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

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

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.

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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.


 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… Read more »

An Hertogen

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


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,… Read more »


“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!”


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.