Human Rights Watch: Ruto's ICC case is incredibly important

In December 2014, the International Criminal Court (ICC) dropped charges against Kenyan President Uhuru Kenyatta, as Chief Prosecutor Fatou Besouda failed to produce enough evidence for the trial to go ahead. Now his deputy, Ruto and journalist Sang are the last of the accused to still stand trial. The 2007-2008 post-election violence in Kenya left over 1,000 people dead and over 600,000 people displaced.

DW spoke to Elizabeth Evenson, senior counsel in the International Justice Program at Human Rights Watch in Brussels to take a closer look at Tuesday’s hearings.

DW: What exactly does the motion of no-case to answer mean in simple terms?

Elizabeth Evenson: It’s actually the first time that this has been used at the International Criminal Court. But something similar has been used at other international tribunals. What it means is that it’s sort of the half-time of the trial. The prosecution has presented its case against Deputy President Ruto and against Joshua Sang. The defense has asked the judges to find that the prosecution simply hasn’t presented enough evidence and that the case should just be ended now. So they’re basically saying that no matter what kind of weight is given to the prosecution’s evidence in the final counting up by the judges, there’s just not enough there to convict and not enough there, as a result, for the defense to be forced to go through and put on their own case.

In his written submissions to the ICC, Ruto claims that the court has failed to prove its case against him. As a legal expert, what's your take on that?

This is exactly what is now going to be up to the trial chamber to decide. What we’ve seen so far is that both defendants have asked for the case to be dismissed. The prosecution has responded to say that it has put forward enough evidence to get over this motion and it’s important to say that what’s happening now is very different from what could happen once all the evidence is in, if the case does go forward. At this point in time, the purpose of the motion is more limited. It’s to look to see whether the prosecution has put forward enough evidence such that if it is given credit by the judges, there is a reasonable basis on which they could convict. So it’s not saying, at this point in time there is enough evidence to convict. It’s saying that at this point in time there is enough evidence that there is a reason to go forward and to have the defense challenge that evidence.

The ICC appeals chamber will also rule on whether the court's chief prosecutor Fatou Bensouda can rely on prior recorded testimony - how crucial is this evidence to Ruto's case?

The trial chamber has already accepted into evidence the prior recorded testimony of four or five witnesses, four of whom testified in court but then took back some of the critical aspects of their testimony. One other witness didn’t show up for court. The trial chamber allowed that evidence in because it found that there was reason to believe that these individuals had been subject to witness interference. For example that there had been efforts to bribe these witnesses to change and retract their testimony.

The trial chambers decision to allow that evidence into testimony is what’s up for appeal. The appeals chamber is looking at it to see if there was a proper application of the rule that allows this kind of evidence to come before the trial chamber. At the moment though, that evidence is on the record, so my expectation is that it will be considered by the trail chamber for this ‘No case to answer’ motion, subject to some decision from the appeals chamber, saying that it was incorrect for them to include that into the record.

What are the chances that the ICC will drop charges against Ruto like it did to President Uhuru Kenyatta?

Well they’re at two different points in time. The decision by the ICC prosecutor to withdraw charges against President Kenyatta was taken before the start of trial. That was based on the prosecutor’s decision that she could no longer rely on some very important witnesses. It was also based on, as she termed it, the government’s non-cooperation in coming forward with information. This is something now for the judges to consider. The prosecution here has said it’s put forward enough evidence, such that defense does need to mount a case and the trial needs to run until the end. So it’s impossible to predict. We just have to wait and see. It’s a decision that only the judges can make.

How important is this case to ICC Chief Prosecutor Fatou Bensouda, bearing in mind that she has already lost the Kenyatta case.

I can’t say how important it is to the ICC prosecutor. Certainly this is an incredibly important case when we talk about accountability for the post-election violence that took place in Kenya. At the moment this case against the deputy president and his co-defendant Joshua Sang is really the only case that is proceeding in court to try to get to the bottom of what happened. And at the same time, the reason why this case and the one against President Kenyatta were at the ICC in the first place, is because there really haven’t been any justice efforts in Kenya. So the ICC has stepped as a court of last resort. So what’s important is that the case be allowed to run its course, whatever the judges decide. But that it be allowed to run its course and that the judges be allowed to take independent decisions about how to manage this case.

Elizabeth Evenson is senior counsel in the International Justice Program at Human Rights Watch in Brussels.