The legal representative for victims has said that dozens of victims have written a collective letter to withdraw from the trial of Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang because they did not have faith in the International Criminal Court’s (ICC’s) reparations process.
Other reasons the victims gave for wanting to withdraw from the trial was the time it has taken for the trial to start, security, and a civil suit at the Kenyan High Court, Wilfred Nderitu wrote in a report submitted to the judges of Trial Chamber V(a). Some victims also thought other suspected perpetrators of the violence that rocked Kenya after the December 2007 presidential election should be standing trial. Nderitu sent the report to the judges on August 30, but a redacted version was only made public on September 5.
In late July or early August, the judges ordered Nderitu to write the report following news in June this year that 93 witnesses had written to the “Victims and Witness Office” of the ICC. There is no Victims and Witness Office at the ICC. The court has a Victims Participation and Reparation Section (VPRS) of the Registry that is responsible for determining the victims eligible to participate in a particular case depending on instructions given by the respective judges.
In his report Nderitu said that he determined that 33 of the 93 individuals listed in the withdrawal letter do not qualify to participate in the trial of Ruto and Sang. The criteria used to determine this is the majority decision of Pre-Trial Chamber II to confirm charges against Ruto and Sang in January last year. In this decision the judges laid out the geographical area of the attacks that form the case to go to trial as well the time frame during which those attacks took place.
Nderitu said that of the balance 60 victims, only seven of them are still taking part in the case after being met by Nderitu’s team. He said their decision to withdraw was taken at a meeting whose venue, possible date, and organizer are redacted from the public version of the report. Also redacted from the public version of the report is the name of the person who went to each victim to secure their signature for the withdrawal letter.
Among the reasons that the victims gave for withdrawing from the case was that they did not want collective reparations, Nderitu said in his report. Over time Nderitu and representatives of the VPRS of the ICC have explained to them that though individual reparations are possible in theory, in reality if the case gets to the stage of reparations, the Trust Fund for Victims of the ICC will most probably build a school or hospital for the community the victims live in.
Nderitu said in his report that many of the victims said they continue to live with people they know to be perpetrators, and they would not want to receive collective reparations with them.
“Due to this reality about the reparations regime, many victims feel disillusioned and consider that justice cannot be done in this way and that there is therefore no need to continue to participate in the case,” Nderitu reported.
Nderitu also narrated an incident in July this year in which government officials tried to interfere with his work as the lawyer for victims in the Ruto and Sang case. He said that the July incident, together with an earlier one in February, and the withdrawal letter have made Nderitu, “consider that personnel in the local administration and national government are intent on intimidating him, his team and victims in order to dissuade or impede from continued participation in the proceedings before the Court.”
Nderitu recommended to the court that the 60 victims should be considered to be still participating in the case unless they individually write to him or write to the court expressing their intention of pulling out of the case.
Nderitu’s report is the first formal step by the ICC system to try and address the issue of victims’ withdrawing from the Ruto and Sang case. Sang’s lawyer had raised the issue in an August 19 application to the judges. That application, however, focused on asking the judges to determine how many victims remained part of the case and not the circumstances around their withdrawal.
On Tuesday, Nderitu warned the court during the opening session of the trial that the withdrawal of witnesses and victims from the case threatened the credibility of the proceedings.
“At another level, your Honours, the withdrawals will make meaningless efforts by the Court to address the immunity — the impunity gap, and at yet another level I hasten to warn that the withdrawals may well spell the death knell for this Court and for international criminal justice as we perceive it today,” Nderitu said in his opening statement.
“Your Honours therefore have the noble, but equally difficult, task to take appropriate steps to ensure the effective investigation of both witness and victim withdrawal from the proceedings and to take appropriate consequential measures. The victims I represent are convinced that in this you will not disappoint,” he said.