On December 13, 2013, a majority of the Appeals Chamber of the International Criminal Court dismissed [3] the Prosecutor’s appeal relating to the temporal scope of charges in The Prosecutor v. William Samoei Ruto and Joshua Arap Sang case.  According to the press release [4], in January 2012, Pre-Trial Chamber II confirmed the charges against the two accused for, inter alia, crimes against humanity allegedly committed between January 1, 2008 and January 4, 2008 in the greater Eldoret area in Kenya.  In July 2013, after the Trial Chamber was constituted and had set the date for commencement of trial for September 2013, the Prosecutor sought an amendment to the temporal framework of the charges in the greater Eldoret area to include December 30 and 31, 2007.  The Pre-Trial Chamber denied the motion on the ground that such an amendment “would unduly compromise the rights of the accused persons.” 

A majority of the Appeals Chamber affirmed, ruling that, pursuant to Article 61(9) of the Rome Statute of the ICC, once the trial has commenced, it is no longer possible to amend or to add to the charges.  The Appeals Chamber thus concluded that the appeal was inadmissible given that in September 2013 opening statements were made and first witness was heard. Judge Ušacka dissented [5], reasoning “that the Prosecutor sought an amendment of the charges before the commencement of trial” and thus “the Prosecutor’s appeal should have been considered on the merits.”