08 Apr The Ruto Trial Chamber Invents the Mistrial Without Prejudice
As readers no doubt know, on Tuesday the ICC’s Trial Chamber declared a “mistrial” in the case against William Ruto and Joshua Arap Sang. The decision likely puts an end to the fiasco of the Ocampo Six — now the “Ocampo Zero,” to borrow Mark Kersten’s nicely-turned expression — although the Trial Chamber dismissed the charges “without prejudice,” leaving the door open for the OTP to prosecute Ruto and Sang again if its evidence ever becomes stronger.
The decision is obviously terrible for the OTP. And it is difficult not to feel sympathy for its plight: although I fully agree with the majority that no reasonable finder of fact could convict Ruto and Sang on the evidence presented during the OTP’s case-in-chief, Kenya has consistently refused to cooperate with the Court (despite its treaty obligations under the Rome Statute) and the allegations that pro-Ruto and Sang forces intimidated (and perhaps even killed) witnesses seem well-founded. In the absence of those serious limitations on its ability to investigate, it is certainly possible the OTP might have been able to establish a case to answer.
In this (extremely long) post, however, I want to address a different issue: the majority’s decision to declare a mistrial and dismiss the charges against Ruto and Sang without prejudice, instead of entering a judgment of acquittal. That is very much a distinction with a difference: had the majority acquitted Ruto and Sang, the OTP could not prosecute them again for the same conduct, because Art. 20 of the Rome Statute — the ne bis in idem provision — specifically provides that “no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.”
My question is this: where did the majority get the idea it could declare a mistrial instead of granting the defence’s no-case-to-answer motion? Unfortunately, Neither Judge Fremr nor Judge Eboe-Osuji provide a convincing answer to that question. On the contrary, they have simply invented the possibility of a mistrial in order to leave open the possibility of Ruto and Sang being re-prosecuted.
At the outset, it needs to be acknowledged that nothing in the Rome Statute specifically permits either no-case-to-answer motions or mistrials. Despite that silence, the OTP and the OPCV agreed with the defence that the Trial Chamber’s right to consider a no-case-to-answer motion at the close of the OTP’s case-in-chief is inherent in Art. 64 of the Rome Statute. (Bipartisanship!) The Trial Chamber concurred and articulated the following standard for finding no case to answer (para. 23):
[T]he objective of the ‘no case to answer’ assessment is to ascertain whether the Prosecution has lead sufficient evidence to necessitate a defence case, failing which the accused is to be acquitted on one or more of the counts before commencing that stage of the trial. It therefore considers that the test to be applied for a ‘no case to answer’ determination is whether or not, on the basis of a prima facie assessment of the evidence, there is a case, in the sense of whether there is sufficient evidence introduced on which, if accepted, a reasonable Trial Chamber could convict the accused.
Notice the language: according to the Trial Chamber (and consistent with all other international tribunals), the result of a successful no-case-to-answer motion is acquittal. A thorough search of the ICC’s records indicates that at no point in time did the Trial Chamber ever mention the possibility that it could declare a mistrial instead — much less one without prejudice. Indeed, in Tuesday’s decision, Judge Fremr reiterated that a successful no-case-to-answer motion necessarily results in acquittal (para. 19):
[I]f the Chamber, after assessing the evidence in accordance with the above-stated standard, comes to the conclusion after the Prosecution has finished calling its evidence that it could not support a conviction beyond reasonable doubt, then it should enter an acquittal and therewith end the proceedings even if it were possible for a different trier of fact to be satisfied beyond reasonable doubt of the guilt of the accused on the basis of the same evidence. This is consistent with the rationale of ‘no case to answer’ litigation. Continuing proceedings in such circumstances would be contrary to the rights of the accused, whose trial should not continue beyond the moment that it has become evident that no finding of guilt beyond all reasonable doubt can follow.
Not surprisingly, both Ruto and Sang filed no-case-to-answer motions at the close of the OTP’s case-in-chief. And in Tuesday’s decision, both Judge Fremr and Judge Eboe-Esuji conclude that, in fact, no reasonable finder of fact could convict Ruto or Sang on the basis of the OTP’s evidence. Here is Judge Fremr (para. 1):
[I]t is my view that at the present stage of the proceedings, after the Office of the Prosecutor (‘Prosecution’) has closed its case, there is no case to answer for the two accused. Accordingly, in my view, the charges against Mr Ruto and Mr Sang are to be vacated and the accused discharged from this case.
And here is Judge Eboe-Osuji (para. 1):
I have read the reasons of my highly esteemed colleague, Judge Fremr. The evidential review laid out in his reasons amply shows that the case for the Prosecution has been apparently weak. To keep the length of my own reasons more manageable, I need conduct no further evidential review. I fully adopt the evidential review set out in Judge Fremr’s reasons. It is, in my view, fully borne out by the legal principles that should guide decisions on no case to answer motions in this Court.
So Ruto and Sang are acquitted, right?
Wrong. As noted above, Judge Fremr and Judge Eboe-Osuji declare a mistrial without prejudice instead, making it possible for the OTP to prosecute Ruto and Sang again if its evidence ever gets better. And “ever” means “ever”: given that there is no statute of limitations for international crimes, Ruto and Sang will now spend the rest of their lives facing retrial on the same charges that the OTP failed to prove so spectacularly that no reasonable fact-finder could convict them.
Interestingly, Judge Fremr would have preferred a different outcome (para. 148):
Notwithstanding my above remark that in a normal state of affairs, I would have been in favour of entering an acquittal, rather than vacating the charges against both Mr Ruto and Mr Sang and discharging them, I can agree to this outcome, because of the special circumstances of the case. Although it has not been shown, or argued, that the accused were involved in the interference of witnesses, they did profit from the interference, inter alia, by the falling away of several key witnesses that this Chamber found to have been interfered with. Other evidence may have been available to the Prosecution – including evidence that possibly would demonstrate the accused’s innocence of the charges – had it been able to prosecute the case in a different climate, less hostile to the Prosecution, its witnesses, and the Court in general. Noting the overly strict wording of Article 20 of the Statute, which is no longer in line with the contemporary criminal laws of numerous national jurisdictions, I therefore find it appropriate to leave open the opportunity to re-prosecute the accused, should any new evidence that was not available to the Prosecution at the time of the present case, warrant such a course of action.
I feel some sympathy for Judge Fremr, because — reading between the lines — Judge Eboe-Osuji seems to have presented him with two equally-unpalatable options: go along with the mistrial or let the case proceed to trial. But Judge Fremr’s statement is still troubling in a number of respects. First, there is the open acknowledgment that the OTP never claimed that Ruto and Sang were personally responsible for interfering with witnesses, which undermines any argument in favour of a mistrial instead of an acquittal. I’ll return to that issue below. Second, there is the idle speculation that the OTP’s case might have been stronger if witnesses had not been interfered with. Probably true — but so what? No-case-to-answer motions are decided on the evidence the OTP actually presented, not on the basis of hypothetical evidence the OTP might (or might not) have discovered in a more cordial investigative environment. (Imagine how strong the case could have been if the Security Council had sanctioned Kenya for its non-cooperation!) Third, there is the cavalier dismissal of Art. 20. Perhaps the Rome Statute’s ne bis in idem provision is “no longer in line with the contemporary criminal laws of numerous national jurisdictions.” Again — so what? The ICC’s judges are bound “in the first place” by the Rome Statute the drafters wrote, not by the Rome Statute they wish the drafters had written. Judge Fremr clearly recognised the implications of Art. 20 in the context of the Ruto and Sang case; he simply didn’t like those implications. So he ignored the Article. That is judicial activism, pure and simple.
Judge Fremr’s opinion is the picture of judicial modesty, however, in comparison to Judge Eboe-Osuji’s. Like Judge Fremr, Judge Eboe-Osuji acknowledges that there is no evidence that either Ruto or Sang is responsible for the witness interference that he believes fatally undermined the OTP’s case:
153. Now, it must be made clear that there was no evidence to the effect that Mr Ruto or Mr Sang had instructed or encouraged anyone to engage in witness interference. The Prosecution acknowledged that gap in the evidence.
154. But it must also be pointed out that the appearance of credible evidence showing that an accused in a criminal case had in fact instigated interference or meddling, with the view to frustrating the inquiry, would potentially engage a more onerous outcome for such an accused than the mere declaration of mistrial without prejudice to re-prosecution. At a minimum, such evidence may afford the basis for an inference at half-time that there is a case for the accused to answer: on the theory that it was the consciousness of the existence of such a case that drove him to interfere with the witnesses for the Prosecution or disrupt the process through political meddling. Worse still, it is also possible that evidence showing that the accused had engaged in interference may be a basis to draw an inference of consciousness of guilt, depending on the circumstances.
It’s self-evident that a mistrial without prejudice would have been warranted if Ruto or Sang were responsible for interfering with witnesses. As Judge Eboe-Osuji rightly points out (para. 154), a defendant cannot be allowed to undermine the OTP’s case and then seek acquittal through a no-case-to-answer motion. But that does not mean a defendant should not be entitled to the benefits of a successful no-case motion simply because the Trial Chamber believes the actions of unrelated third parties might have prevented the OTP from developing a stronger case. Yet that is precisely what Judge Eboe-Osuji holds (para. 7):
Where there have been conducts in the nature of obstruction of justice, such as troubling incidence of interference with witnesses or undue meddling from an outside source, that is capable of prejudicial impact on the case, it should be a proper discretion on the Trial Chamber to declare a mistrial without prejudice. This is so even in the absence of evidence showing that the accused played any part in the interference or meddling. This means that the presumption of innocence remains unperturbed for the accused: but so too for the Prosecution the freedom to re-prosecute the accused at a later time without the constraint of double jeopardy. In the circumstances of the present case, this is the more appropriate and just basis upon which to terminate the trial.
There are a number of problems with Judge Eboe-Osuji’s position. The first is its procedural irregularity. Judge Eboe-Osuji acknowledges that the Rome Statute is silent about the possibility of mistrial, but finds that power — like the Trial Chamber’s power to acquit on the basis of a no-case-to-answer motion) inherent in Art. 64 of the Rome Statute and in the judicial function more generally:
190. The unusualness of the disposition will no doubt engage the question of the source of a Trial Chamber’s power to declare a mistrial, given that there are no words spelling out the power in those precise terms either in the Rome Statute or in the Rules of Procedure and Evidence. But, a Trial Chamber’s power to declare a mistrial is easy enough to see. It follows by necessary implication from the imperatives of article 64(2) combined with article 4(1) of the Rome Statute, which imposes upon the Chamber an obligation to ensure a fair trial. It is a necessary part of that authority to declare it to be so, if factors beyond the remedial power of the Chamber interfere to prevent what could possibly be described as a fair trial. The idea of a ‘fair trial’ — it must be stressed — is an objective notion. A trial must be fair to all the parties and participants in the case — the Defence and the Prosecution alike. And the victims, too.
191. In addition to article 64(2) as an obvious source of the power to declare a mistrial, the power is further supported by the doctrine of incidental or implied powers under international law. In an earlier decision, this Trial Chamber invoked eminent authorities, prominent among which are judgments of the ICJ, including in the Reparation Case, saying that ‘under international law,’ an international body or organisation ‘must be deemed to have those powers’ which, ‘though not expressly provided’ in the constitutive instrument, ‘are conferred upon it by necessary implication as being essential to the performance of its duties.’ Article 4(1) of the Rome Statute is to the same effect.
We can leave aside the odd references to Art. 4(1), which concerns the ICC’s international legal personality, not trial procedure. The more significant problem is that the Trial Chamber never allowed the parties to be heard on whether the Chamber had the power to respond to a successful no-case-to-answer motion by declaring a mistrial instead of acquitting the defendants. There was extensive litigation prior to trial over no-case motions, particularly concerning the result of a successful one — and as noted above, the Trial Chamber ultimately held that the absence of a case to answer would result in full or partial acquittal. But then, when the defence established that there was in fact no case to answer for either Ruto or Sang on any of the charges… mistrial, not acquittal. The defence must be seething: instead of following its own stated rule, the Trial Chamber has simply invented a new power that conveniently (but not coincidentally) keeps the OTP’s case alive forever.
Judge Eboe-Osuji exhibits a vague awareness of the Trial Chamber’s pro-prosecution bait-and-switch. But he’s not troubled by it:
126. The no-case procedure is one that the parties and participants urged and agreed for the Chamber to adopt. Doubtless, the procedure is entirely salutary, in appropriate cases, for its own purposes. But the procedure and the principles that have guided it in other fora (national and international) should not totally eclipse any statutory powers that a Trial Chamber may have pursuant to article 64(2) (as earlier indicated) — to terminate a genuinely weak prosecution case at its closing. In other words, the jurisprudence of no case to answer finds suitable tenancy — but not eminent domain — within the territory of article 64(2). There may be concentric operation between the two legal frameworks. Nevertheless, the no-case case-law does not control the reasonable incidence of article 64(2). In the end, the sensible proposal and agreement of the parties (made at the beginning at the proceedings) resulting in the Chamber’s adoption of principles and procedure to guide the no-case submissions do not constrain the amplitude of statutory powers permitted the Chamber under article 64(2) in its own operation.
This reasoning is eerily reminiscent of United States vs Alvarez-Machain (1992), in which the Supreme Court held — to its lasting discredit — that the existence of an extradition treaty between the US and Mexico did not foreclose the possibility of the US kidnapping the defendant in Mexico instead of trying to extradite him. Sure, Judge Eboe-Osuji says, the Trial Chamber only heard the parties with regard to no-case-to-answer motions and only addressed no-case-to-answer motions in its decision. That doesn’t mean the Trial Chamber can’t read Art. 64 to grant it a completely different power, one that it never mentioned and that completely undermines the decision it issued following extensive litigation. The unfairness to Ruto and Sang is evident — and simply reinforces the (too often justified) narrative that the judiciary is little more than a division of the OTP.
Moreover, even if the Trial Chamber does have the power to order a mistrial, it’s anything but clear that one is appropriate when third parties, not the defendants themselves, make it difficult for the OTP to investigate effectively. (An issue that would have been well-served by briefing…) Judge Eboe-Osuji is aware of that, too — but his defence of the remedy is unconvincing. He not only relies solely on US practice (see paras. 184-187), which is hardly sufficient, the practice he cites actually provides little support for his position. Specifically, Judge Eboe-Osuji does not cite even a single US case in which a mistrial was ordered over the defendant’s objection because of the actions of unrelated third parties. Instead, he simply points out that the Supreme Court has left a measure of discretion to the trial judge to decide when a mistrial without prejudice is warranted. Pretty weak tea. Indeed, having practiced and taught criminal law in the US, I find it exceptionally unlikely that an American judge would declare a mistrial in a similar situation. It’s not exactly uncommon for witnesses to be murdered in organized-crime and narcotics cases, yet judges don’t end trials and give the prosecution a do-over — not in the absence of evidence that the defendant was connected to the wrongdoing.
Judge Eboe-Osuji’s defence of applying such a drastic remedy in the particular circumstances of Ruto and Sang is also problematic. He devotes a mere two paragraphs (paras. 151 and 152) to allegations that third parties directly interfered with witnesses — and he says nothing about witnesses being killed. By contrast, Judge Eboe-Osuji spends literally dozens of paragraphs (see para. 159 et seq.) complaining about indirect witness interference — namely, actions that did not were not intended to intimidate witnesses, but were “reasonably likely” to do so (para. 181). He begins by blaming the government for not embracing the ICC with open arms:
162. The first element that contributed to the creation of an atmosphere of intimidation was the open generation and promotion within Kenya of a strong current of hostility against the ICC processes. These sentiments included those expressed within the Kenyan Parliament during the course of these proceedings, culminating in a vote in September 2013 in favour of withdrawing Kenya from adherence to the Rome Statute.
163. The hostile rhetoric against the Court, a judicially noticeable fact, was also pursued outside of Kenya by the Government in the campaigns to persuade African States Parties to withdraw from the Court, and a petition to the UN Security Council to exercise its powers under article 16 of the Statute to defer the proceedings. It is no defence to say that these actions were perfectly legal under the Statute and in international relations. But, there is a proper time and place for even lawful conducts, lest they occasion wrongful consequences in other respects. A legitimate purpose is hard to see in the urgency with which the Government drove its campaign to withdraw from the Court in the course of the on-going criminal trial. It was open to them to bide their time until the completion of the case. It may be noted that before the commencement of this trial, Kenya was always a State Party to the Rome Statute. They were not known to seek or preach withdrawal from the Rome Statute. Why then the hurry for the sudden drumbeat of withdrawal in the course of the trial? Is it because sacred cows were now on trial and that must not be the case? But, in conducting the campaign as they did, it must have occurred to those engaged in it that they would come across as attempting to bully the Court into dropping a case that the campaigners did not want to go on. And it must also have occurred to them that such an attitude was reasonably likely to intimidate witnesses and their family members, in a manner that would discourage their participation in the trial as Prosecution witnesses.
He then blames the media:
174. A related factor that contributed to the creation of an atmosphere of intimidation is the enthusiastic media reporting of the aggressive conducts discussed above.
175. The media also reported the pressures and security concerns affecting witnesses, including concerns about the unlawful revelation of confidential information concerning the identity of witnesses, and on intimidation, direct threats or incidents of violence against witnesses and their families. Ironically, one of the relevant reports expressed it aptly when it stated: ‘If the first set of witnesses are already being lined up for lynching, what chance is there that any other person required to ensure the ICC process is completed to the satisfaction of suspects as well as victims, would dare stick out their neck?’ That, really, is the essence of the matter. Indeed, in its decision pursuant to rule 68, the Chamber acknowledged the concern that witnesses may have been improperly influenced through pressure exercised by family members to persuade them to cease their involvement in the ICC trial process. I am satisfied that part of the motivation for such pressures from family members was, in turn, in consequence of the pressure they felt from the hostility so clearly expressed by important voices within the country, as widely reported in the media.
These statements are disturbing. Whatever one thinks of how the Kenyan government and media comported themselves during the trial — and I personally think very little — their actions are irrelevant to whether Ruto and Sang should be acquitted because the OTP failed to present an answerable case. Indeed, Judge Eboe-Osuji’s argument essentially consigns the no-case-to-answer motion to irrelevance: when will a government whose officials are being prosecuted by the ICC ever “bide its time” until the case is over? When will a national media not report what powerful government officials say about the trial? And don’t get me started on Judge Eboe-Osuji’s statement that it is “no defence” that Kenya had every right to seek deferral of Ruto and Sang under Art. 16. (Or, for that matter, to encourage AU states to withdraw from the ICC.) That he is willing to hold Kenya’s efforts against Ruto and Sang — and particularly Sang, who is not even part of the Kenyan government — illustrates with almost perfect clarity the indefensibility of his position.
But at least Judge Eboe-Osuji doesn’t pretend that his argument has anything at all to do with Ruto and Sang’s personal culpability. On the contrary, he openly admits that their right not to be put twice in jeopardy is less important than convincing states and third parties to stop being mean to the ICC:
149. The nature and manner of the political spectacle orchestrated against the present case take on a particularly regrettable aspect, given the possibility that the clamour for peremptory termination of the case may merely — and only merely — coincide with a decision that was always possible as the outcome of a no-case motion. But any hope of claiming credit for an acquittal in this case, as a result of political campaigns, was always a figment of the imagination of the campaigners. An acquittal in this case could never have resulted from political pressure. For reasons explained below, such a campaign could only result in a mistrial, in which the Prosecution would have the right to re-prosecute the case. And that is not necessarily an advantage for any accused intended as the beneficiary of such interventions: but it is the least that could be done in the name of justice in the face of such interventions. The message becomes this. When there is an on-going trial in this Court, the best interest of justice, for everyone’s sake, is to leave the lawyers and the judges alone to do their work. Political intervention does not work.
156. A verdict of acquittal is particularly unjustifiable in the circumstances, not only because it will vindicate the illicit objectives of the unseen hands that had engaged in witness interference, the obvious aim of which is to frustrate the trial of the accused; but it may also encourage future unseen hands to interfere with a criminal trial. What was done against this trial… must not become a case study for others inclined to emulate such tactics in future cases of this Court. It may not be too much to speak of such tactics in terms of efforts whose aim is to hold justice hostage, with acquittals of accused persons as the envisaged ransom. Hence, for purposes of a mistrial — resulting from obstruction of justice intended to benefit the accused — it does not matter at all that there is no evidence showing the accused as a culprit of the interference. It is enough that the aim of a mistrial is to hold out some hope that justice may be seen to be done sooner or later. And those seeking to obstruct the course of justice, for the benefit of the accused, are made to realise that their efforts will come to nought. On the contrary, it may in the end only inconveniently prolong the process for the accused, as it does for the prosecution and the victims. No one is the winner. But declaration of mistrial and allowing the case to start afresh in the future is better than rewarding the interference and political meddling with a verdict of acquittal.
Shorter Judge Eboe-Osuji: Sorry, Mr Ruto. Sorry, Mr Sang. We might have acquitted you because you have no case to answer. But we can’t, because unnamed others have not shown proper deference to these proceedings. You have to face re-trial in order to ensure that those unnamed others — and unnamed others who might be inclined to emulate them — behave better in the future.
Call this the Eric Cartman theory of the mistrial: “Respect mah authoritah!”
And remember: those unnamed third parties don’t have to intend to interfere with witnesses. On the contrary, Judge Eboe-Osuji points out repeatedly that it is enough for third parties to be negligent with regard to the possible consequences of their actions. Here is just one example:
164. It is also not a defence to say that the hostile campaign was not intended to intimidate witnesses. It is enough that it was reasonably likely to have that effect.
I will end this very lengthy post with Judge Eboe-Osuji’s comment in para. 156, ostensibly offered in defence of his position, that “[i]t is enough that the aim of a mistrial is to hold out some hope that justice may be seen to be done sooner or later.” That comment perfectly encapsulates Judge Eboe-Osuji’s disregard for Ruto and Sang’s right to a fair trial. Yes, the OTP failed to introduce evidence strong enough to overcome a no-case-to-answer motion. Yes, we have no way of knowing whether the OTP would have survived a no-case motion in the absence of the witness intimidation. Yes, there is no evidence, nor even a claim by the OTP, that Ruto and Sang were responsible for directly or indirectly intimidating witnesses. Yes, the mistrial means that the spectre of re-prosecution will hang over Ruto and Sang literally for the rest of their lives. None of that matters. They cannot be acquitted because there is a possibility — purely speculative, to be sure — that the OTP might have survived a no-case-to-answer motion if unnamed and unrelated others had not interfered with witnesses and been generally mean to the Court. We have to give the OTP a do-over.
A number of states have refused to ratify the Rome Statute because they fear the OTP’s ability to initiate investigations and prosecutions proprio motu. If we have learned anything over the past few years, however, the real threat to the fairness of trials — and to the ICC’s legitimacy more generally — comes from the judiciary, not from the OTP. The Trial Chamber’s purely result-driven decision to invent the “mistrial without prejudice” in Ruto and Sang simply throws another log on an already smoldering fire.
NOTE: An astute friend has pointed out that Judge Fremr never specifically says he agrees with Judge Eboe-Osuji that a mistrial is warranted — which is why the decision simply states on the first page that “[t]he charges against the accused are vacated and the accused discharged without prejudice to their prosecution afresh in future.” But that’s just semantic gamesmanship. The Trial Chamber could not have decided to grant the no-case-to-answer motions, because it previously held that a successful no-case motion requires acquittal. So the Trial Chamber either ordered a mistrial or entered some other kind of order that leads to the same result a as a mistrial. The precise name is irrelevant; the fact remains that the Trial Chamber has ordered a mistrial in name or in substance. The analysis above applies regardless.