ICC-01/09-105 21-09-2012 1/14 RH PT

Original: English No.: ICC-01/09

Date: 21/09/2012

PRE-TRIAL CHAMBER II

Before: Judge Ekaterina Trendafilova, Presiding Judge

Judge Hans-Peter Kaul
Judge Cuno Tarfusser

SITUATION IN THE REPUBLIC OF KENYA

Public Document
with Public Annex A

Application for a ruling on the legality of the arrest of Mr. Dennis Ole Itumbi

Source: Dennis Ole Itumbi, represented by Nicholas Kaufman

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Document to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor Counsel for the Defence

Ms. Fatou Bensouda, Deputy Prosecutor Mr. Nicholas Kaufman
Ms. Cynthia Tai, Trial Lawyer
Ms. Adesola Adeboyejo, Trial Lawyer

Legal Representatives of the Victims Legal Representatives of the Applicants

Unrepresented Victims Unrepresented Applicants

(Participation/Reparation)

The Office of Public Counsel for The Office of Public Counsel for the
Victims Defence

States’ Representatives Amicus Curiae

REGISTRY
Registrar Defence Support Section
Ms. Silvana Arbia

Deputy Registrar

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other

Section

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As a preliminary step to requesting compensation under article 85(1) of the Rome

Statute, Mr. Dennis Ole Itumbi ("the Applicant") hereby requests that the learned

Pre-Trial Chamber rule on the legality of his arrest in the context of an investigation

instigated on the initiative of the Office of the Prosecutor (“OTP”) or, alternatively, in

connection with proceedings at the International Criminal Court (“ICC”).

Relevant Factual Background

1. On 1 September 2011, the confirmation hearings in Kenya case ICC-01/09-

01/11 commenced followed, three weeks thereafter, by the confirmation hearings in

Kenya case ICC-01/09-02/11.

2. On 17 October 2011, the website “Institue for War and Peace Reporting”

published the following comments:

“Prosecutor Luis Moreno Ocampo says the court is conducting investigations on

social media users who are interfering with the justice process, “Those involved in
attacking.. witnesses….we will find them. We are working on these blog people, and
we will get them,” Ocampo told IWPR. “We can prosecute them. I would like to
warn them if they are involved in tampering [with] witnesses they could be [held]
accountable before the ICC.”1

3. On 16 March 2012, the Kenyan digital news website “Standard” reported as

follows:

“Louis Moreno-Ocampo has focused his lenses on the Kenyan case writing a letter
to Attorney General over intimidation of witnesses. In the complaint to the AG,
ICC raised concern over the hacking of email accounts of a person of interest to the
Office of the Prosecutor”.

In the same article, the Kenyan Attorney General – Mr. Githu Muigai (“the Kenyan

Attorney General”) was reported to have stated as follows:

1
http://iwpr.net/report-news/icc-cases-threatened-social-media-leaks (last accessed 20.9.12).

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"The Office of the Prosecutor of the ICC has drawn [the] attention [of] the AG of
Kenya to the following complaints: hacking of email accounts of a person of interest
to the Office of The Prosecutor, intimidation of Office of The Prosecutor witnesses".2

4. On 22 March 2012, at 19:20 or thereabouts, the Applicant was stopped by at

least a dozen gun-toting law enforcement officers while traveling in the Gunthuri

district of Embu, Kenya. After being bundled into the back seat of a police car, the

Applicant was driven to the headquarters of the Central Investigation Department of

the Kenyan police force (“the Kenyan CID”) in Nairobi. At no stage was the

Applicant informed of the statutory basis for his arrest and, instead of being read his

rights, was subjected to a barrage of questions such as why he was “disturbing” ICC

witnesses and whether the laptop which had been seized from him was used for

“hacking”.

5. On 23 March 2012, after spending the night in police detention, without any

access to a lawyer, the Applicant was interviewed by three detectives of the Kenyan

CID. The Applicant recalls that he was interrogated on the following issues:

(i) Whether he knew any ICC Witnesses;

(ii) Whether he was familiar with “RV Pundit” (the username of an individual

frequenting www.nipate.com - a Kenyan internet forum devoted to

contemporaneous politics including developments in the Kenya Situation

at the ICC);

(iii) Whether he was familiar with “True RV” (another username on

www.nipate.com );

(iv) Whether he had hacked the email accounts of ICC witnesses;

(v) Whether he was familiar with the owners of www.nipate.com;

(vi) Whether he had been in contact with any ICC witness;

(vii) Whether he had accessed the ICC website;

(viii) Whether he had in his possession material from the ICC;

2
http://www.standardmedia.co.ke/?articleID=2000054159&pageNo=1 (last accessed on 20.9.12).

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(ix) How he would hack a website, and;

(x) How many ICC witness statements he had in his possession.

6. On 26 September 2012, the Applicant was released from police custody

without having once been brought before a judge for review of the legality or the

conditions of his detention. At no stage was the Applicant presented with a judicial

warrant authorizing his arrest or the subsequent search and seizure executed on his

domestic premises. Only at the conclusion of his interrogation and shortly before his

release, was the Applicant presented with a document which recorded that he had

been arrested on suspicion of having obtained illegal access to confidential

information in contravention of the Kenyan Communications Amendment Act

(2008).3

7. Subsequent to his release, the Applicant was informed by the Kenyan CID as

follows:

(1) that dealings with the investigation against him had stalled pending the

receipt of a formal complaint from the ICC – presumably a statement to be

taken from a representative of the OTP, and;

(2) that the OTP had requested that the Kenyan CID forward it copies of the

Applicant’s interview and the results of the forensic examination of the

Applicant’s electronic media.

8. On 6 September 2012, the Appeals Chamber of the ICC issued the public-

redacted version of its “Decision on the Request for Disqualification of the Prosecutor in

the Investigation against Mr David Nyekorach-Matsanga” in which it noted that the OTP

did not object to making public its confidential investigation being conducted against

the same David Nyekorach-Matsanga (“Matsanga”).4

3
It is interesting to note that the Applicant was not informed that he was suspected of having committed offences
contrary to the Kenyan International Crimes Act (2008).
4
ICC-01/09-96-Red at para. 9.

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9. On 12 September 2012, and in light of the aforementioned decision of the

Appeals Chamber, herein undersigned counsel (“Counsel”) wrote to the current

Prosecutor of the International Criminal Court and asked to know whether the OTP

had initiated a similar investigation against the Applicant for crimes allegedly

committed under article 70 of the Rome Statute.

10. On 13 September 2012, the OTP replied to Counsel stating that it was under no

obligation to inform him as to "the status of any alleged investigation it may or may not be

undertaking".

11. On 19 September 2012, Counsel wrote to the Kenyan Attorney General

requesting that he close the police file concerning the Applicant on the grounds that

there was no case to answer. Furthermore, Counsel requested that the Kenyan

Attorney General forward copies of all correspondence received by the Kenyan

authorities from the OTP which prompted the arrest and subsequent interrogation of

the Applicant.

Relevant Law

12. Article 70 of the Rome Statute which reads as follows:

Offences against the administration of justice

1. The Court shall have jurisdiction over the following offences against its administration
of justice when committed intentionally:
(a) Giving false testimony when under an obligation pursuant to article 69,
paragraph 1, to tell the truth;
(b) Presenting evidence that the party knows is false or forged;
(c) Corruptly influencing a witness, obstructing or interfering with the attendance or
testimony of a witness, retaliating against a witness for giving testimony or
destroying, tampering with or interfering with the collection of evidence;
(d) Impeding, intimidating or corruptly influencing an official of the Court for the
purpose of forcing or persuading the official not to perform, or to perform
improperly, his or her duties;
(e) Retaliating against an official of the Court on account of duties performed by that
or another official;
(f) Soliciting or accepting a bribe as an official of the Court in connection with his or
her official duties.

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2. The principles and procedures governing the Court's exercise of jurisdiction over
offences under this article shall be those provided for in the Rules of Procedure and
Evidence. The conditions for providing international cooperation to the Court with
respect to its proceedings under this article shall be governed by the domestic laws of
the requested State.

13. Rule 162 of the Rules of Procedure and Evidence:

Offences against the administration of justice under article 70

Exercise of jurisdiction
1. Before deciding whether to exercise jurisdiction, the Court may consult with States
Parties that may have jurisdiction over the offence.

2. In making a decision whether or not to exercise jurisdiction, the Court may consider, in
particular:
(a) The availability and effectiveness of prosecution in a State Party;
(b) The seriousness of an offence;
(c) The possible joinder of charges under article 70 with charges under articles 5 to 8;
(d) The need to expedite proceedings;
(e) Links with an ongoing investigation or a trial before the Court; and
(f) Evidentiary considerations.

3. The Court shall give favourable consideration to a request from the host State for a
waiver of the power of the Court to exercise jurisdiction in cases where the host State
considers such a waiver to be of particular importance.

4. If the Court decides not to exercise its jurisdiction, it may request a State Party to
exercise jurisdiction pursuant to article 70, paragraph 4.

14. Rule 163 of the Rules of Procedure and Evidence:

Application of the Statute and the Rules

1. Unless otherwise provided in sub-rules 2 and 3, rule 162 and rules 164 to 169, the
Statute and the Rules shall apply mutatis mutandis to the Court’s investigation,
prosecution and punishment of offences defined in article 70.
2. The provisions of Part 2, and any rules thereunder, shall not apply, with the exception
of article 21.
3. The provisions of Part 10, and any rules thereunder, shall not apply, with the exception
of articles 103, 107, 109 and 111.

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15. Rule 165 of the Rules of Procedure and Evidence:

Investigation, prosecution and trial

1. The Prosecutor may initiate and conduct investigations with respect to the offences
defined in article 70 on his or her own initiative, on the basis of information
communicated by a Chamber or any reliable source.

2. Articles 53 and 59, and any rules thereunder, shall not apply.

16. Rule 167 of the Rules of Procedure and Evidence:

International cooperation and judicial assistance

1. With regard to offences under article 70, the Court may request a State to provide
any form of international cooperation or judicial assistance corresponding to those
forms set forth in Part 9. In any such request, the Court shall indicate that the
basis for the request is an investigation or prosecution of offences under article 70.

2. The conditions for providing international cooperation or judicial assistance to the

Court with respect to offences under article 70 shall be those set forth in article
70, paragraph 2.

17. Article 85(1) of the Rome Statute providing as follows:

Compensation to an arrested or convicted person

1. Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation…

18. Rule 173 of the Rules of Procedure and Evidence which provides as follows:

Request for compensation

1. Anyone seeking compensation on any of the grounds indicated in article 85 shall
submit a request, in writing, to the Presidency, which shall designate a Chamber
composed of three judges to consider the request. These judges shall not have
participated in any earlier judgement of the Court regarding the person making
the request.

2. The request for compensation shall be submitted not later than six months from the
date the person making the request was notified of the decision of the Court
concerning:
(a) The unlawfulness of the arrest or detention under article 85, paragraph 1;
(b) The reversal of the conviction under article 85, paragraph 2;
(c) The existence of a grave and manifest miscarriage of justice under article 85,
paragraph 3.

3. The request shall contain the grounds and the amount of compensation requested.

4. The person requesting compensation shall be entitled to legal assistance.

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Submission

19. Rule 173(2)(a) makes it clear that before the Presidency of the ICC (“the

Presidency”) can be seized of an application for compensation, there is a need for a

prior Court ruling on the legality of an arrest or detention. In cases where detention

occurs as a result of an investigation which is subsequently terminated5 before the

presentation of charges, there will invariably be no ICC decision on the legality of an

arrest which was executed in the course of the same investigation. A ruling in the

present instance is thus essential to give practical effect to the remedy provided for in

article 85(1) of the Rome Statute.

20. In considering, therefore, whether the Applicant is entitled to seek a ruling of

the Presidency on the issue of compensation, the Pre-Trial Chamber, so it is

submitted, will need to consider three questions: (i) whether the Applicant was

arrested in connection with ICC proceedings; (ii) whether the Applicant’s arrest was

illegal, and; (iii) whether the illegality of the arrest need be attributed specifically to

the OTP?

(i) Whether the Applicant was arrested in connection with ICC proceedings?

21. Unless bound by a court order mandating it to maintain confidentiality, the

refusal of the OTP to confirm or deny the existence of an investigation against the

Applicant has neither rhyme nor reason. The former Prosecutor never hid the fact

that he was going to investigate “blog people” and the OTP has recently, by default,

acknowledged the existence of just such an investigation against Matsanga.

Additionally, both the Kenyan Attorney General and the CID detectives

acknowledged that they were acting on a complaint received from the ICC.

22. In any event, the filing of this application will oblige the OTP to respond

within 21 days whereupon, it will either challenge the standing of the Applicant to

petition the Pre-Trial Chamber or deal with the substance of his petition. There can

5
For lack of evidence or a reasonable chance of obtaining a conviction.

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be no doubt that if an investigation is, indeed, being conducted against the Applicant

then he has standing to petition the Court.6 Accordingly, should the OTP adopt the

former route and request that the application be dismissed in limine, it will effectively

be acknowledging that it has never instigated an investigation against the Applicant

with a view to prosecuting him for offences under article 70 of the Rome Statute.

23. If, however, it is true that the OTP has, indeed, requested the transcripts of the

Applicant’s interview and the results of the forensic analysis of his electronic media,

then, logically, it can only be for one of two reasons: either for the purpose of an

ongoing investigation of the Applicant himself or for bolstering the acknowledged

investigation of Matsanga. The Applicant submits that the distinction is irrelevant for

the purpose of article 85(1) which fixes an enforceable right to compensation for

“anyone” who has been the victim of unlawful arrest – regardless of whether he be

deemed a suspect or a potential witness. The only necessary requirement is that the

unlawful arrest or detention be, in some way, causally linked to investigative

proceedings being conducted at the International Criminal Court.

(ii) Whether the Applicant’s arrest was illegal?

24. The facts set out above, which are supported by affidavit,7 make it clear that

the Applicant was denied due process under international law. He was held for four

days in flagrant contravention of article 9 of the International Covenant on Civil and

Political Rights8 which, inter alia, enshrines the basic right of any arrestee to know the

grounds for the deprivation of his liberty and to challenge them before a judge

without delay. 9

6
ICC-01/09-96-Red at para. 17, by way of comparison, where it was acknowledged by the Appeals Chamber that
Matsanga had standing to request the disqualification of the Prosecutor pursuant to article 42(8)(a) of the Rome
Statute.
7
Annex A.
8
Ratified by the Republic of Kenya on 1 May 1972.
9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure
as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him.

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25. The Applicant was arrested and the search and seizure performed on his

premises without him being shown any warrant issued by the Kenyan judiciary.

Indeed, given the lack of clarity surrounding the statutory basis for his arrest, it is not

clear to the Applicant whether he was even suspected of having committed a

“cognizable” offence as defined under Kenyan criminal procedure such that his

arrest could be effected by a police officer without a judicial warrant. Moreover, at no

stage was the Applicant shown any decision of the ICC authorizing the search of his

premises or his interrogation pursuant to the State Cooperation procedure set out in

Part IX of the Rome Statute.

26. Although the Prosecutor is entitled to instigate an investigation under article

70 on his own initiative, the Applicant submits that the correct procedure for

obtaining State cooperation is via the procedure set out rule 167 of the Rules of

Procedure and Evidence which obligates the involvement of the Court. Indeed, the

Court’s power to request cooperation (such as the interrogation of a witness or

suspect or the collection of documentary evidence) is discretionary which implies

that the Court may refuse to exercise such a power if it feels that it is not justified in

the circumstances. In the present instance, the OTP “short-circuited” conventional

procedure, directly and informally petitioning Kenya while side-stepping the

requirement that the Court review the necessity of the cooperation sought.

27. It should be stressed that even if the former Prosecutor was of the view that

the Applicant’s conduct fell foul of article 70 of the Rome Statute, yet felt that the

investigation and subsequent prosecution was a matter best handled by the Kenyan

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It
shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for
execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court,
in order that that court may decide without delay on the lawfulness of his detention and order his release if the
detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation.

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authorities, he was not entitled of his own accord to absolve himself of the matter by

way of written communication to the Kenyan Attorney General. The Applicant

submits that the correct procedure for deferring an investigation under article 70 to a

national authority is set out in rule 162(4) of the Rules of Procedure and Evidence.

Once again, the deferral of an initiated investigation (as with a request for state

cooperation) is subject to Court approval. By directly deferring an investigation of

the Applicant for interfering with ICC witnesses to the Kenyan authorities, the OTP

was acting ultra vires.

28. The Applicant recalls that he was informed, ex post facto, that he had been

booked for offences committed under the Kenyan Communications Amendment Act

(2008) – presumably on account of the allegation that he had obtained illegal cyber-

access to confidential information. The fact that he was not told that he was being

investigated for offences committed under the Kenyan International Crimes Act

(2008),10 which was specifically enacted to give effect to article 70(4) of the Rome

Statute, is of extreme relevance. Articles 77(1) and 84(1) of the Kenyan statute make it

clear that the domestic investigation of suspected offences against the administration

of justice at the ICC is contingent upon receipt of a Court order (and not an informal

OTP request) for state cooperation under article 93 of the Rome Statute.11 The most

likely explanation for the decision of the Kenyan authorities not to interview the

Applicant pursuant to the International Crimes Act is that this domestic statute,

purposefully or otherwise, fails to incorporate the full gamut of criminal behaviour

envisaged under article 70 of the Rome Statute. Notably, the alleged conduct

concerning which the Applicant was interviewed by the Kenyan CID; namely,

“disturbing” and “contacting” ICC witnesses or “hacking their email accounts“ is not

sanctioned under domestic legislation whereas it may, arguably, constitute

“tampering with or interfering with the collection of evidence” as defined under article

70(1)(c) of the Rome Statute. Notwithstanding, the Applicant submits that the

10
http://www.kenyalaw.org/kenyalaw/klr_app/frames.php
11
See also article 21 of the International Crimes Act which sets out the appropriate channels for
requesting the assistance of the Kenyan authorities,

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substance of the OTP’s complaint is the determining factor and the fact that the

domestic investigation was conducted under the Kenya Communications

Amendment Act (2008) does not break the causal nexus with proceedings in The

Hague.

(iii) Whether the illegality need be attributed specifically to the OTP?

29. The Applicant submits that there is no need to make a specific finding that the

illegality of the arrest is attributable to the OTP as distinct from an unauthorised folly

of the Kenyan authorities. Article 85(1) creates an enforceable and mandatory right

to compensation for unlawful arrest without stipulating whether the identity of the

offending party need be an organ of the Court itself or a national authority. In this

respect, article 85(1) differs from articles 85(2) and 85(3) which create conditional and

discretionary powers respectively to award compensation where there has been a

miscarriage of justice in the course of ICC proceedings.

31. Moreover, in the chapter on article 85 compensation to be found in Triffterer’s

“Commentary on the Rome Statute of the International Criminal Court”, Chris Staker

notes that the Rome Statute and its associated rules mandate State Parties to arrest

suspects in accordance with national laws. The ICC does not have a police force of its

own and is reliant on the cooperation of national authorities to execute an arrest. In

these circumstances, to require a successful action for compensation to be contingent

on proving misconduct attributable to a Court organ would deprive article 85(1) of

any true practical effect.

32. For the sake of completeness, and as a servant of the Court, Counsel for the

Applicant feels it necessary to cite a further passage from Staker’s commentary on

article 85(1):

“The first paragraph of this article is ambiguous, in that it does not specify whether
it is the limited to unlawful conduct by Court officials, or whether it also extends to
unlawful arrests and detentions by State authorities and other persons in
connection with proceedings before the Court. In the event that it extends to the
latter, a further issue is whether the lawfulness of an arrest or detention by State

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authorities is a matter that can be determined by the Court, or whether the

paragraph 1 merely imposes an obligation on States Parties to establish their own
machinery for compensating victims of unlawful arrests and detention by their
authorities in connection with ICC proceedings. If the former is the correct
interpretation, presumably any compensation awarded by the Court in respect of
unlawful conduct of State officials would be paid by the State concerned, rather
than by the Court. Rules 173-175 shed no further light on these questions”.

33. Dealing with the query raised by Staker, there can be no doubt that the

Applicant’s arrest was effected “in connection with ICC proceedings”. Since the Kenyan

legislature has not apparently enacted a domestic mechanism for assessing

compensation due under article 85(1) of the Rome Statute, it falls to the Pre-Trial

Chamber to rectify what would otherwise be a situation where the Applicant would

left without legal remedy.

34. Notwithstanding the aforementioned, the illegality of the Kenyan authorities’

arrest of the Applicant was provoked and, thereafter, compounded by the ultra vires

fashion in which the OTP sought the cooperation of the Kenyan authorities.

Consequently, accountability for the illegality of the arrest should, in any event, be

shared by the OTP.

Relief Sought

35. In light of all the aforementioned, the learned Pre-Trial Chamber is requested

to rule that the Applicant was illegally arrested in the context of an investigation

instigated on the initiative of the OTP or, otherwise, in connection with ICC

proceedings in general.

Nicholas Kaufman

Counsel for Dennis Ole Itumbi

Jerusalem, Israel
Friday, September 21, 2012
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