Appeals Chamber Ensures Ruto & Kenyatta Won’t Cooperate with the ICC

by Kevin Jon Heller

In a unanimous decision, the Appeals Chamber has reversed Trial Chamber V(a) and held that Ruto is required to continuously attend his trial, with exceptions to be granted only in exceptional circumstances. The decision is limited to Ruto, but it clearly applies to Kenyatta, as well, whom Trial Chamber V(b) has also excused from continuous presence.

It’s decisions like these that make me despair for the long-term viability of the Court. From a policy perspective, the decision is a disaster — it basically ensures that Ruto and Kenyatta will stop cooperating with the Court. Even worse, the decision will almost certainly engender considerable sympathy for the two men; after all, whether the ICC likes it or not, Ruto and Kenyatta were democratically elected to run a state critically important to African security. They are not Omar al-Bashir, who came to power in a coup and maintains power through fraudulent elections. Nor are their crimes as grave or their guilt as obvious.

Unlike the Trial Chambers — especially in the Kenyatta case — the Appeals Chamber seems completely oblivious to the obvious implications of its uncompromising position. Here is its list of rationales for requiring continuous participation (para. 49):

The accused person is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein. It is important for the accused person to have the opportunity to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions between his or her recollection of events and the account of the witness. It is also through the process of confronting the accused with the evidence against him or her that the fullest and most comprehensive record of the relevant events may be formed. Furthermore, the continuous absence of an accused from his or her own trial would have a detrimental impact on the morale and participation of victims and witnesses. More broadly, the presence of the accused during the trial plays an important role in promoting public confidence in the administration of justice.

The most obvious response is this: Ruto and Kenyatta will play no role at all in “promoting public confidence in the administration of justice” if they do not show up for trial. But beyond that, the Appeals Chamber’s rationales are either irrelevant or equally compatible with a more flexible approach to presence. Presence at trial is indeed important for an accused’s ability to understand the evidence against him — but it’s not the Court’s role to make sure the accused make smart strategic choices. There is no relationship at all between confronting an accused with the evidence against him and creating a comprehensive record, especially given that he cannot be forced to testify against his will (Art. 67(g) of the Rome Statute). And although it’s certainly possible that an accused’s absence may have a detrimental impact on the morale of victims and witnesses, I imagine most are more concerned with a conviction (and at least some would probably prefer not to have to give evidence in front of their victimizer).

These are policy concerns, of course, and the Appeals Chamber was faced with a legal issue — whether the Rome Statute requires an accused to be continuously present at trial. Indeed, I would have respected the Appeals Chamber if it had adopted the OTP’s argument and simply held that Art. 63(1) means what it says: “The accused shall be present during the trial.” An absolute presence requirement is obviously consistent with Art. 63(1) — and is generally if not unequivocally supported by the drafting history of the provision.

But that is not what the Appeals Chamber did. Instead, it tried to have it both ways — rejecting an absolute presence requirement and denying Trial Chambers the discretion they need to fashion a presence requirement that will ensure Ruto and Kenyatta show up for trial. Here is the key paragraph:

62. From the foregoing, the following limitations on the discretion of the Trial Chamber to excuse an accused person from presence during trial may be derived: (i) the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.

This is the worst of both worlds — the kind of mushy, divorced-from-the-text-of-the-Rome-Statute approach to Art. 63(1) that makes the Court seem callow and capricious. Indeed, the Appeals Chamber’s decision sends precisely the wrong message to Kenyatta and Ruto: “hey guys, it’s true that the Rome Statute doesn’t require your continuous presence. But it requires it more often than the Trial Chamber thinks it does. So you’ll just have to hope that the Trial Chamber will apply the test we pulled out of thin air in a manner that doesn’t make it impossible for you to both run Kenya and cooperate with the Court.” I think we know how that will turn out.

Once again, the ICC has shot itself in its foot. Deferral by the Security Council is looking like a better option by the day.

6 Responses

  1. I thought ICC was going to succumb to political pressure and confirm all our fears that it can be bullied and arm-twisted by politicians. Thank you AC. Well done.

  2.  An intelligent, witty, but entirely misguided opinion by Kevin Jon Heller. I am quite sure that his challenge was written with at least part of the tongue in cheek, thus with the intent to elicit more responses than a more equilibrated (or if you will, more anodyne) posting would have spawned.

    1. In any criminal court, cooperation of the accused is helpful, but not needed. That is why défence de rupture (Vergès) or Schweigetaktik (Klemke) is maybe annoying, but entirely licit in criminal trial.

    2. The state party of Kenya has utterly NON-cooperated from day one, and from day one _her_ lawyers have tried to unveil, to out, and to intimidate witnesses. That is a fact. The accused and the state are one here, materially, although the trial chamber insists strongly – and with right – upon a formal distinction.

    3. The long-term viability of the court is not determined by the judges, but by the Assembly of State Parties. The main reason for the accused Kenyatta’s resounding (almost spectacular) defeat before the AU, was the strong and efficient behind-the-frontlines diplomacy of many “Western” states. Without much public noise, this classic approach ensured that the material grievances and discontent of numerous African (and some non-African) states, was to be deferred to the ASP, which will treat them now in November.

    4. The main legal point is not – repeat not – the very dubious election of the two co-accused (I shall concede however that they would in all likelihood have been elected even in a licit and blameless election in the second round, unlike this one which was flawed). This election is without any legal relevance.
    What is relevant is that they were already compromised when they stood for election. It was fully known to them AND to their electorate that in all likelihood, their holding office would be severely impeded by their trial. Their risk thus. If it will emerge that they culpably cannot fulfill their obligations under the Kenyan constitution – which is alone their responsibility, and not the ICC’s – they will have to be impeached by the Kenyan parliament. Very simple.

    5. Actio libera in causa (or illicita in causa, as you will).

    6. Kevin sides with the stricter minority opinion of the two appeals judges Ušacka and Kourula. Their strict and – if you will – more rigid position is indeed emotionally more appealing to a Civil-Law-trained legal mind, such as Kevin’s and mine. It is the nicer, and emotionally cosier stance. But not the legally better one.

    7. Capricious – [Deleted by the Editors] – was and is trial judge Eboe-Osuji. Not the appeals chamber. What it delivered here, were very clear and reasonable “sailing directions”; a practice not at all uncommon in the Civil Law ambit, upon appellate or cassatory reversal and renvoi of preceding decision.

    8. The appeals judgement is truly excellent in style and substance. Its great value for the development of ICC jurisprudence is that it sets a signal against the very dangerous temptation of legal politicking on the bench, and from the bench. The judicative (trial judges) cannot do – and must not endeavour to do – what the legislative (ASP) must champion for.

    9. The Security Council will definitively wait for the ASP meeting and its conclusions and resolutions. It appears very possible that concessions and improvements (in the view of African states) will be granted there, in order to allow the SC to reject the deferral request lateron with even more legitimacy. The plan would be to reject it with majority (which appears possible), rather than to use the veto power of one of the permanent members.

  3. Editors’ comment: please maintain civil discourse in the commenting section and refrain from ad hominem attacks.

  4. Alexander’s response falters on a number of points and hints at a party with deeply vested interests in the outcome of the subject matter.

    #2 None of the ICC trial chambers has made a finding on the state party of Kenya’s alleged non-cooperation. Alexander is free to present any such finding which he has wrongly proclaims as fact. The state party’s response on the non-cooperation claims, simplifies and lays bare the misrepresented allegations.

    #3 Resounding defeat is an overstatement by any measure. There were several activities prior to the AU summit. How is it a defeat if the rumoured mass withdrawal would not have led to the termination of the cases? In any case the AU will reconvene in November on the very same subject matter, hence it is not a concluded affair. When all reasonable options are exhausted, one can expect to see concrete action taken. Most notable is the letter excerpted below in reference to the assembly of parties from the ICC. There were only two agenda items for the AU summit and withdrawal does not appear on the list:

    Progress Report on the Implementation of Decision Assembly/AU/Dec. 482 (XXI) of May 2013 on International Jurisdiction, Justice and ICC;
    Election (by the Executive Council) and Appointment (by the Assembly) of a new Commissioner for Peace and Security.

    The Assembly session provides an important opportunity to have a political discussion of issues concerning the Rome Status and it is also a place where decisions within the mandate of the Assembly, including the legal framework, are taken. I hope that any meetings of the African Union or African States Parties prior to 20 November would focus on consolidating suggestions to be presented to all States Parties, bringing forward ideas and concrete proposals for action to the Assembly.

    Excellencies, communication between the ICC and the AU has been ongoing. Since the May Summit, we sent two letters co-signed by the Chairpersons of the AU and the AU Commission to the ICC, an AU delegation led by the Chairperson of the Executive Council met the President and Prosecutor of the Court in The Hague and the Chairperson of the Commission met the ICC Prosecutor earlier this week.

    The 15 Members of the Security Council were today in Addis Ababa, Ethiopia, on the last leg of their visit to the Great Lakes Region of Africa. While in Addis Ababa, the Security Council delegation held a joint meeting with the Peace and Security Council of the African Union.
    Spokesperson: I will check. What we will be able to say: the Secretary-General certainly did make a number of telephone calls, but I don’t think that we will be going into the details of those calls.

    Furthermore, we have decided to set up a Contact Group of the Executive Council to be led by its Chairperson, composed of five (5) members from each region plus Kenya to undertake consultations with the members of the United Nations Security Council, in particular its five Permanent members with a view to engaging with them on all concerns of the AU in its relationship with the ICC, including the deferral of the Kenyan and the Sudan cases in order to obtain their feedback before the beginning of the trial on 12 November 2013. If our request for deferral does not get a response until then, we have agreed to request for postponement of the trial.

    #4 All observers both local and international have all come to the conclusion that the election was free and fair with the exception however of the primary and perennial looser. Alexander will be hard pressed to find any single accredited local or international observer that found to the contrary, here are the EU Observer missions findings for example The contest went before an independent Supreme Court of Kenya which ruled unanimously in upholding the sovereign will of the Kenyan people and like the observers, found that the elections were free and fair. To the extent he has responded, Alexander’s sentiments confirm the covert use of the ICC as a political tool to be used to subvert the sovereign will of the people of Kenya. Any impeachment by the Kenyan parliament amounts to wishful thinking, a President and Deputy President will not be impeached when their coalition holds the required 2/3 majority of both the Senate and National Assembly. The recent resolutions on the ICC passed by both chambers should be an indication of the fate any such attempt to undermine the will of the people will meet. That aside, the intransigence and steadfast refusal to accept any reasonable requests by the ICC will serve to be the ICC’s undoing in the long run. An apolitical court that fails to be cognizant of the intertwined political reality of its operations will eventually see the seeds it has thus sown, sprout in unimaginable ways that defy its apolitical realm of thought and conduct.

    The UNSC meets to discuss the deferral request on October 31st. Absent a deferral or amendment to the Rome Statute on continuous presence, Kevin Jon Heller is right, it is almost certain there will be no further cooperation with the ICC and that is assuming the ICC does not rule against what is a damning indictment of the OTP

    And in other ICC related developments in the yet to commence case of Walter Barasa which is steadily exposing the alleged nefarious conduct of the OTP. A former OTP witness had these damning sworn statements filed as part of the public record in a Kenyan court, how these cases continue to judicially limp along is a mystery in itself. With these types of revelations, it won’t take much for cooperation with the ICC to collapse.
    6. THAT I declined the request of the OTP to change my Statements and explained to them that I considered it unlawful and morally objectionable to give false testimony but they were unwilling to let my testimony stand as I had previously recorded it. I threatened to withdraw as a Witness if they continued to pressurize me to alter my Statement to include any matters that were either false or strange to me. Subsequently, I was charged in Court with the offences of mistreating my children. The Court
    found that I was irresponsible and ordered that my children be taken away by the Child Care Services, Netherlands.
    7. THAT whenever I demanded my children from the Child Care Services they would tell me that I consult the ICC. Therefore, I requested the OTP and Victims and Witnesses Unit of the ICC to help me get back my Children. A lawyer making with the OTP known as Cynthia Tai called to tell me that if I accepted to sign the altered statement I had previously refused to sign, ICC would help me to get back my children. However, I maintained my refusal to sign the altered statement. I have documents to attest this information but they are in Dutch language – if the Court
    requires them I pledge to offer copies of the same after they are
    translated into English.

  5. “hints at a party with deeply vested interests in the outcome of the subject matter.”

    Correct. My analysis above hinted so indeed. And this party with deeply vested interests that Obie mentions – it is always amazing how readily Kenyan political players give themselves away in public utterings – are not the three (res. four now, with Barasa) remaining accused themselves.

    The party are the group behind and around them. Of which Obie is one exponent. They use Uhuru Kenyatta as a tool, notwithstanding their ever-hollower public declarations of loyalty. 

    Here I’ll quote two contributions from a Kenyan forum where this connex has been explained a but more clearly:

    1: “The people behind UK want to provoke a warrant of arrest against the poor man. They think it would serve _their_ power interests. He would become a hostage in his own country, a pariah outside, and depend even more upon them. So they calculate.”

    2: “Absolutely (…)! Not forgetting the freezing of his personal assets in the west(where most are accumulated), in case an arrest warrant is given out for Uhuru! The man will be rich but be pauperish as a church mouse!”

  6. Added after today’s decision to vacate the commencement of the Kenyatta trial, and to shove it to February:

    1. A deferral by UN SC was never an option, not even remotely. But three of the P-5 states also wanted to avoid a use of their veto power, and wanted the ASP to exercise its prerogative to handle the grievances of African states with the ICC.

    2. The present temporary-tactical retreat of Bensouda (unexpected as it is), was due to high-level diplomatic pressure of some states parties directly on the Office of the Prosecutor, in the very last days.

    3. As you will note in her submission, she has retained and defended all her legal stance, and uses the Mungiki issue and the witness presentation decision of the trial chamber V(b) only as a pretext now. A weak pretext admittedly, but judge Eboé-Osuji more than gladly accepted this emergency valve, trying to evacuate some of the present pressure against the institution of the Court as such.

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