The Mistrial, An Innovation in International Criminal Law

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Earlier this week, the second Kenyan case at the International Criminal Court came to an end with the granting of a motion by the two accused claiming that there is ‘no case to answer’. This is a pretty standard concept in adversarial proceedings. When the prosecution concludes its evidence and confirms that it has nothing further to add in order to make evidence of guilt, it becomes the turn of the defence to call evidence. But first the defence may contend that the evidence of the prosecution is insufficient to provide the basis for a conviction. If it succeeds, it is in principle entitled to an acquittal on the charges.

In the Ruto and Sang decision, two of three judges agree with the defence that the prosecution evidence is insufficient to establish guilt. The decision is somewhat strange and perhaps even unprecedented in international criminal law in that we have three separate judgments by the three judges. Dissenting judge Carbuccia even claims ‘that the decision of the majority of the Chamber contains insufficient reasoning, since Judge Eboe-Osuji and Judge Fremr have both given separate reason’. But that is clearly wrong because Judge Eboe-Osuji and Judge Fremr agree that there is no case to answer. Furthermore, Judge Eboe-Osuji, in his judgment, says he accepts Judge Fremr’s review of the facts.

The real novelty in this decision is the remedy. According to Judge Eboe-Osuji, it is a ‘mistrial’. Judge Fremr doesn’t use the word ‘mistrial’, and he says ‘I do not consider the impact to have been of such a level so as to render the trial null and void’. But he agrees with Judge Eboe-Osuji that it is ‘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’.

The consequence, then, is that the two majority judges agree that the prosecutor has been unable to produce enough evidence to convict but that she should be given a second chance. I suspect that the Prosecutor is very relieved to send the end of the Kenya nightmare and that this will be the last we hear of the situation. Were there ever an attempt to prosecute Ruto and Sang again, they would have strong arguments to challenge the legality of the determination by the majority.

This is the first time that a ‘mistrial’ has been declared in international criminal law. It is a term that is used in common law adversarial proceedings where juries are present and where a trial is in effect aborted and the prosecution given the chance to start anew. I am unaware of any examples of a mistrial outside the context of a jury trial. Presumably if there were any, Judge Eboe-Osuji, who is a meticulous and thorough researcher, as his many constructive and creative opinions demonstrate, would have found them and cited them in his reasons.

The first problem is that there is no notion of a ‘mistrial’ in the Rome Statute, the Rules of Procedure and Evidence, the Regulations of the Court, and previous practice of other international criminal tribunals. When prosecutors and defence counsel have tried to argue that certain procedural mechanisms exist by virtue of article 21, and in the absence of express provision in the Rome Statute, they have met with rejection by the Appeals Chamber. Judge Eboe-Osuji’s contention that this novel and hitherto unknown concept can be derived from article 64(2) and the duty of a Trial Chamber to ensure a fair trial is not very convincing. His case would be more compelling if he could find examples in national practice for a ‘mistrial’ where the prosecution is unable to make out its case.

Suppose that instead of making a ‘no case to answer’ motion, the defence had simply said it had no evidence to call on its own behalf. In other words, the defence would invite the Trial Chamber to issue a verdict based upon the prosecution’s evidence without calling any of its own witnesses. The result would have to be an acquittal. Why does this tactical decision by the defence put Ruto in a Sang in a position that is inferior to the one that they would be in had their counsel said they had no evidence to call?

Perhaps, according to Judge Eboe-Osuji’s theory, the ‘mistrial’ would still be available even at the verdict stage. But it seems extraordinary that a Trial Chamber could decline to issue a verdict of guilty or not guilty and instead declare a ‘mistrial’, thereby inviting the Prosecutor to try again. There is also a serious obstacle to all of this in the Rome Statute itself. Article 20(1) states: ‘Except as provided in this Statute, 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.’

Article 84 of the Rome Statute poses another obstacle. It allows a revision of a judgment of conviction in the event of new evidence being available. There is no similar procedure in the case of acquittal. Allowing the Prosecutor to get a second chance if new evidence comes available is not consistent with this provision and with the vision of the drafters of the Statute. Suppose, for example, that instead of evidence of interference with prosecution witnesses being available at the 'no case to answer' stage, as it is in Ruto in Sang, this only became available after an acquittal, would the Prosecutor be entitled to demand a new trial? This is simply not allowed by the Statute.

Judge Eboe-Osuji is quite right to be shocked at the evidence of interference with the trial but his attempt to find an original remedy is troublesome. He is probably right to see article 70 proceedings for offences against the administration of justice to be an inadequate answer. But it cannot be ruled out that the ‘mistrial’ remedy may actually have the opposite effect. If a trial can be aborted in this way because of interference with witnesses, is that not an invitation to those who do not want justice to run its course? In this case, the defendant clearly would prefer an acquittal to a second trial. But in many cases, the defendant will prefer a second trial to the prospect of a conviction. Those who seek to avoid a conviction have now been provided with a mechanism.

Perhaps at some point another Chamber or another court will have to interpret this judgment. It should be construed as holding that based upon all of the Prosecutor's evidence there is 'no case to answer' and that this is equivalent to an acquittal. That the majority judges attempt to reserve the right of the Prosecutor to start again is not provided for by the Rome Statute and is in fact forbidden by article 20(1). They have gone beyond their authority in so doing. Subject to an appeal by the Prosecutor, Ruto and Sang are 'not guilty'.