Seeing the evidence requires a return to The Hague

“Show me the evidence!” was the emphatic demand during the initial appearances last week of the six Kenyan public figures under investigation by the International Criminal Court (ICC). For that, they need to show up at the ICC again and attend the confirmation hearings in September this year.

As set out in my Q&A, the purpose of the hearings this past Thursday and Friday was limited. It was simply to determine whether the persons named in the summons to appear were informed of the charges and knew their rights under the ICC’s legal document, known as the Rome Statute.

My assessment of the initial appearance hearings is that they went very smoothly. Reading the media round-ups shows that it was a very informative process for Kenyans and dispelled some myths on the ICC. The participation of the six is a great reinforcement of the efficient functioning of the ICC and the commitment of the parties to international justice and the fight to end impunity. But the heart of the matter is yet to come.

In September the confirmation hearing will examine whether to send the cases concerning the six to trial. This will answer their demands to see the prosecutor’s evidence. According to Article 61(3) of the Rome Statute, the prosecutor is obliged to provide them with the “Document Containing the Charges” and the evidence which the prosecutor intends to rely on.

The provision of the evidence is known as “disclosure” and it must be done within a “reasonable time” before the confirmation hearing. The timeframe for disclosure is determined by an order of the judges. Once disclosure has taken place, ideally the bulk of the investigation is complete, since subsequent investigations will require subsequent disclosure, and there are greater restrictions on disclosure as the case approaches the hearing date, since it would be unfair to admit evidence which the parties have not been able to review. The prosecution therefore is running out of time to complete their investigation. Furthermore, as a result of the jurisdictional challenge made by the Kenyan government under Article 19(7) of the Rome Statute, investigations are suspended until the judges decide that investigations can proceed.

If the six are sincere in their demands to see the prosecutors evidence, they will need to travel back to The Hague appear before the ICC judges in September. If the prosecution is to build a strong case, they need to already be in the advance stages of their investigations.

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