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June 22, 2011

Victims oppose holding the confirmation of charges hearing in Kenya

By Timothy Synhaeve

Since the entry into force of the Rome Statute, there have been numerous calls for the Court to make use of its power to sit closer to where the crimes have taken place.[1] So far, the Court considered holding in situ hearings in four cases, however such hearings are yet to take place. In the case of Thomas Lubanga Dyilo, Trial Chamber I did not succeed to obtain the consent of the Democratic Republic of Congo (DRC).[2] The Chamber explained that the DRC deemed it ‘inappropriate as it could lead to ethnic tensions in an area that had been recently pacified and is potentially unstable’.

On 7 October 2009, Trial Chamber III held that it considered holding in situ hearings in the Bemba case, and requested the parties and participants to submit observations.[3] Both the Prosecution and the Legal Representatives of Victims argued that in situ hearings would raise awareness, maximize the deterrence impact of the Court, and advance victims’ right to access to justice.[4] In addition, they suggested that it would contribute to the transparency of the proceedings and enhance the perception of the impartiality of the proceedings. Nevertheless, they emphasized that witnesses should benefit from protective measures and that the in situ hearings shouldn’t coincide with the upcoming elections. However, in this case as well, no in situ hearings have yet taken place.

Very recently, Pre-Trial Chamber II (PTC II) also announced that it was in the process of assessing the desirability and feasibility of conducting the confirmation of charges hearings of the suspects in the two Kenyan cases on the territory of the Republic of Kenya.[5] While the NGO No Peace without Justice unsuccessfully  requested to intervene as amicus with regards to how in situ hearings would facilitate the right of victims to participate in proceedings in an effective and efficient way,[6] both the Prosecution and the Office of the Public Counsel for Victims (OPCV), acting on behalf of the victim applicants, strongly opposed holding the confirmation of charges hearings in Kenya.[7] They argued that the security situation and governmental apparatus in place are not conducive to a proper hearing. In particular, OPCV claimed that requiring witnesses to testify in person in Kenya would risk disclosure of their identity and could lead to intimidation. Lastly, the OPCV argued that in situ confirmation of charges hearings could increase the danger of an outbreak of violence.

Indeed, while victims remain keen to see the Court move closer to affected communities, guarantees of protection are paramount to transpose the Court’s power to hold in situ hearings into reality. Such an occurrence will largely depend on security conditions in Situation Countries and the ability and willingness of the relevant State to cooperate with the Court and ensure that adequate protection arrangements are in place. In the meantime, in the case of Kenya, victims have made it clear that the advantages of in situ hearings were outweighed by the risks to their security.

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