, NAIROBI, Kenya, Feb 10 – The International Criminal Court (ICC) Prosecutor Luis Moreno Ocampo has filed an application saying he is not opposed to a plea by defence teams to suspend trials pending the decision on appeals made by four Kenyans accused of crimes against humanity.
He said they have a right to be heard.
In documents he filed on Thursday evening, the Prosecutor nonetheless maintains that the appeals by Uhuru Kenyatta, Francis Muthaura, William Ruto and Joshua arap Sang don’t meet the criteria set up by the Appeals Chamber which is expected to rule on their challenge to jurisdiction.
“Notwithstanding the Prosecution’s opposition, however, it agrees that the interest of justice might exceptionally justify delaying the initiation of trial proceedings and may make a request to that effect, or support a defence request, or both, to the presidency or to a to‐be‐appointed Trial Chamber,” he said.
Appeals Chamber Presiding Judge Akua Kuenyehia together with Judges Sang Hyun Song, Erkki Kourula, Anita Usack and Daniel David Ntanda Nsereko, will decide if the four Kenyans will be tried for crimes against humanity at the ICC.
Ocampo who observed that the appeals are likely to delay the trials has raised concerns and cautioned against exposing the identity of the anonymous witnesses used during the confirmation of charges hearings last year.
“In addition, postponement of the trial proceedings will serve the interests of prospective witnesses, who otherwise would have to be identified – thus implicating their security and triggering the need for greater protective measures – before there is certainty that the trial will proceed,” Ocampo asserted.
He noted that since the four were not in detention and did not oppose delay pending the appellate resolution, “there is no countervailing interest pressing for the prompt commencement of trial proceedings.”
Should the cases proceed to trial, Ocampo will reveal the identity of his anonymous witnesses.
In view of the appeals and complications around it, Ocampo asked for the implementation of the witness protection measures to ensure anonymous witnesses are insulated from attacks or exposure.
“The prosecution also notes that in light of the exceptional circumstances of the Kenya case – the fundamental nature of the issue being appealed and the significant and complicated need to implement witness protection measures – the presidency or a Trial Chamber might nonetheless deem it to be in the interest of justice not to start the trial proceedings before the Appeals Chamber makes a final determination on whether this case falls within the jurisdiction of the court,” he explained.
The four accused appealed last week seeking leave to appeal from the Pre Trial Chamber and another application challenging jurisdiction in the Appeals Chamber.
The Kenyan trials will only start after the Appeals Chamber and the Pre Trial Chamber give their ruling on the two appeals.