Judges of the International Criminal Court (ICC) declined to consider a request by victims in the case against Deputy President William Samoei Ruto and former journalist Joshua arap Sang to determine if the Kenyan government should provide them reparations or order the Trust Fund for Victims (TFV) to provide them with assistance.

Trial Chamber V(a) said in a 2-1 decision that the chamber no longer has the jurisdiction to decide the matter because the trial against Ruto and Sang was terminated on April 5. Judges Robert Fremr and Olga Herrera Carbuccia reasoned in the July 1 decision that because the case was closed without any conviction, the chamber cannot make any ruling on the issue of reparation.

Presiding Judge Chile Eboe-Osuji dissented, elaborating his reasoning on the issue of reparations he made in his decision to terminate the case Ruto and Sang.

On April 5, Trial Chamber V(a) determined, in a majority ruling, that Ruto and Sang did not need to present their defense because the prosecution’s case had broken down. The decision noted that witness interference made it difficult for the judges to evaluate the evidence presented by the prosecution. The majority of the chamber, however, was divided on whether to declare a mistrial.

Since September 2013, Ruto and Sang were each on trial for three counts of crimes against humanity for their alleged roles in violence that nearly split Kenya following the December 2007 presidential election.

Trial Chamber V(a) made its decision on reparations in response to a June 15 application filed by the legal representative of victims, Wilfred Nderitu, asking the chamber to find that the Kenyan government has an obligation to provide reparations to the victims of the post election violence of December 2007 to February 2008. Nderitu also asked the chamber to order the TFV to provide the victims with assistance in line with its mandate.

Judges Fremr and Carbuccia said once the case was terminated, the chamber, “cannot take any decision on reparation matters related to the Ruto and Sang case under Article 75 of the Statute.” Article 75 of the ICC’s founding law sets out provisions on reparation for victims.

The two judges do not make any comments on the victims’ views on reparations. They only question whether the chamber is the right place for those views to be addressed.

“Indeed, there are no pending proceedings related to the harm allegedly suffered by the victims of the post-electoral violence before this Court, let alone this Chamber,” wrote the judges.

“The Majority understands that while ‘this must be dissatisfactory to the victims, a criminal court can only address compensation or harm suffered as a result of crimes if such crimes have been found to have taken place and the person standing trial for his or her participation in those crimes is found guilty’,” the judges concluded. The quotation marks in the quote have been used by the judges because they are repeating word for word what Judge Fremr had expressed in his decision to terminate the case against Ruto and Sang.

Judge Eboe-Osuji strongly disagreed with his fellow judges, beginning his dissenting opinion with a quote from a 1989 dissenting opinion from US Supreme Court Judge Harry A. Blackmun in which Blackmun charges the majority of retreating “into sterile formalism”.

“With respect, I see no convincing basis in law for the idea that an ICC Trial Chamber may not entertain questions of reparation merely because the accused they tried was not found guilty,” wrote Judge Eboe-Osuji.

“The reasoning is precisely of the kind that Justice Blackmun had lamented as retreating ‘into a sterile formalism’ in a manner that is inimical to the ‘dictates of fundamental justice’,” he continued.

“In my view, such formalistic approach could never supply a convincing system of reasoning that prevents an ICC Trial Chamber from entertaining questions of reparations in the absence of conviction,” the judge wrote.

“And this is especially so in a case, as the Ruto and Sang trial, in which there was never a question that the victims suffered harm – to the contrary, all the parties and the Government of Kenya had accepted that the victims suffered harm,” said Judge Eboe-Osuji.

The presiding judge of Trial Chamber V(a) observed that unlike other international criminal courts that preceded it and were “virtually exclusively concerned with punitive justice,” the ICC has a more expansive scope, “specially because this Court’s Statute actively recognizes the need to administer reparative justice, too.”

“This, thus begets a particular international legal norm that must be handled with care, in order to do justice according to it. It necessarily requires that the strand of reparative justice be isolated with care and given its own specific value, when it is possible to do so without unfair prejudice to the rights of the accused persons. Anything less will be to diminish the place of reparative justice as an integral part of administration of justice in this Court,” Judge Eboe-Osuji explained.

He further explained that Article 75 lays out broad principles on the issue of reparation, but the specifics have been left to judges to determine.

“There are no words of limitation that circumscribe the circumstances in which those principles may need to be established and in which they may be brought to bear in the administration of justice in the broader sense that includes reparative justice,” Judge Eboe-Osuji said.

“Those circumstances do not then preclude from their contemplation the termination of proceedings either upon an acquittal or on the basis that there had been no case made out for the accused to answer at the close of the case for the prosecution,” the judge concluded.

Judge Eboe-Osuji argued that because the decision to terminate the case against Ruto and Sang was on the basis of no case to answer motions, which was a first for the ICC, then it was necessary for the chamber to have considered whether there were principles of reparation that could have been set for such a situation.

“And to do that, it is important to consider not only the views and concerns of the victims, but also to receive submissions from the Trust Fund for Victims, as well as concerned State Parties,” the judge said.

“Putting it simply, it is highly unusual for judges to foreclose the inquiry at hand – let alone take a firm position that no question concerning reparation can be considered – without having heard and considered submissions on the matter. Regrettably, that is the effect of the decision of my esteemed colleagues. I cannot join them in it,” Judge Eboe-Osuji concluded.

Judge Eboe-Osuji also addressed the observations of the TFV made in the fund’s application for leave to submits observations to the application Nderitu had filed. Judges Fremr and Carbuccia do not make any comments on those observations. However, in their majority decision, they did determine that Nderitu and the fund no longer have standing to make requests before the chamber in the context of Ruto and Sang case.