The International Criminal Court (ICC) Presidency has named a Belgian judge with a decades-long background in academia, a Japanese judge with a background in diplomacy and international law, and an experienced Nigerian prosecutor to form a three-person bench that will try the Kenya cases at the ICC.
The Presidency of the ICC announced on Thursday that Christine Van Den Wyngaert of Belgium, Kuniko Ozaki of Japan, and Chile Eboe-Osuji of Nigeria will form Trial Chamber V, which will be responsible for what seems to be shaping up as the most politically explosive case to reach trial at the ICC.
Two of the accused persons, Deputy Prime Minister Uhuru Muigai Kenyatta and former Cabinet Minister William Samoei Ruto, who will appear before the judges are aspiring presidential candidates in Kenya’s general election that is scheduled for March 4, 2013. As Kenyatta and Ruto have sought to consolidate their respective political bases, they, and particularly their allies, have sought to frame the ICC cases as not being about justice for the victims. They have generally claimed that the cases are politically instigated to suit their main rival, Prime Minister Raila Odinga. These arguments also featured when the two individuals made their defense during the pre-trial stage of the cases.
Kenya’s coalition government is divided on all ICC-related matters from whether there should be any cases at the court to whether the two accused should be aspiring to be president. This split forms the sub-text of any government decisions related to its cooperation with the ICC or how to proceed with now-stalled plans to reform the police.
The Presidency of the ICC seemed to be short of experienced judges in the Trial Division of the court and so they called up Judge Van Den Wyngaert to Trial Chamber V from the Pre-Trial Division where she has been assigned to date. Four out of the six judges of the Trial Division were elected to their posts on March 11 this year. The other two are Ozaki and a Kenyan judge.
Van Den Wyngaert is the most experienced of the Trial Chamber V judges, having served as a judge with the ICC since March 2009. She taught international criminal law and related subjects for about two decades in her native Belgium and elsewhere. She served as a judge with the International Criminal Tribunal for the former Yugoslavia between 2003 and 2009 before she was elected to be judge at the ICC.
Ozaki is the second-most experienced judge of Trial Chamber V, having served as an ICC judge since January 2010. Before joining the ICC, she worked for the United Nations Office on Drugs and Crime. Before that, she worked in a variety of capacities for Japan’s Ministries of Foreign Affairs and Justice.
Eboe-Osuji, who is among the new crop of ICC judges elected earlier this month, brings a prosecutor’s worldview to Trial Chamber V. He has served as a prosecutor at the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda. Before joining the ICC, he was legal advisor to the United Nations High Commissioner for Human Rights.
The immediate assignment for the Trial Chamber V will be to prepare the ground for the trial. This preparatory work is likely to run parallel to a case before the Appeals Chamber where the defendants are challenging whether the crimes committed in Kenya meet the threshold necessary to be adjudicated before the ICC. The Appeals Chamber has already made a significant decision in that case, where it determined that it will not order the trial proceedings to be suspended until it rules on the substantive appeals.
The preparatory work before Trial Chamber V includes setting a schedule for all parties to disclose their evidence and enable all concerned to prepare their cases. The Chamber will also determine who will represent the victims as the previous counsels had been hired for the pre-trial phase only.
The Kenya cases before the ICC stem from the violence that followed the controversial December 2007 presidential polls during which more than 1,000 people were killed. That violence nearly broke up Kenya and so there were persistent demands from victims, activists, and other members of Kenyan society that the suspected perpetrators of the violence should be brought to justice, unlike in the past when political violence was never dealt with.
The ICC authorized Prosecutor Luis Moreno-Ocampo to investigate the Kenya cases in March 2010. This authorization came after almost two years of Kenyan politicians changing their positions on what was the best legal approach to deal with the death and destruction of the post-election violence. They were split on whether to support a credible and independent local tribunal or refer the cases to the ICC. And then there was a third group that advocated reconciliation instead of retribution.
In December 2012, the Prosecutor named the six individuals he believed bore the greatest responsibility for the crimes against humanity committed during the December 2007-February 2008 post-election violence. Two out of three judges of Pre-Trial Chamber II ruled in January this year that only four of them should stand trial.