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C o u rP n a l e j / ^ - ^ \I n t e r n a t i o n a l e imI n t e r n a t i o n a l ^ ^ ^ ^C r i m i n a lC o u r t

O r i g i n a l : E n g l i s h N o . : I C C - 0 1 / 09 - 0 2 /1 1D a t e : 3 J u l y 2 0 1 3

T R I A L C H A M B E R V( B)

B e f o re : J u d g e K u n i k o O z a k i , P r e s i d i n g J u d g eJ u d g e R o b e r t F r e m rJ u d g e C h i l e E b o e - O s u j i

S I T U A T I O N I N T H E R E P U B L IC O F K E N Y A

I N T H E C A S E O FT H E P R O S E C U T O R v . U H U R U M U I G A I K E NY A TT A

P u b l i c

D e c i s i o n c o n c e r n i n g t h e G o v e m m e n t o f K e n y a ' s S u b m i s s i o n s o n i t s c o o p e r a t i o n w i t ht h e C o u r t

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Decision to be notified, in accordance with Regulation 31 of the Regulations of the Court, to:Th e Office of the Pros ecuto r Co unse l for the Defen ceMs Fatou Bensouda Mr Steven KayMr James Stewart Ms Gillian Higg insMs Adesola A deboyejoLegal Repres entatives of V ictimsMr Fergal Gaynor

Legal Representatives of Applicants

Unrepresented Victims Unrepresented Applicants forParticipation/Reparation

The Office of Public Counsel forVictimsMs Paolina M assidda

The Office of Public Counsel for theDefence

States RepresentativesMr Githu Muigai, Attorney General,Republic of Kenya

Amicus Curiae

REGISTRYRegistrarMr Herman von H ebel Deputy Registrar

Victims and W itnesses Unit Detention Section

Victims Participation and Repa rations Oth ersSection

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Tr ia l Ch am be r V(B) ( "Chamber" )^ o f t he In t emat iona l Cr imina l C our t ( "Cour t " ) , i n t hecase of The Prosecutor v. Uhuru Mu igai Kenyatta, ha vi n g r eg ar d to A rticle s 64(2), 64(6)(f)and 87(7) of the Rome Statute ("Statute"), Rule 103(1) of the Rules of Procedure andEvidence ("Rules"), and Regulat ions 24(3), 31 and 109(3) of the Regulat ions of theCourt ("Regula t ions") i ssues the fol lowing Decision concerning the Government ofKenya 's Submissions on i t s coopera t ion wi th the Court ("Decision") .

I . P roc edu ra l h i s to ry1. On 8 Ap ri l 2013, the Go verrun ent of the Rep ubl ic of Ken ya ("Kenyan

Government" ) f i l ed the "Government o f Kenya ' s Submiss ions on the S ta tus o fCoopera t ion wi th the Internat ional Criminal Court , or , in the a l te rnat ive .Ap pl ica t ion for Leave to f ile Ob serva t ions p ur su an t to Rule 103 (1) of the Rules ofP roce dure an d Eviden ce" ( "Submissions" ) .^

2. In the Submissions, the Kenyan Government se t for th responses to a l legat ions ofnon-coopera t ion ra ised by the Off ice of the Prosecutor ("Prosecut ion") in var iouspubl i c f i l i ngs and s t a t ement s . The Kenyan Government a sse r t ed tha t i t wasent i t led to f ile the Sub miss ions p ur su an t to Par t 9 of the Sta tute , Regula t ion 24(3)of the R egu lat io ns an d the audi alteram partem principle.^ In the al terna tive, i tsought leave to f i le observat ions pursuant to Rule 103(1) of the Rules and for thesubstant ive par ts of the Submissions to be t rea ted as those observat ions.^

3. On 24 Apr i l 2013 , t he Cham ber ru led tha t a s t he Keny an G ov em m en t i s no t apa r ty to o r pa r t i c ipan t in the cur ren t p roceed ings , l eave w as requ i red pu rsu an t t oRule 103(1) of the Rules in order for i t to fi le observations.^ The Chamber grantedthis leave and accepted the substant ive par ts of the Submissions as the Kenyan

Where "C ham ber" is used in this decision it refers to both the Trial Chamber V in its composition as until 21 May2013 and to Trial Chamber V(B) as composed by the Presidency's Decision constituting Trial Chamber V(a) andTrial Chamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto and Joshua ArapSang and The Prosecutor v. Uhuru Muigai Kenyatta, 21 May 2013, ICC-01/09-02/11-739.^ ICC-01/09-02/11-713.^ ICC-01/09-02/11-713, paras 13-14.^ ICC-01/09-02/11-713, para. 14.^ Decision on the Govemment of Kenya's application for leave to file observations pursuant to Rule 103(1) of theRules of Procedure and Evidence, ICC-01/09-02/11-725, para. 2.N o . ICC-01/09-02/11 3/8 3 Ju ly 2013

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G ove rnm en t's o bserv ations for the pu rpo ses of Rule 103(1) of the Rules.^ In thesame decision, the Chamber directed the parties and participants to submit anyresponse to the Kenyan G overn m ent's observations w ithin 14 days.^

4. The Com mo n Legal Representative for V ictims ("Legal Repres entative") filed h isresponse on 6 May 2013.^ The Prosecution filed its response on 8 May 2013("Response").^ The defence team for Mr Kenyatta did not file a response.

5. On 24 May 2013, the Registry transmitted to the Chamber a request from theKenyan G overn m ent seeking firstly, leave to reply to the Response an d, secondlyin the event leave is granted, an extension of the time limit specified inRegulation 34(c) of the Regulations to allow the reply to be filed within ten daysof notification of the Chamber's decision.^^

6. On 30 May 2013, the Cham ber gr anted the Kenyan G overn m ent leave to file areply to the Response within 10 days of notification of the decision.^^ The replywa s duly filed on 10 June 2013.^^

7. This Decision add resses tw o procedu ral requ ests m ade by the K enyanGovernment in the Submissions and by the Prosecution in the Response.

8. As noted in its decision of 30 May 2013 granting leave to reply, the C hamber isnot presently seized of any application for a ruling in respect of the KenyanGovernment's compliance with its obligations under Part 9 of the Statute.Accordingly the Chamber does not make any substantive findings on that issuein this Decision.

^ ICC-01/09-02/11-725, para.2.^ ICC-01/09-02/11-725, para. 3.^ Victim's Response to the Govemment of Kenya's Submissions on the Status of Cooperation with the IntemationalCriminal Court, ICC-01/09-02/11-731.^ Prosecution Response to the "Gov emm ent o f Kenya 's Subm issions on the Status of Cooperation with theIntemational Criminal Court, or, in the altemative. Application for Leave to file Observations pursuant to Rule103(1) of the Rules of Procedure and Evidence" (ICC-01/09-02/11-713), ICC-01/09-02/11-733-Conf-Exp. A publicredacted version was filed on 10 May 201 3.^ Registry Transmission of a document received from the Govemment of the Republic of Kenya, represented bythe Attomey G eneral of Kenya, ICC -01/09-02/11-743 and Annex 1 thereto. The leave request was filed as a publicdocument. On 27 May 2013, the Registry transmitted a confidential ex-parte, Kenyan Govemment and Prosecutiononly, version of the leave request to the Chamber. ICC-01/09-02/11-745-Conf-Exp and Annex 1 thereto." Decision granting the Govemment of Kenya leave to reply, ICC-01/09-02/11-746.^ Reply by the Govemment of Kenya to the "Prosecution response to the 'Govemment of Kenya's Submissions onthe Status of Cooperation with the Intemational Criminal Court or, in the altemative. Application for Leave to fileObservations pursuant to Rule 103(1) of the Rules of Procedure and Evidence' (ICC-01/09-02/11-713)", ICC-01/09-02/11-755.No. ICC-01/09-02/11 4/8 3 Ju ly 2013

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II . Kenyan Government ' s reques tA. Submissions

9. The Keny an Gove rnm ent requests the Chamber to issue an order to the partiesand participants in the Kenya situation requiring that applications or complaintsof non-cooperation by the Kenyan Government be made "on notice" so as toensure that it is m ade aw are of and can resp ond to the application or complaint.^^It expresses concern about the Prosecution's approach of "alleging non-cooperation and delaying tactics" in support of its legal submissions andrequested relief without affording the Kenyan Government an opportunity torespond.^^ It subm its tha t requ iring these k inds of allegations to be m ade "onnotice" would "enhance the decision making process of the Trial Chamber andalso be condu cive to pub lic ord er in Kenya."^^

10. The Prosecution submits that since the Kenyan Government has been providedwith ample notice of the Prosecution's dissatisfaction regarding the level ofcooperation, the requ est so ught is moo t and should be denied. ^ It submits tha tthere is "no need to impose a notification requirement that would inform the[Kenyan Government] of what it already knows". ^ The Prosecution furthersubmits that as the Kenyan Government is not a party to or participant in thecurrent proceed ings, it can only be notified within the m eanin g of Regulation 31of the Reg ulations, if its intere sts are imp licated. ^ The Prose cutionacknowledges, however, that in the event of any future litigation pursuant toArticle 87(7) of the Statute the Kenyan Government should be given theopportunity to be heard.^^

^ ICC-01/09-02/11-713, paras 15, 46.^ ICC-01/09-02/11-713, para. 23 .* ICC-01/09-02/11-713, para. 15.^ ICC-/01/09-02/11-733-Red, paras 42-44.* ICC-/01/09-02/11-733-Red, para. 44.* ICC-/01/09-02/11-733-Red, para. 45.^ ICC-/01/09-02/11-733-Red, para. 45.N o. ICC-01/09-02/11 5/8 3 Ju ly 2013

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B. Analysis11. The Kenyan Government does not identify any specific legal basis for its request

for notification. However, the request can be understood to be made on the samebasis as the Kenyan Government's assertion that it is entitled to respond toallegations of non-cooperation made in the proceedings, namely Part 9 of theStatute, Regulation 24(3) of the Regulations and the audi alteram partemprinciple.^^ The C ham ber ha s alrea dy rejected this ass ertion in its decision of 24April 2013, whereby it ruled that, as the Kenyan Government is not a party to orparticipant in the proceedings, it required leave pursuant to Rule 103(1) of theRules to file submissions in response to the P rosecution 's pa st allegations of non-cooperation. The terminology of filing a motion "on notice" as it is used in theSubmissions implies a general requirement upon a party to litigation to informan opposing party of request for relief made to the judges in the case. Strictlyspeaking, that requirement does not apply in order to inform non-parties to thelitigation of requests or other filings made in the case. Given that the KenyaGovernment is not a party or participant to the present proceedings, the noticerequirement does not apply to it as a general matter.

12. As acknowledged by the Prosecution, different considerations would apply inthe event of an application for a finding of non-cooperation and referral to theAssembly of State Parties pursuant to Article 87(7) of the Statute. As expresslyrecognised in Regulation 109(3) of the Regulations, the Kenyan Governmentwould have a right to be heard in such a case. It would be entitled to be notifiedof relevant filings and to submit responses in accordance with Regulations 24(1)and 31 of the R egulations.

13. In the present circumstances, however, where no such application has been filedthe Chamber finds that the Kenyan Government has no express right under theCourt's statutory framework to be notified of filings which include submissionsrelating to its coo peration.

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14. Notwithstanding the above, the Chamber agrees with the Kenyan Governmentthat in circumstances where allegations of non-cooperation are relied upon insupport of a request for relief, hearing from the Kenyan G overnm ent m ay be ofbenefit to the Chamber's determination of the request and to its overall duty,under Article 64(2) of the Statute, to ensure a fair and expeditious trial.^^ Formalnotification will ensure that the Kenyan Government is informed of relevantfilings in a timely way and can determine whether to submit a request for leaveto file observations in response pursuant to Rule 103(1) of the Rules. This findingis w ithou t prejudice to the Prose cution's right p urs uan t to Regulation 23 bis{l) ofthe Regulations to designate relevant filings as confidential or confidential exparte not to be notified to the Kenyan Government. In such cases, a redactedversion should be notified to the Kenyan Government, wherever possible.

III. Prosecution 's reque stA. Submissions

15. The Prosecution asserts th at the Subm issions publicly disclosed the existence andvolume of Prosecution requests for assistance, as well as the specific informationreq ues ted. ^ It sub m its that publicatio n of th is info rm ation violates therequirement in Article 87(3) of the Statute for requests for cooperation to be keptconfidential and requests the Chamber to caution the Kenyan Governmentregarding Article 87(3)'s confidentiality requirement.^^ The Prosecution explainsthat it has included references to the confidential information in the publicversion of the Response on the grounds that "further confidential treatment isnot warranted, since the prejudice caused by the disclosure is irreversible".^^

16. In its request for leave to reply to the Response, the Kenyan Governmentapologises for what it terms an "inadvertent disclosure" and assures the

^ Article 64(2) of the Statute.^ ICC-/01/09-02/11-733-Red, para. 39.^ ICC-/01/09-02/11-733-Red, paras 39-41.^ ICC-/01/09-02/11-733-Red, para. 7.N o. ICC-01/09-02/11 7/8 3 Ju ly 2013

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Chamber that it "will proceed with the appropriate and necessary caution" whenreferring to confidential requests for assistance in the future.B. Analysis

17. In light of the apology and assurance provided by the Kenyan Government, theProsecution's request for a caution can be considered moot and need not be ruledupon by the Chamber.

F O R T H E F O R E G O I N G R E A S O N S , T H E C H A M B E R :

DIRECTS the parties and participants to request notification of relevant filings tothe Kenyan Gov ernm ent in accordance with par agr aph 14 of the presen t Decision;andDISMISSES as moot the Prosecution's request for the Chamber to caution theKenyan Government in relation to the confidentiality requirement in Article 87(3) ofthe Statute.

Done in both English and F rench, the English version being au thoritative .

iJudge Kuniko Ozaki , Presiding

Judg e Robe rt Fremr Judge Ciiile Eboe-Osuji

D ated 3 July 2013At The Hagu e, The N etherlands

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