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Original : En gl is h No . : ICC-01/09-01/11Date : 3S e p t e m b e r 2 01 3

T RI A L CH A M BE R V ( A )

Be f or e : Ju d g e Ch i l e E b o e - O su j i , P r e s i d i n g Ju d g eJudge Olga Her re ra Carbucc iaJu d g e Ro b e r t F r e m r

S I T U A T I O N IN THE REPUBLICOFK E N Y AI N THECA S EOF

T HE P R O S E C U T O R v.W I L L IA M S A M O E I R U T O A N D J O S H U A A R A PSANG

Publ ic redac ted

De c i s i o n on theP r o s e c u t i o n 's R e q u e s t s to Add NewW i t n e s s e s to its ListofW i t n e s se s

No . ICC-01/09-01/11 1/15 3S e p t e m b e r 2 01 3

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Trial Chamber V(A) (the 'Chamber') of the International Criminal Court , in the case of TheProsecutor v. William Samoei Ruto and Joshua Arap Sang, p u rs u an t to A rticles 64, 67 an d 68 ofthe Rome Statute (the 'Statute ') and Rules 76 and 84 of the Rules of Procedure andEvidence (the 'Rules') , issues the following Decision on the Prosecution's Requests to AddN ew W itnesses to i ts List of Witnesses.

I . P rocedura l Back groun d and Subm iss ions1. O n 2 A ug us t 2013, the Office of the Pros ecu tor (the 'Pros ecu tion ') filed, ex parte.

Prosecution and the Vict ims and Witnesses Unit ( 'VWU') only, the 'Prosecution'sfourth request pursuant to Regulat ion 35(2) of the Regulat ions of the Court ' ,^ in whichit sought authorisat ion to include two new witnesses on i ts l ist of witnesses and adducetheir evidence at trial.^ On 7 Aug us t 2013, the Ch am ber d ism issed the aforem entionedex parte requ est w itho ut prejudice on the basis that the ad dit io n of witne sses m ightimpact on the fair t r ial rights of the accused and the defence teams for the accusedshould thus be provided an opportuni ty to respond to the request , cont rary to themanner of relief sought by the Prosecution.^Filings and subm issions related to the request to add P-604 to the Prosec ution's list of witness

2. On 13 A ug ust 2013, the Prosecution - in i ts ow n wo rd s - ' re-fi led'^ the 'Pros ecutio n'sfourth request pursuant to Regulat ion 35(2) of the Regulat ions of the Court ' ( the'Fou rth R equ est ') ex parte. Prosecu tion a nd VW U only, as well as a confidentialredac ted v ersion of it.^ The req uest w as acc om panied by an ex parte annex . Prosecu tion

ÎCC-01/09-01/11-837-Conf-Exp.ÎCC-01/09-01/11-837-Conf-Exp, paras1 and 43(a).^ Decision on the Prosecu tion's Request to Add Two W itnesses to its List of Witnesses, ICC-01/09-01/11-843-Conf-Exp, para. 3.ÎCC-01/09-01/11-852-Conf-Red, para. 10.^ ICC-01/09-01/11-852-Conf-Exp and ICC-01/09-01/11-852-Conf-Red, respectively.N o.ICC-01/09-01/11 3/15 3 Se pt em be r 2013

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and VWU only, of which a confidential redacted version was fi led on 22 August 2013,^In the Fourth Request , the Prosecut ion only sought authorisa t ion to add one newperson to i ts witness l ist , but ' reserve[d] i tself the right to make an addit ionalapplicat ion for the sec ond w itness once this is possible' .^ The Prose cution sub mits thatthe evidence of the proposed new witness, [REDACTED]. It further submits that therequest to add P-604 to the witness list is filed after the 9 January 2013 disclosuredeadline [REDACTED] and that this results from 'circumstances outside thePros ecution 's con trol '.^ It argue s that [REDACTED] is in the in terests of just ice asdenying the request would send a wrong message to those who t ry to dera i l theCourt 's cases, and would deprive the Chamber of cri t ical evidence for theestablishment of the truth.^ In addit ion, the Prosecution submits that the addit ion of P-604 to the witness l ist wil l not cause ' i rreparable prejudice ' to the defence for Mr Rutoand Mr Sang (the 'Defence ') as [REDACTED] the information that P-604 wouldprovide is not 'novel ' . In ord er to allow the Defence sufficient time to c on du ctinvest igations with respect to P-604, the Prosecution suggests that i t wil l not include P-604 as one of th e first 20 wit ne ss es at trial.^^

3. In the requested relief, besides the request for authorisat ion to produce the evidence ofP-604 by way of test imony at t rial and to add his statements and annexes to theProsecution's l ist of evidence, the Prosecution also requests the Chamber to issue i tsdecision ex parte. Prose cution and V WU on ly, unti l securi ty m eas ure s have been

6 Fourth Request, ICC -01/09-01/11-852-Conf-Red, para. 15.^Fourth Request, ICC-01/09-01/11-852-Conf-Red, para. 15.^Fourth Request, ICC-01/09-01/11-852-Conf-Red, para. 12.^Fourth Request, ICC-01/09-01/11-852-Conf-Red, paras21-23.Fourth Request, ICC-01/09-01/11-852-Conf-Red, para. 24.* Fourth Request, ICC-01/09-01/11-852-Conf-Red, paras 25-26.N o.ICC-01/09-01/11 4/15 3 Se pt em be r 2013

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implemented.^^ xhe lat ter request was redacted in the confidential redacted version ofthe F ou rth Request.^^

4. On 16 Au gu st 2013, the defence for Mr Ruto (the 'Ru to Defence ') op po sed th e Fou rthRequest . I t submitted that the Prosecution fai led to provide information on the basis ofwhich i t can be properly assessed whether [REDACTED]. As such, the Chamber 's'abil i ty to arrive at the trut h' is not affected [REDACTED ]. The Ru to Defence sub mitsthat the late addit ion of a new witness would result in 'serious prejudice ' to theDefence as the new wi tness would need to be ' thoroughly and r igorously 'investigated.^^ It co nte nd s tha t the Defence is entitled to kn ow the case again st th eaccused and to have carried out the necessary invest igations prior to thecommencement of trial.^^

5. In add it ion, the Ru to Defence subm its that the Prose cution sho uld hav e disclosed theinformation related to P-604 as i t is material to the preparat ion of the Defence. Itsubm its that incrimin atory information is also subject to disclosure un de r Rule 17 ofthe Rules, and further that i t is highly unlikely that the information provided by P-604did no t include a ny PEXO material.^^ It therefore req ues ts the C ham ber to orde r th eimm ediate disclo sure pu rs ua nt to Rule 11 of the Rules of the statem ents an d associatedmaterial of P-604, as well as the other person identified by the Prosecution[REDACTED].

^ Fourth Request, ICC-01/09-01/11-852-Conf-Exp, para. 27.^ Fourth Request, ICC-01/09-01/11-852-Conf-Red, para. 27.^ ICC-01/09-01/860-Conf, paras 16-19.^ ICC-01/09-01/860-Conf, paras 17 and 21 .^ ICC-01/09-01/860-Conf, para. 22.^ ICC-01/09-01/860-Conf, paras 23-24.'^ ICC-01/09-01/860-Conf, para. 28.No . ICC-01/09-01/11 5/15 3 Se pt em be r 2013

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6. On 23 A ug us t 2013, the Prosec ution fi led a requ est for leave to reply to the R utoDefence 's response to the Fourth Request ( 'Leave to Reply Request ') ,^arguing that thereque st by the Ruto Defence for the Cham ber to order, pu rs ua nt to Rule 11 of theRules, immediate disclosure of materials related to P-604 [REDACTED] consti tutes anew issue on which the C ham ber sho uld receive subm issions by the Prosecution beforedeciding on the request.^o

7. On tha t same da y, the defence for Mr Sang (the 'Sang Defence ') filed i ts respo nse to theFou rth Req uest , opp osin g it. ^ The Sang Defence sub mits th at the Pros ecution couldhav e inc lude d P-604 in i ts witn ess l ist by 9 Janu ary 2013, [REDACTED].^^ Fur therm ore,i t submits that adding a new person to the witness l ist at this late stage would becontrary to the fair trial rights of the accused. The Sang Defence refers to the a decisionby the Trial Chamber in Bemba, holding that in assessing potential prejudice to thedefence , i t can be considered 'whether the informat ion was wi thin the accused 's ownknowledge and whether the defendant would have adequate t ime and fac i l i t ies torespond pr ior to the commencement of t r ia l ' .^ The S ang D efence sub mits that[REDACTED] there would not be adequate t ime to invest igate prior to thecommencement of trial.^^

8. [REDACTED]

Filings and submissions related to the request to add P'613 to the Prosecution's list of witness

^ Prosecution's R equest for Leave to Reply to "Defence response to the Prosecu tion's fourth request pursuant toRegulation 35 (2) of the Regulations of the Court" (ICC-01/09-01/11-860-Conf), ICC-01/09-01/11-870-Con f Leave to Reply Requ est, ICC-01/09-01/11-870-Conf, para. 8.^ Sang Defence R esponse to P rosecution 's fourth request pursuant to R egulation 35(2) of the Regu lations of the Court,ICC-01/09-01/11-872-Conf

^ ICC-01/09-01/11-872-C onf, para. 7.^ ICC-01/09-01/11-872-Conf, para. 8.^ ICC-01/09-01/11-872-Conf, para. 8.N o.ICC-01/09-01/11 6/15 3 Se pt em be r 2013

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9. On 22 A ug us t 2013, the 'Prosec ution 's fifth requ est pur su an t to Reg ulat ion 35(2) of theRegulations of the Court ' (the 'Fifth Request ') was filed.^^ This request pertains to theaddit ion of P-613 to the Prosecution's witness l ist . [REDACTED] The Fifth Requestrel ies on the same reasoning as the Fourth Request in respect of why the Chambershould gran t the requ est .

10.The Ruto D efence op pos es the Fifth Reques t in its resp ons e filed on 27 Au gu st 2013.^^The Ruto Defence observes that the statement by P-613 disclosed to i t , is heavilyred acte d, leavin g the core of P-613's evid enc e 'hid de n from the Defence'.^^ It there foreargu es tha t the P rosecu tion h as fai led to sub stantiate [REDACTED].^^ As to possibleprejudice to the Defence, the Ruto Defence submits that the Fifth Request has to beconsidered a longside the pending Fourth Request . In add i t ion to the submissionsmade in response to the Fourth Request , i t submits tha t i f the Chamber were to grantthe Fifth Request , the Defence should be given an opportunity to review the profferedevidence within the context of the current evidence. It argues that since the 'key,incriminatory aspects ' are redacted in the redacted versions of the statements of P-604and P-613, the inves t igative w ork could on ly really start once full disclos ure iseffectuated for bo th witnesses.^ [REDA CTED]

11 .The Ruto D efence req ues ts that the Fifth Requ est be rejected. As subsid iary relief, itrequests that if the Chamber grants the Fourth Request and/or Fifth Request , i t wouldadjourn the trial for three months from the date of the disclosure of the unredactedstatements of P-604 and P-613, in order to be able to adequately prepare for trial.^^

ICC-01/09-01/1 l-866-Conf-Exp and ICC-01/09-01/11-866-Conf-Red.5^ Defense response to the Prosec ution's fifth request pursuant to Regulation 35(2) of the R egulations of the Court, ICC-01/09-01/11-884-Conf^ ICC-01/09-01/11-884-Conf, para. 6.^ ICC-01/09-01/11-884 -Conf, para. 7.^ ICC-01/09-01/11-884-C onf, para. 11. ICC-01/09-01/11-88 4-Conf, paras 6 and 12.

^ ICC-01/09-01/11-884-Conf, paras 16-17.N o.ICC-01/09-01/11 7/15 3 Se pt em be r 2013

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12.On 28 A ug us t 2013, the San g Defence res po nd ed to the Fifth Request.^^ j t opp oses theFifth Request and in addit ion to the submissions made in response to the FourthRequest , i t submits that the circumstances at the current t ime, very close to thecommencement of t rial , 'are not ripe for the addit ion of new witnesses [ . . . ] and freshincriminatory material '.^^ It contends that if the Fifth Request is granted, it 'will have todeflect i ts at tention to analysing and invest igating [REDACTED] whilst i t is currentlypre par ing i ts op enin g s tatem ent and cross-exam ination of the first witnesses.^^ TheSang Defence further submits that the potential prejudice to the Defence mili tatesagainst granting the Prosecution's request . Prejudice exists according to the SangDefence as, base d on the information ded uce d from the 'heav ily redacted ve rsion' of P-613's statem ents, [REDACTED].^^ Add it ionally, i t sub mits th at the Pro secution has no ttried to lessen the prejudice caused to the Defence by disclosing P-613's statement assoon as possible after the interview [REDACTED], which - according to the SangDefence - the Prosecution was under a separate obligation to do pursuant to Rule 11 ofth e Rules.^^

II .Ana lys i s by the Ch am ber13 .As [REDACTED ] the arg um en ts ad vanc ed to justify the ad dit io n of each to the

Prosecution's l ist of witnesses are mostly the same for both these persons, the Chamberwill analyse the requ ests joint ly.

^ Sang Defence Response to the Prosecution's fifth request pursuant to Regulation 35(2) of the Regulations of theCourt, ICC-01/09-01/11-887-Conf" ICC-01/09-01/11-887-C onf, para. 8.^ ICC-01/09-01/11-887-Conf, para. 8.^ ICC-01/09-01/11-887-Conf, para. 9.^ ICC-01/09-01/11-887-Conf, para. 10.N o.ICC-01/09-01/11 8/15 3 Se pt em be r 2013

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14.The Ch am ber recalls i ts w itho ut prejudice finding that the Defence s hou ld no t be[REDACTED].37

15 .The Ch am ber con siders th at [REDACTED] as a result of circum stances o utside thecontrol of the Prosecution, so long as such addit ions do not cause undue prejudice tothe Defence.

16.The Fo ur th a nd Fifth R equ ests res ult from [REDACTED],^ the C ha m be r is satisfiedthat the circumstances [REDACTED], were outside the Prosecution's control .

17.[REDACTED] The Defence has su bm itted th at the addit io n of P-604 and P-613 wou ldresult in significant prejudice to them. In determining whether to authorise theaddit ion of new witnesses at this stage, the Chamber needs to consider, in part icular,the impact on the right of the accused to have adequate t ime and facil i t ies for thepreparat ion of the defence, as set out in Article 67(l)(b) of the Statute. As regards thisright. Article 64(3)(c) of the Statute stipulates that the Trial Chamber shall provide fordisclosure 'sufficiently in advance of the commencement of the trial to enable adequatepreparat ion for t rial ' . Rule 76 of the Rules requires the Prosecution to provide theDefence with the names of witnesses whom the Prosecution intends to call to test ifyand copies of any prior statements made by those witnesses 'sufficiently in advance toenable the adequate preparat ion of the defence ' .

18 .Relying on a prev iou s decision by the C ham ber on the start da te of t rial , the R utoDefence subm its tha t it shou ld be given three mo nths ad di t ional prep ara t ion t ime fromthe da te of full d isclo sur e of ma terials re lated to P-604 and P-613.^^ Ho w ev er, theChamber recalls that a number of factors warranted the earl ier decision to grant theDefence approximate ly three months ext ra t ime to prepare , and not mere ly the

^ ICC-01/09-01/11-762, para. 36.^^ [REDACTED].^ ICC-01/09-01/11-88 4-Conf, paras 16-17, referring to the ICC -01/09-0 1/11-76 2, para. 92.N o.ICC-01/09-01/11 9/15 3 Se pt em be r 2013

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add it ion of tw o ne w w itnesses to the Prosecu tion's w itness l ist.^ From the t ime th athas elapsed between the confirmation of charges unti l the commencement of t rial , andthe t ime for preparat ion requested by the Defence on earl ier occasions, i t is clear thatthree months cannot be considered the s tandard t ime that should be automat ica l lygranted to enable invest igations with respect to (two) addit ional witnesses. TheChamber therefore considers the Ruto Defence 's re l iance on the Chamber 's previousruling, in which i t granted the Defence a substantial amount of extra t ime for i tsgeneral preparat ions for t rial , misplaced.

19.Fu rtherm ore, the exp ression 'sufficiently in adv anc e' ap pea ring in both Article 64(3)(c)of the Statute and Rule 76 of the Rules is an expression of no fixed meaning. Its aim isto avoid prejudice to the Defence, wh ich is always an issu e that is relat ive in l ight of thepart icular circumstances in which the matter is to be considered. In the circumstancesof the present matter, the Chamber considers that [REDACTED] would not require aconsiderable amount of addit ional invest igations on the part of the Defence regardingthe subject matter of their anticipated test imonies. The Chamber addit ionally notes thata degree of further invest igation would l ikely have been required by the Defence inany case [REDACTED]. However , the Chamber i s mindful tha t besides theinvest igations related to the substance of the anticipated substantive evidence, theDefence will wish to invest igate the persons themselves in order to evaluate theircredibil i ty. The Chamber considers that such invest igations do not necessari ly need totake place prior to the commencement of t rial . [REDACTED] Furthermore, if theProsecution calls P-604 and P-613 towards the end of the prosecution case, theproc eedin gs will leave sufficient t ime to carry out such inv est igation s, thus sufficientlycounterbalancing the result ing prejudice to the rights of the accused.

ICC-01/09-01/11-762, para. 90-94.N o.ICC-01/09-01/11 10/15 3 Se pt em be r 2013

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24 . Given the possibil i ty that the Fourth and Fifth Request may be granted, the Prosecutionthus intends to disclose the identi ty of both new witnesses to the Defence on 11September 2013: one day after the commencement of the trial . The Chamber recalls thati t has previously rejected the Defence 's argument, made in relat ion to an applicat ion bythe Prosecution for delayed disclosure, that delaying the disclosure of witnessidenti t ies beyond the commencement of t rial is in al l circumstances prohibited by thestatutory framework of the Court and by the jurisprudence of the Appeals Chamber.^^However , the Chamber notes tha t the Sta tute and the Rules emphasise disc losure pr iorto the commencement of t r ia l and that the Appeals Chamber he ld tha t disc losureshould ' in principle take place prior to the commencement of t rial ' ,^ as well as that theChamber has considered disclosure after the commencement of t rial to be an'excep tiona l step'.^^

25.The Chamb er has been p rovid ed w i th only a l imi ted basis to de term ine wh ether thealleged risk to the safety of P-604 and P-613 is objective. However, the Chamber ismindfu l of the obligations placed on the Cou rt with respect to the safety a nd sec uri ty ofwitnesses and notes in relat ion to P-604, in part icular, that an assessment by the VWUis pending. Nonetheless, on the basis of the information before i t , the Chamber is notconvinced that exceptional reasons exist that would mili tate in favour of authorisingdisclosure beyond the commencement of t rial on 10 September 2013.

^^ [REDACTED].^ The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr Katanga Againstthe Decision of Trial Chamber II of 22 January 2010 Entitled "Decision on the Modalities of Victim Participation atTrial", 16 July 2010, ICC-01/04-01/07-2288 { KatangaAppeal Judgment'), paras 43 and 45. See also Rule 81(4) of theRules, which provides for the possibility of non-disclosure of the identities of witnesses as a measure to protect theirsafety. This Rule refers to such non-disclosure 'prior to the commencement of the trial'.^ Confidential redacted ve rsion of 'Decision on first prosecution application for delayed d isclosure of witnessidentities', 4 January 2013, ICC-01/09-01/11-531-Conf-Red, para. 29.No . ICC-01/09-01/11 12/15 3 Se pt em be r 2013

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26 .For the foregoing reaso ns, the Cham ber c onsiders tha t disclosure of the identi t ies of P-604 and P-613 should take place as soon as possible, and in any case prior to thecom me ncem ent of t rial , i .e . no later tha n on 9 Septem ber 2013.

Ex pa rte relief27 .As to the P rose cutio n's requ est for part ial ex parte relief in the F ou rth Requ est , the

Ch am ber rejects the re que st to fi le the curre nt decision ex parte. Prose cution and VW Uonly. It would be inappropriate not to notify the Defence of a decision on a pendingrequest that the Defence is aware of, and has responded to, and can thus reasonablyexpect to learn about the Chamber's ruling at the same t ime as the Prosecution.Moreover, the Chamber considers that the Defence is enti t led to be informed of theChamber 's decision on an important mat ter such as the addi t ion of new wi tnesses tothe Prose cution 's l ist of witnesse s close to the com m ence me nt of t rial .

28 .Besides the relief th at w as red acted from the Defence, the Fo urth and Fifth Requ estinclude redactions to sect ions that contain information that forms the basis for theChamber's conclusion that any prejudice to the Defence can be sufficiently mit igated.In order to fully appreciate the Chamber's decision to grant the requests, the Defenceshall be given access to the unredacted versions of the Fourth and Fifth Request . TheCh am ber ord ers th e Prose cution to notify the ex parte versio ns of i ts requests to theDefence at the same moment that i t discloses the identi t ies of P-604 and P-613. If thePro secu tion wis he s to retain any reda ction s to filings ICC-01/09-01/11-852-Conf-Expand ICC-01/09-01/11-866-Conf-Exp, it shall file a separate request, explaining thereasons for such redactions.

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Leave to Reply Request29 .W ith the a ddit io n of P-604 and P-613 to the Prose cution 's l ist of witnesse s, the

Prosecution will have to disclose the materials related to these persons to the Defence.The Ruto Defence 's request to be provided with these materials is therefore moot andso is the Leave to Reply Requ est .

FOR THE FORE GO ING R EAS ON S, THE CHAMBER HEREBYGR AN TS the Fourth Requ est in par t ;GRANTS the Fifth Request ;ORDERS the Prosecution to disclose the identi t ies of P-604 and P-613 as soon as possible,and no later than 12.00 (noon) on 9 Septem ber 2013;DIRECTS the Prosecution to call P-604 and P-613 among the last witnesses of theprosecution case;OR DE RS the Prosec ution to notify to the Defence the ex parte versions of the F our thRequest and the Fifth Request, once the identities of P-604 and P-613 can be disclosed tothe Defence, bu t in any case by 12.00 (noon) on 9 Septemb er 2013; and

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REJECTS all other requests.

Done in both English and French, the English version being authoritat ive. I

Judge CJfiile Eboe-Osuji(Presiding Judge)

^ A - CJudge vj iga Herrera Carbuccia Judg e Rober t F remrDated 3 September 2013At The Hague, The Nether lands

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