Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Protection and Protective Measures
The Prosecutor v.
William Samoei Ruto,
Henry Kiprono Kosgey and
Joshua Arap Sang
Modalities for contacting potential witnesses
Following the decision on the 23 March Defence
request for a variation of the Summons conditions in
the Muthaura et al case, on 6 April 2011 Single Judge
Trendafilova issued an identical decision in the case of
Ruto et al, adopting the same interpretation of the first
condition set out in the Summons. 2129 The Single Judge
noted that by virtue of benefiting from all ‘minimum
guarantees’ under Article 67, the Defence ‘may
approach, in principle, any person willing to give his or
her account of the events in relation to this case’. 2130
However, she emphasised that the VWU must be timely
notified of any such contact, and must be consulted
about whether or not this would put the person at risk
and/or which security arrangements would need to be
made. In the case a security risk arises, the VWU must
notify the Single Judge immediately.
Chamber to review its holding that the Defence’s
contact with potential witnesses should be arranged
in cooperation with the VWU. The Defence postulated
that the decision may prevent Defence counsel from
contacting potential witnesses and thus has the
potential to create obstacles to the preparation of the
defence. 2133 The Defence also requested the Chamber
to reiterate that these conditions apply to all parties
concerned, including to the Prosecution. The Defence
request was rejected in a decision on 12 May 2011.
The Chamber held that ‘the established modalities
of Defence contact with witnesses equally ensure
on the one hand the protection of witnesses, victims
and other persons at risk and, on the other hand, the
respect for the rights of the suspects, in particular
the right to prepare their defence and the right to
liberty’. 2134 As the Chamber found that the issues did
not constitute ‘appealable issues’, the Defence request
for leave to appeal the Chamber’s decision on the
variation of Summons conditions was also rejected.
On 6 April 2011, the Prosecution requested a further
four conditions to be added to the Summonses to
Appear. Specifically, it requested the Chamber to
order the accused: (i) to provide the Chamber with all
residential and office addresses, email addresses and
telephone numbers; (ii) to submit complete financial
information; (iii) to not make any public statements
that contain or can be construed as containing
an open or veiled threat to actual or prospective
witnesses or victims; and, (iv) to appear in person
before the Chamber at least once every six months
and certify before the Chamber, under oath, that they
have complied in full with all the conditions. 2131 This
request was denied by the Chamber on 20 April 2011
on the basis that there were no substantial changes in
circumstances since the issuance of the Summonses to
warrant a change in conditions. 2132
Following the rejection of a variation of summons
conditions on 6 April 2011, on 14 April 2011, the
Defence in the Ruto et al proceedings again requested
the Chamber to review and vary the modalities
to comply with the Summons conditions. In the
alternative, the Defence requested leave to appeal
the 6 April decision on the variation of Summons
conditions. In particular, the Defence requested the
326
2129 The first condition set out in the Summons to Appear
provides that Ruto, Kosgey and Sang must refrain from
having contact directly or indirectly with any person who
is or is believed to be a victim or a witness of the crimes
for which Ruto, Kosgey and Sang have been summoned.
ICC-01/09-01/11-1.
2130 ICC-01/09-01/11-38-Corr, para 14.
2131 ICC-01/09-01/11-41.
2132 ICC-01/09-01/11-63.
2133 ICC-01/09-01/11-47-Corr2, para 2.
2134 ICC-01/09-01/11-86, para 20.