of the drafters of the Rome Statute to agree upon which form of trial proceedings to adopt,[13] leaving the individual Trial Chambers with significant discretion in this regard.[14] Since ‘no case to answer’ motions apply within the context of an adversarial structure,[15] where the case for the prosecution is followed by the defence case, it would be difficult to apply in a situation where the Trial Chamber chooses to adopt an alternative structure of proceedings. At the same time, the consistent trend at the ICC is that the order of presentation of evidence has followed what the Chamber referred to as the “general practice in the administration of international justice”,[16] which follows the adversarial model.[17]
In Decision No. 5, Trial Chamber V(a) also laid out the applicable legal standards. In order for the Prosecution to successfully challenge a ‘no case to answer’ motion, the evidence is required to support “(i) both the legal and factual component of the crime and (ii) the individual criminal conviction of the accused”.[18] To be sufficient, the evidence does not need to support all the incidents related to a charge; it is enough that the evidence supports at least one of the incidents in a specific count, together with one mode of liability in respect of each count.[19] Because the Chamber can change the legal characterisation of the facts from those established in the Documents Containing the Charges, pursuant to Regulation 55 of Regulations of the Court, the Chamber can also consider the legal characterisation upon which such notice has been issued. In this case, , although the Chamber has not changed the legal characterisation of the facts, the Judges have, the Court has provided notice to Mr Ruto under article 55(2) that they may be subject to change to include other possible modes of liability.[20] A Prosecution request for a Regulation 55(2) notice is currently pending in respect of Mr Sang.[21]
In assessing the evidence, the applicable standard of proof is distinct from that applicable at the final determination of the case (where the beyond reasonable doubt standard applies). A ‘no case to answer’ motion aims to determine whether a defence case is at all necessary, therefore, the standard is “whether there is sufficient evidence introduced on which, if accepted, a reasonable Trial Chamber could convict the accused.”[22] Relying upon the assessment standard that was developed at the ad hoc tribunals, the Trial Chamber noted that this entailed the evidence being taken “at its highest”, that is, that the evidence will be presumed to be credible “‘unless it is incapable of belief’ on any reasonable view”.[23] Therefore, the Chamber will only consider issues of credibility and reliability where the evidence is “incapable of belief by any reasonable Trial Chamber”.[24]
The Defence have submitted[25] that the Prosecutor’s case is fatally flawed on various substantive and evidentiary levels, and that it fails to establish the basic components of the crimes charged and the liability of the accused. The Prosecution, on the other hand, has submitted that the Defence motions “essentially amount to a series of speculative arguments and credibility challenges, which […] fail to provide adequate grounds to dismiss any of the charges at this juncture”.[26]
The Chamber is now required to decide whether or not to render a full or partial judgment of acquittal at this stage of the proceedings.
[1] Under Article 7(1)(a)(d) and (h) of the Rome Statute
[2] Mr Ruto is accused of being an indirect co-perpetrator under article 25 (3)(a) of the Statute for the crimes against humanity of while Mr Sang is being accused, under article 25(3)(d) of the Statute, for the same crimes against humanity.
[4] Rule 98 bis
[5]A similar request was made by Trial Chamber V(B) in the case against Uhuru Kenyatta (the charges against Mr Kenyatta have since been withdrawn and the case terminated.
[6] See Prosecution, Ruto and Sang submissions
[7]Para. 32
[8] See also Judge Eboe-Osuji’s Separate Further Opinion to Decision No. 5
[9]Para. 15
[10]. Safferling, International Criminal Procedure, (Oxford: OUP 2012), pg 450
[11] G. Bitti ‘Article 64’ in O Triffterer and K Ambos (eds), Commentary on the Rome Statute of the International Criminal Court, 3rd edn (Munich: C.H. Beck 2015) pg 1594 mn 10
[12] C. Stahn, The Law and Practice of the International Criminal Courts, (Oxford: OUP 2015), pg 420
[13] H. Friman, H. Brady, M. Costi, F. Guariglia, C.-F. Stuckenberg, ‘Charges’ in Sluiter [et. al] (eds), International criminal procedure : principles and rules (Oxford: OUP 2013), 431
[14] See Article 64(8) of the Statute and Rule 140 of the RPE
[15] See H. Friman, H. Brady, M. Costi, F. Guariglia, C.-F. Stuckenberg, ‘Charges’ in Sluiter [et. al] (eds), International criminal procedure : principles and rules (Oxford: OUP 2013), 466; See also Judge Eboe-Osuji’s Separate Further Opinion to Decision No. 5
[16] Decision no. 5 para. 17
[17]For a critique of this approach, see G. Bitti ‘Article 64’ in O Triffterer and K Ambos (eds), Commentary on the Rome Statute of the International Criminal Court, 3rd edn (Munich: C.H. Beck 2015) pg 1616 mn 46
[18]Decision no. 5 para. 26
[19]Decision no. 5 para. 27-28. The Ruto Defence has requested that the Chamber reconsider this approach (para. 139 to 141).
[20] Currently Mr Ruto is charged with participation under 25(3)(a) but has been given formal notice about a possible re-characterisation of facts to include participation under articles 25(3)(b)(c) or (d).
[21] To include liability under articles 25(3)(b) or (c) of the Statute; Mr Sang has objected to these modes of liability being considered for the purpose of the “no case to answer” motion since he has not been put on formal notice (see paras. 8- 13)
[22] Decision no. 5 para. 23
[23] Decision no. 5 para. 23. See also fn. 43
[24]Decision no. 5 para. 33
[25] See Ruto and Sang motions
[26] Para. 12
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