The Appeals Chamber of the International Criminal Court (ICC) has set aside, for the time being, a decision to allow Deputy President William Samoei Ruto to skip part of his trial hearings.
In an unanimous decision announced Tuesday, the Appeals Chamber agreed to the prosecution’s request to suspend the June 18 majority ruling of Trial Chamber V(a) to grant Ruto limited permission to be absent from part of his trial. The Appeals Chamber’s ruling will remain effective until the five-judge panel reaches a decision on ICC Prosecutor Fatou Bensouda’s appeal against Trial Chamber V(a)’s June 18 ruling.
The appeals judges’ decision means Ruto will have to sit through the entire proceedings beyond the opening statements of his trial, which is scheduled to begin on September 10. Ruto faces three counts of crimes against humanity for his alleged role in the violence that followed the 2007 presidential poll. He is charged together with radio journalist Joshua arap Sang, who has committed to attend the entire proceedings and so is not affected by the Appeals Chamber’s ruling Tuesday.
The appeals judges made their interim decision after receiving Bensouda’s appeal on July 29 and the responding submission from Ruto’s lead lawyer, Karim Khan, on August 8. Their decision echoed Bensouda’s arguments for requesting the temporary setting aside of the June 18 ruling.
Bensouda had asked the judges to consider the request if they would not have reached a decision on the appeal before the start of Ruto’s trial on September 10. She argued that if that was the case, then by the time the Appeals Chamber makes a ruling, the trial could have advanced to a point where matters may be irreversible, irrespective of how the appeals judges rule.
Khan disagreed. He argued, among other points, that the Appeals Chamber was likely to take a shorter time than the trial’s duration to reach its decision. The appeals judges did not agree with Khan.
“In all the circumstances of this case, the Appeals Chamber finds that the consequences of implementing the Impugned Decision prior to the issuance of the judgment on the Prosecutor’s Appeal, would be difficult to correct and may be irreversible and that suspension of the Impugned Decision is warranted,” wrote Judge Akua Kuenyehia on behalf of the other Appeals Chamber judges.
The appeal being considered is challenging the 2-1 decision Trial Chamber V(a) made requiring Ruto to attend the opening and closing sections as well as the part of his trial when victims will be testifying. The judges also required Ruto attend trial whenever they direct but allowed him to be absent from the rest of the proceedings. Presiding Judge Chile Eboe-Osuji and Robert Fremr made the decision with Olga Herrera Carbuccia dissenting.
In her appeal, Bensouda described the 2-1 decision of Trial Chamber V(a) as “authorising Mr Ruto’s absence for substantially all of his trial.” Bensouda has argued two legal grounds in her 20-page submission, referring to Herrera Carbuccia’s dissenting opinion, the official records of the negotiations on the Rome Statute that created the ICC, among other references. Khan’s response challenges the prosecution’s two legal grounds for appeal as well as the prosecution’s interpretation of various reference documents.