Team to try ICC accused begins work in May

By STEVE MKAWALE

The Trial Chamber of the International Criminal Court that will decide the fate of the ‘Ocampo Four’ is expected to be up and running by the second week of May.

A Bench of three judges with extensive criminal trial experience is to be set up by May 9, and a timetable for the trials published shortly thereafter. Only a challenge on whether the ICC has jurisdiction to hear the two Kenya cases stands between the four accused and their date in the dock at The Hague. Last week, the ICC Appeals Division ruled preparation for the trials could go ahead before the jurisdiction challenge was decided.

A court session during International Criminal Court confirmation of charges hearings against some of the Ocampo Six last year. [PHOTO: FILE/STANDARD]

On Friday, Pre-Trial Chamber II judges rejected appeals by Deputy Prime Minister Uhuru Kenyatta and former Head of Civil Service Francis Muthaura. The Chamber also declined to allow an appeal by Eldoret North MP William Ruto and radio presenter Joshua arap Sang, also facing charges resulting from 2007 post-election violence.

The fast-tracked progress of the Kenya cases against Ruto, Sang, Uhuru and Muthaura is expected to have an impact on the outcome of the next presidential election. Ruto and Uhuru are presidential aspirants whose participation is in doubt due to the legal and logistical challenges they will face as ICC suspects.

The four await a decision from ICC President Song Sang-yun on which three of the eight judges of the Trial Division will hear the cases against them.

Dropped from list

One name that is certain to be dropped from the list early on is that of Kenyan judge, Lady Justice Joyce Aluoch. The three judges who will be picked from the remaining pool of seven will carry out the judicial functions of the Trial Chamber in accordance with Article 39 (2) (b)(ii) of the Rome Statute.

According to information from the ICC website, the major role of the Trial Chamber, expressed in Article 64 of the Rome Statute, is adopting all the procedures needed to ensure a fair and speedy trial, while respecting the rights of the accused and protecting victims and witnesses.

The Standard On Sunday looks at the profiles and legal experience of some of the judges of the ICC who might sit in the Trial Chamber for the case.

Judge Sir Adrian Fulford of the United Kingdom is the president of the Trial Division that handles criminal cases before the court.

Fulford, 59, was educated at Elizabeth College, Guernsey and the University of Southampton. He was called to the Bar at the Middle Temple as a barrister in 1978, and appointed Queen’s Counsel in 1994.

Since 2002, he has been a judge of the Queen’s Bench Division of the High Court of England and Wales, being knighted shortly after his appointment. He was the first openly gay lawyer to join the ranks of the Judiciary (on his appointment as a Recorder in 1995).

Although now a judge of the ICC, Fulford continues his work in the United Kingdom and has presided over a number of high-profile cases, including the July 21, 2005, London bombings trial and the trial of terrorist plotter Saajid Badat.

Other judges who might constitute the Trial Chamber include Judge Fatoumata Dembale Diarra of Mali, Costa Rica’s Elizabeth Odio Benito, Bruno Cotte of France, Belgium’s Christine van den Wyngaert, Kuniko Ozaki from Japan, and Bolivian Rebe Blattmann.

Justice Diarra has been a judge for the International Criminal Tribunal for the former Yugoslavia. A holder of Bachelor of Laws from Dakar University and a Master of Laws from the Mali National College of Public Administration, she has sat on the Bench at the ICC since 2003.

In 2009, Diarra served as the first vice-president of the ICC under the president, Song Sang-Hyun.

Another judge likely to make it to Bench is 73-year-old Justice Elizabeth Odio Benito. She also served as a judge on the International Criminal Tribunal for the Former Yugoslavia. In her home country of Costa Rica, Benito was twice appointed Justice Minister and later became vice-president of the Republic.

The peak of her domestic political career came in 1998, with her election as Second vice-president alongside President Miguel ¡ngel RodrÌguez and First Vice-President Astrid Fischel Volio. During this time she was also Minister for the Environment and Energy.

Her election to the ICC was not without controversy. Her candidacy had initially been sponsored by Costa Rica, but President Abel Pacheco withdrew support without explanation.

Permissive stand

It has been suggested by the pro-life movement that Odio Benito’s permissive stand on abortion motivated Pacheco to move against her. But various women’s groups mobilised to campaign for her re-admittance and she was eventually re-nominated by Panama.

Benito was thus the only candidate not to be sponsored by her own nation. Nevertheless, she was elected in the first out of 33 rounds of voting, indicating strong support from States Parties.

Belgium-born Justice Christine van den Wyngaert, a criminal law expert is another judge of the Trial Chamber Division of the ICC. She is also one of the judges at the tribunal for the former Yugoslavia. In January 2009, she was appointed ICC judge.

French national Bruno Cotte, 67, was a former member of the Cour de Cassation, France’s Supreme Court of Appeal. He had previously been Director for Criminal Affairs and Pardons in the French Ministry of Justice, Attorney General of the Versailles Court of Appeal and a public prosecutor of the Paris district court.

He was elected to the ICC in 2008 to fill a judicial vacancy after a proposal from Western European and others group of states. He is a member of the List A of judges, the list comprising those judges who are experts in criminal law.

The other judge the ICC presidency might appoint is Bolivian Judge RenÈ Blattmann, 64, a lawyer- cum-politician. Prior to his appointment to the ICC, Blattmann served as Bolivia’s minister for justice and human rights.

Blattmann was elected to the ICC from the Latin American and Caribbean group of states and is a member of List B, the list of judges whose experience is in the field of human rights law and international law.

He was elected for a six-year term in 2003, and although that term expired in 2009 he remains in office for the duration of the trial of Thomas Lubanga. As a verdict is expected in May, his term would have to be extended for him to stay on for the Kenya case.

According to ICC rules and regulations, the cases against the four Kenyans will be heard in public hearings, unless special circumstances require closed sessions to preserve confidential or sensitive information, or protect victims and witnesses.

Article 63 of the Rome Statue demands that the four accused shall be present during the trial.

But if the four decide to disrupt the trial, the Trial Chamber may remove them and make provisions for them to observe the trial from outside the courtroom.

Such measures, however, are only taken in exceptional circumstances after other responsible alternatives have proved inadequate, and only for such duration as is strictly required, according to trial rules.