ICC Registrar uneasy over poll chaos victims' report

The Registrar of the International Criminal Court is reluctant to release information filed by victims of Kenya’s post-election violence since some of it may be used to identify the applicants.

In a response to the Office of Public Counsel for the Defence and that of the Prosecutor, the Registrar however said that her office was ready to provide an edited version of the report without the sensitive information.

“The Registry notes that the document contains some information which could be used to identity persons who have applied for participation and/or reparations. The non-disclosure of such information to the parties is well established in the jurisprudence of the chamber,” the application filed by Marc Dubuisson on behalf of the Registrar Ms Silvana Arbia says.

She added that some of the information contained in the Victims Participation and Reparations Section’s report on Kenya are “not of a sensitive nature and might be available not only to the Prosecutor and the OPCD but also the public”.

The Registrar also argued that one of the reasons that the documents filed were classified as confidential was because they contained information about the “international workings” of the Registry and if revealed, “may hinder the efficacy or neutrality” of her office’s work or “place at risk those it is engaging with".

OPCD’s Principal Counsel Xavier”Jean Keïta and Prosecutor Luis Moreno-Ocampo, in the last two weeks, filed applications to the court seeking access to a report on victims’ participation that the Registrar filed as confidential.

The two want to be allowed to see the report which details the applications by Kenyan victims to participate in the proceedings as well as assessment of their suitability as victims.

But unlike Mr Moreno-Ocampo who was seeking the entire report, Mr Keita asked the Pre-Trial Chamber II to evaluate all the information and decide on what can be disclosed to other participants.

“The OPCD requests that the Chamber review the content of the relevant documents to determine whether knowledge of them by the participants would defeat their purpose. If not, the OPCD requests that the documents – or portions thereof, as appropriate – should be disclosed to the participants, that is, to the Prosecution and the OPCD,” Mr Keita told the three judges.

In an application filed earlier, the Prosecutor said that he should be allowed access to the report as “the Prosecution does not pose any security threat to persons interacting with the Court.”

The prosecutor said he is concerned that some of his witnesses might also be among the victims who may have filed representations with the Court.

“If the report relates to persons who interact with the prosecution, I must be aware of all facts and circumstances that have an impact on their security, as their protection also falls within the mandate of the prosecution,” the application read.

The application was made just days before Judge Hans-Peter Kaul published his dissenting opinion which accused the prosecutor of not doing thorough investigations.

Judge Kaul appeared to suggest that Mr Moreno-Ocampo had not conducted independent investigations and relied on the same human rights reports that he had earlier presented to support his case.

He added that the prosecutor had failed to prove that the crimes fall within the jurisdiction of the ICC since he had based his application on “excerpts or a series of sentences, selected from witness statements, reports, press articles and other material.”

“The Prosecutor supported his application, to a large extent, with the same public reports of non-governmental organizations and commissions that he already submitted on 26 November 2009 when seeking the chamber’s authorisation for the commencement of the investigation into the situation in the Republic of Kenya pursuant to article 15 of the Statute,” the German judge said.

The judge’s opinion and the prosecutor’s move could act as fodder for the defence as it would argue that Mr Moreno-Ocampo was using the opportunity to use the victims’ representations to strengthen his case instead of conducting investigations.

On February 4, the ICC Registrar filed its first periodic report on the Activities of the VPRS in the Kenyan Situation. On 24 February 2011, the Prosecution was put on notice that the Registry had filed the Report and two annexes.

The Report and the two annexes remain ex parte only available to the Registry. According to the Registry they were filed under that classification as they concern “an internal communication between the Chamber and the Registry”.

On November 3 last year, the Pre-Trial Chamber II ordered the VPRS to report every three months on the applications received and the progress made on their assessment. The section was also ordered to perform an analysis of victims applications to include an assessment as to which applications might be accepted, rejected, or raise difficult issues.

The final decision on which victims to be allowed will be determined by the Pre-Trial Chamber judges.