The prosecution and legal representatives of the victims in the Kenya cases do not object to moving the trials at The Hague-based International Criminal Court (ICC) to either Arusha, Tanzania or a location within Kenya, except for one important caveat: what they say are the high security risks of such a venue change.

They believe moving the trials from The Hague would put witnesses at greater risk, especially when they testify in court, as well as put the victims themselves at risk. They also think those risks could threaten the integrity of the trials.

The prosecution and victims’ representatives raised these issues in responses to the applications by the accused in the Kenya cases to the Presidency of the ICC to change the venue of the trials. The accused said that they are applying for a change of venue to bring the trials closer home, arguing that it best serves the interest of justice. This is something the prosecution and victims accept, with conditions

ICC Prosecutor Fatou Bensouda, in her responses to the applications in Kenya case one and case two, stated that a pre-condition for moving the venue of the trials was the safety and security of witnesses, victims, and ICC staff. With reference to the security of witnesses and victims, Bensouda referred the judges to previous filings on the matter. In her response to the issue of venue in Kenya case two – the case against Uhuru Muigai Kenyatta, Bensouda highlighted some of her security concerns. This is something she did not do for Kenya case one against William Samoei Ruto and Joshua arap Sang.

Those concerns “include the extra-judicial killings and forced disappearances of individuals with direct knowledge of the Accused’s involvement in the post-election violence, perceived Prosecution witnesses being threatened not to testify against the Accused, and the persistent and systematic attempts, including by individuals holding themselves out as associates of the Accused, to bribe and/or threaten witnesses not to testify at trial or to provide false exculpatory testimony,” Bensouda said. She noted she was worried this would become worse if the trial moved to Kenya, or to a lesser extent, if the trial was moved to Arusha.

Bensouda, however, did suggest that the court could partially hold the trials in East Africa. She proposed the court holds   the opening and/or closing statements, testimonies of the accused, and the testimonies of international experts in Arusha or Kenya.

“Hearings of this nature could strike the right balance between bringing the trial as close as possible to the affected region and thus satisfy the public interest in the case, and the need to protect witnesses,” Bensouda said. “If so desired, the Chamber might also be able to use these opportunities to visit locations of relevance to the case in the presence of the parties (“site visits”).”

Lawyers for victims in both cases stated that the overwhelming majority of their clients did not want the trials moved from The Hague. They, however, made differing submissions on the issue. Wilfred Nderitu, the lawyer for the victims in the Ruto and Sang case, stated that 82 percent of his clients wanted the trials to remain in The Hague. One reason they gave was if the trial was held in Kenya, then the accused or their sympathizers could mobilize “truck loads” of supporters to attend court proceedings and most likely intimidate witnesses and victims.

“This view was in allusion to a common phenomenon in Kenya in the 1980s and 1990s, where powerful individuals charged with criminal offences would mobilize scores of supporters ethnically or politically affiliated to them to attend court, in the hope that they would intimidate the presiding officer of the court to make decisions favourable to the persons charged,” Nderitu explained in his submission. He, however, submitted to the judges that he thought they should consider changing the venue of the trial to Arusha.

Nderitu’s submission is unusual because usually a lawyer argues what his client(s) has instructed him to present. He, however, gave reasons for his approach. He said that the court’s ruling that where he cannot represent his clients’ in person then a representative of the Office of the Public Counsel for Victims would do so has limited his ability to effectively present his clients’ views. Nderitu gave as an example the fact that he was unable to attend in person the status conference in February this year, something he believes he would have been able to if the proceedings were taking place in Arusha. Nderitu’s limited travel to The Hague is partly due to an inelastic budget the court has provided and that he has to work with.

“It is the Victims’ Representative (submission) that a change of the place for trial to Arusha, Tanzania, would greatly mitigate the challenges faced by him in attempting to facilitate a meaningful participation by, and representation of, victims within an extremely limited budget, particularly having regard to the number of victims he represents, and the number of field visits expected to be made by him and his Team in order to ensure effective representation,” Nderitu said.

Fergal Gaynor, who represents the victims in the Kenyatta case, noted that 97.4 percent of his clients preferred the trial to be held in The Hague. He, however, acknowledged that several academics had observed that holding trials near where the crimes had been committed helped “ensure that the local communities are familiar with the trial proceedings, have a greater sense of ownership of that process, and helps to reduce the perception of the Court as being a ‘foreign’ court.” However, he also noted that those commentators also emphasized the security of witnesses and the impartiality of the process is paramount.

“In the present case, holding the trial in Arusha or in Kenya would present security challenges which threaten the integrity of the trial process,” Gaynor said in his submission. He asked that the court hold the trial in The Hague.

Marc Dubuisson, in submissions on behalf of the Registry on the Case One and Case Two applications, noted that as of the end of February 2013, Kenya had not signed or ratified the Agreement of Privileges and Immunities with the Court, which is a key factor in the ability of the ICC working in any country. He noted that Kenya had, however, exchanged letters covering the issue of privileges and immunities. This was done during a September 2010 visit the then ICC Registrar Silvana Arbia made to Kenya and met with the Cabinet committee that dealt with ICC matters. In the case of Tanzania, which hosts the International Criminal Tribunal for Rwanda (ICTR), the government has signed the Agreement of Privileges and Immunities, but it has not ratified it. Nor had Tanzania replied, as of March 8 this year, to a letter Arbia had sent them.

Other matters, such as a security assessment, which is necessary for moving the trial venue, staffing requirements, logistics, and costs cannot be determined until the court decides whether the full proceedings of the trials will be held at The Hague, or only part of them, Dubuisson said.

He suggested that the court use the facilities of the ICTR, if a decision was made to move the trials away from The Hague. Dubuisson said that this would be dependent on the agreement of both the ICTR and the Tanzanian government, which hosts the tribunal.

He concluded with suggestion that the court limits its proceedings outside The Hague to “two relatively short periods of 3-4 weeks maximum during which the opening statements and specific witnesses could be called to testify respectively.”

Going by the submissions the Registry and prosecution made, it is a possibility that a limited number of sessions may be held at the facilities of the ICTR. However, this all depends on the judges’ recommendations to the ICC Presidency.

This is not the first time the issue of the venue of proceedings has been raised in the Kenya cases. It was first broached ahead of the confirmation of charges hearings, which took place in September and October 2011. The Presidency at the time did not communicate any specific decision. The Single Judge of Pre-Trial Chamber II, Ekatrina Trendafilova, did note in a June 29, 2011 decision that the chamber would not consider holding those hearings in Kenya but forwarded the submissions of all involved to the Presidency, who would make a final decision on the matter. Nothing further was heard on the issue from the court, and the 2011 hearings were held at The Hague.