Five African states file submissions on whether Ruto should be excused from trial

For the first time in the International Criminal Court’s (ICC) history, states that are not party to any case before it or directly involved in any of its proceedings have made submissions as friends of the court.

Burundi, Eritrea, Rwanda, Tanzania, and Uganda made a joint submission to the Appeals Chamber in the case of Kenya’s Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang. The prosecution has appealed a majority decision Trial Chamber V(a) that allows Ruto to attend some of his trial hearings and skip others.

The appeal challenges the trial chamber majority’s interpretation of Article 63 of the Rome Statute, which has to do with the presence in court of an accused person during their trial and related matters.

The five African states have recommended the Appeals Chamber uphold the decision of Trial Chamber V(a) because such a ruling would “enhance the system of international justice.”

Burundi, Eritrea, Rwanda, Tanzania, and Uganda made their September 17 submission as friends of the court, or amici curiae in Latin, something that is provided for in the ICC Rules of Procedure and Evidence. Under Rule 103, the court may allow or invite a submission from any individual or organization or state if the court feels that such a submission will help a case it is adjudicating. Several individuals and organizations have applied before to be friends of the court in the two Kenya cases at the ICC, but this is the first time the court has granted such requests.

In their joint submission, Burundi, Eritrea, Rwanda, Tanzania, and Uganda said their observations are only focused on the demands of a court case on accused persons such as Ruto, Kenya’s deputy president, who are expected to perform “important functions of an extraordinary dimension.” The five nations argued that the ICC needs to find a balance between the ICC process of justice and national constitutional obligations. Burundi, Eritrea, Rwanda, Tanzania, and Uganda said that Trial Chamber V(a) found such a balance in its majority decision of June 18.

“The Amici Curiae [friends of the court] respectfully observe that the Appeals Chamber upholding of the Decision [June 18] will be in accordance with the framework of the Rome Statute, including its preamble, and will encourage the highest office holders in States Parties and non-State Parties alike to fully cooperate with the Court in the future,” wrote Johnston Busingye, Rwanda’s Justice Minister and Attorney General. Busingye signed the joint submission for and on behalf of his colleagues from Burundi, Eritrea, Tanzania and Uganda.

Karim Khan, Ruto’s lawyer, filed a short response to the joint submission stating that the defense welcomed observations by any state that would help the court reach a decision on the appeal.

ICC Prosecutor Fatou Bensouda asked the Appeals Chamber to dismiss the joint submission, arguing that the appeal is concerned with the legal interpretation of Article 63 rather than how to encourage the cooperation of countries that are signatories to the Rome Statute and those nations that are not. Bensouda also argued that the points raised in the joint friends of the court submission repeats what the defense had submitted in response to the appeal.

Appeals Judge Anita Usacka made a similar observation when she dissented from allowing Burundi, Eritrea, Rwanda, Tanzania, and Uganda to file observations as friends of the court. Usacka also said that the question of how to better guarantee cooperation from member states or how to encourage more states to ratify the Rome Statute was a matter for the Assembly of State Parties and not the judges of the ICC. Usacka was alone in her dissent, and the other four judges of the Appeals Chamber granted permission to the five countries to file their observations.

The friends of the court submission of Burundi, Eritrea, Rwanda, Tanzania, and Uganda is part of a new push, at the least, to get the ICC to accord Ruto and his boss, President Uhuru Muigai Kenyatta, different treatment from other accused persons before the court. The push is also aimed at getting the court to refer the cases back to Kenya. Kenyatta is facing a separate trial on five counts of crimes against humanity for his alleged role in the violence that rocked Kenya after the December 2007 presidential poll. Ruto and Sang are each facing three counts of crimes against humanity for their alleged roles in that violence.

The five countries applied to the Appeals Chamber to be allowed to make submissions as friends of the court soon after Kenya’s National Assembly debated and voted on a resolution critical of the ICC on September 5. The opposition walked out during that debate, leaving members of the Jubilee Coalition, led by Kenyatta and Ruto, to vote in favor of the motion that called on Kenya to withdraw from the ICC. The motion also gave the National Assembly 30 days to begin the process to repeal the International Crimes Act, which is the law that anchors the Rome Statute in Kenyan statutes.

Rwanda, which has not ratified the Rome Statute, was the first to send through an application asking to be a friend of the court. Rwanda’s application is dated September 6, a day after the vote in the Kenyan National Assembly. The applications of Burundi, Tanzania, and Uganda are dated September 9, the Monday after the vote in the Kenyan National Assembly. Eritrea’s application is not dated but it was received by the ICC’s Registry around the same time as the other four applications.

Rwanda’s application to the Appeals Chamber was written from the perspective of a non-State Party, to use the ICC parlance for non-member state, and argued that Rwanda would be raising points about the prosecution’s appeal that had an impact on the interests of a non-State Party. The applications of Burundi, Eritrea, and Tanzania were identical, except the signatures at the end. They were identical even in leaving out a footnote where it had been indicated the correct one should be inserted. It seems the three nations used a template application that included the actual wording, and all they did was write in hand the country’s name on the first page and on the last page write in hand the name and title of the official signing on behalf of the respective country. All this, in addition to leaving in place the boxes indicating where to insert the country name or official’s name.

The same week that Burundi, Eritrea, Tanzania, and Uganda sent in their applications to be friends of the court, African Union (AU) Chairperson Hailemariam Desalegn and AU Commission Chairperson Nkosazana Dlamini-Zuma sent a joint letter to the ICC Presidency. In the letter, they asked that the proceedings against Ruto and Kenyatta be suspended until the court has addressed the AU’s request to have the Kenya cases referred back home. Judge Cuno Tarfusser, the ICC Second Vice President, responded on September 13 saying that the court can only consider suspending the Kenya cases if an application is made to the court.

The AU letter is dated September 10, which is the same day that Kenya’s Foreign Affairs Secretary Amina Mohammed and Rwanda’s Louise Mushikiwabo met in the Ethiopian capital, Addis Ababa, with Hailemariam, who is also Ethiopia’s prime minister, and Dlamini-Zuma. They discussed Kenya’s relationship with the ICC and the idea of an extraordinary summit of AU heads of state and government solely on the ICC. This is according to a September 16 memo circulated among Eastern Africa states of the AU that ICC Kenya Monitor obtained. The memo also noted that members of the Eastern Africa group requested governments to submit amicus curiae briefs in the prosecution’s appeal challenging Trial Chamber V(a)’s majority decision excusing Ruto from some of his trial hearings.

Two days after the memo, Nigeria sent its application to be allowed to make a submission as a friend of the court. Earlier, Ethiopia had sent its application, dated September 12. The Appeals Chamber declined to allow their requests, saying they raised the same issues that Burundi, Eritrea, Rwanda, Tanzania, and Uganda had brought up in their submissions. The Appeals Chamber also said that because the five Eastern and Central African states had already submitted their amici curiae brief it was not necessary to receive more submissions otherwise that would delay the court process further.

The Appeals Chamber is yet to decide on the prosecution’s appeal but it has in the meantime asked that Ruto attend all his trial hearings until it makes its decision. The Appeals Chamber has no set deadline to make its decision. The proposed AU extraordinary summit is yet to be confirmed because according to the organization’s Constitutive Act, such a meeting needs the approval of two-thirds of its membership before it can take place. It is unclear so far how many of the African Union’s 54 member states have approved the idea of an extraordinary summit.