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right.25 Both accused thus might rightfully argue that the position taken by the TCH
in the termination decision is all but foreseeable, which clears a path to Article 21(3).
Moreover, there are other important human rights aspects which are addressed
rather inconsistently here. In his reasoning Judge Fremr points out that ‘other evidence
may have been available to the Prosecution – including evidence that possibly would
demonstrate the accuseds’ 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.’26 The author’s argument is that innocence of the accused need
not be demonstrated, as he/she is presumed to be innocent otherwise. Quite the
contrary, it is the guilt what must be demonstrated beyond reasonable doubt, with
the obvious onus resting on the Prosecutor to prove the guilt (Article 66 of the ICC
Statute). With all understanding to the uneasy situation the OTP faced during the
investigation, the simple fact remains that in the Ruto and Sang case the Prosecutor
did not bear this onus and the accused should have been acquitted.27
A final comment in this part deals with the issue of applicable law before the
ICC. In searching for the legal basis of re-prosecution, Judge Fremr referred to the
criminal law of numerous national jurisdictions.28 It is notoriously known that the
Rome Statute draws a clear hierarchy between primary (Statute, Elements of Crimes,
Rules of Procedure and Evidence), secondary (applicable treaties and the principles
and rules of international law) and tertiary sources (general principles of law derived
from national laws).29 In the pyramid of applicable law, domestic regulations have been
given only a subsidiary role to play, not an additional one.30 Reference to domestic
25 CROQUET, Nicolas. The International Criminal Court and the Treatment of Defence Rights:
A Mirror of the European Court of Human Rights’ Jurisprudence? Human Rights Law Review. 2011,
vol. 11, issue 1, p. 99.
26 Termination decision, Reasons of Judge Fremr, § 148.
27 As pointed out by K. Heller, a mistrial could have been theoretically available had it been demonstrated
that interfering with witnesses was attributable to the accused. Nevertheless, Judge Eboe-Osuji made
it clear that there was no evidence to the effect that the accused had instructed or encouraged anyone
to engage in witness interference. Cf. Termination decision, Reasons of Judge Eboe-Osuji, § 153.
HELLER, Kevin, J. The Ruto Trial Chamber Invents the Mistrial Without Prejudice. Opinio Juris.
Available online at:
[06/29/2016].
28 Termination decision, Reasons of Judge Fremr, § 148. ‘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.’ Judge Fremr referred to criminal procedure in England and Wales,
Germany and the Netherlands.
29 BITTI, Gilbert. Article 21 of the Statute of the International Criminal Court and the treatment of
sources of law in the jurisprudence of the ICC. In: STAHN, Carsten, SLUITER, Göran (eds.) The
Emerging Practice of the International Criminal Court. Leiden: Martinus Nijhoff, 2009, pp. 285-304.
30 BITTI, Gilbert. Article 21 and the Hierarchy of Sources of Law before the ICC. In: STAHN, Carsten
(ed.) The Law and Practice of the International Criminal Court. Oxford: OUP, 2015, p. 427.