Correcting My Recent Post on Ruto’s Public Criticism of the OTP

by Kevin Jon Heller

The ICC’s Public Affairs Unit has brought to my attention that the Sudan Tribune erroneously reported what Judge Chile Eboe-Osuji said to Ruto concerning his public statements about his case. The unofficial transcript makes clear that although the Judge warned Ruto not to make additional statements, he did not suggest that Ruto would be arrested if he did so:

7 It has been brought to our attention that the defendant, Mr Ruto,
8 had granted an interview to a news outlet, in of course of which he made
9 comments on the matters pending before the court. This is a matter that
10 had arisen in the past and the Chamber cautioned that Mr Ruto is to
11 refrain from making comments to the press on the case pending before this
12 Chamber. It has happened again, and counsel for Mr Ruto explained that
13 it was a mistake, and he, on behalf of Mr Ruto, apologised without any
14 reservation and he has undertaken, that is Mr Khan, to work out an
15 arrangement by which there would be no further comments on the case
16 pending before this Court, comments by Mr Ruto. For now, the Chamber
17 will accept the apology as well as the undertaking of counsel. The
18 Chamber will not issue any sanction on this occasion, but the Chamber
19 will repeat its earlier warning that Mr Ruto is not to comment on this
20 case pending before the Court.
21 We expect that this warning will be respected, and we expect that
22 the counsel will live up to his undertaking to do all that he can to
23 ensure that this doesn’t happen again.
24 That is the ruling of the Chamber.

My apologies to the Court and to Judge Eboe-Osuji for republishing the Sudan Tribune‘s erroneous reporting regarding Ruto’s possible arrest.

That said, I stand behind my claim that the Court has no authority under the Rome Statute to silence Ruto, much less impose some kind of sanction against him if he continues to criticize the prosecution’s case. The Public Affairs Unit notes that the Trial Chamber warned both the prosecution and the defence not to comment publicly, but that does not change the analysis: unlike the prosecution and defence counsel, the accused is not bound by the Code of Professional Conduct. Moreover, although the prosecution has to respect the presumption of innocence, no correlative obligation binds the accused. Ruto thus remains free to say whatever he wants.

NOTE: The threat of arrest was also erroneously reported by the Kenyan Daily Post.

3 Responses

  1. You must not speak of “THE” court when you deal with the failures of a single judge in his presiding function, Kevin.

  2. Of course I can speak of “the Court” when a judge acts on its behalf — particularly “a single judge in his presiding function.” In such a situation, the judge represents, and speaks for, the Court. 

  3. It is actually the role and the DUTY of commentary and critique to distinguish these two functions. Netly and astutely.

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