On What Basis Can the ICC Silence Ruto?

The Sudan Tribune is reporting that the presiding judge in William Ruto’s trial has threatened to have Ruto arrested if he continues to comment publicly on his case:

October 2013 (THE HAGUE) – Kenya’s Vice President William Ruto was on Friday warned by the presiding judge in his trial at the International Criminal Court (ICC) to desist from making statements about the case in the media or risk being arrested and detained.

‘‘The first time this happened [making statement in the media] his counsel [Ruto’s] apologised and said it was a mistake said Judge Chile Eboe-Osuji.

Judge Chile Eboe-Osuji, a Nigerian, cautioned Ruto that if he does not heed to the warning, he could be arrested and detained by the court in The Hague.

The warning comes two weeks after Ruto addressed a press conference in The Hague in which he attacked the court and the prosecutor.

‘‘It’s abundantly clear to us and that’s why we have filed several applications that this case as it runs should be terminated. The prosecution has failed miserably in its responsibility to discharge the mandate assigned to them under the Rome Statute,” he said.

This a shocking threat — and a completely unacceptable one. Nothing in the Rome Statute or the Rules of Procedure and Evidence prohibits Ruto from commenting on his case — much less authorizes the Trial Chamber to have him arrested for doing so. There are only two even vaguely relevant provision of the Rome Statute, Articles 70 and 71, and neither prohibits comments like the one above. Article 70 deals with offences against the administration of justice, and does not prohibit criticizing the strength of the prosecution’s case:

Article 70Offences against the administration of justice1.         The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally:

(a)     Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth;

(b)     Presenting evidence that the party knows is false or forged;

(c)     Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence;

(d)     Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties;

(e)     Retaliating against an official of the Court on account of duties performed by that or another official;

(f)     Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties.

Article 71, in turn, addresses misconduct before the court:

Article 71Sanctions for misconduct before the Court1.         The Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence.

I suppose it’s arguable that Ruto could be guilty of “misconduct” if he failed to comply with a direction from the Trial Chamber not to comment about his case. But there are two problems with invoking Article 71 in this context. First, the provision necessarily presupposes that the Court has the authority to issue the direction in question — and again, nothing in the Rome Statute permits a Trial Chamber to silence an accused. Second, and more importantly, the Rules of Procedure and Evidence do not permit the Court to arrest someone who engages in misconduct. Here is the text of Rule 171(1):

When the misconduct consists of deliberate refusal to comply with an oral or written direction by the Court, not covered by rule 170 [covering disruptions of trial proceedings], and that direction is accompanied by a warning of sanctions in case of breach, the Presiding Judge of the Chamber dealing with the matter may order the interdiction of that person from the proceedings for a period not exceeding 30 days or, if the misconduct is of a more serious nature, impose a fine.

Finally, although the Trial Chamber does not have the power to silence or arrest Ruto, his defence counsel may be in a different situation, because of Article 24 of the ICC’s Code of Professional Conduct for Counsel:

Article 24
Duties towards the Court

1. Counsel shall take all necessary steps to ensure that his or her actions or those of counsel’s assistants or staff are not prejudicial to the ongoing proceedings and do not bring the Court into disrepute.

I would argue that Ruto’s statement at the press conference, had it been made by his counsel, would not violate Article 24. Criticizing the strength of the prosecution’s evidence neither prejudices Ruto’s case nor brings the Court into disrepute. That said, I would not be surprised if the Court took the contrary position. The Registry at the ICTY threatened me with contempt on at least three occasions while I was serving as one of Radovan Karadzic’s legal associates, each time for blog posts I had written criticizing OTP conduct or decisions by the Pre-Trial Chamber. My response was always the same: they should formally charge me, so we could settle the matter in court. The Registry backed down every time.

That said, defence counsel do indeed face stricter limits on what they can say than their clients — and rightfully so. Although Ruto is free to continue to criticize the prosecution, his counsel would be well advised to be more circumspect.

Hat-Tip: OUP’s Merel Alstein.