The ASP’s Respect for the Rome Statute

by Kevin Jon Heller

Article 51(4) of the Rome Statute:

The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute.

Article 63(1) of the Rome Statute:

The accused shall be present during the trial.

New Rule 134ter of the Rules of Procedure and Evidence:

An accused subject to a summons to appear may submit a written request to the Trial Chamber to be excused and to be represented by counsel only during part or parts of his or her trial.

Enough said.

18 Responses

  1. Dear Kevin,
    I disagree. “During trial” does not mean during the whole of the trial. “Presence” (as discussed at length not just by international criminal tribunals, but also by domestic statutes and caselaw), does not mean always physical presence during the whole of the proceedings.
    Moreover, this provision of the Rome Statute could be interpreted simply as a protection against trials in absentia, thus something that the accused can always waive. According to human rights standards, the accused has the right to be present at trial, not the duty. Countless prosecutions in every country take place without the accused in the courtroom, whether because the accused refuses to participate or because he is allowed to send his lawyer to (some portions of) the trial.
    The scandal is that this amendment was done for a specific situation, and especially for a powerful accused, while nobody would have even considered doing it for a Lubanga. But the ASP can certainly interpret the Statute and pass the amendment – it will be up to the Judges to decide how to apply such a rule (and even if to apply it).

  2. The Appeals Chamber and the drafting history both disagree with you regarding the correct interpretation of Art. 63(1) — particularly your belief that it only protects against in absentia trials. I don’t particularly like Art. 63(1), but it means what it means. The only way around it is an amendment to the Rome Statute — not a new RPE that is categorically inconsistent with it.

  3. Kevin, Diane Marie Amann once wrote a blog post about the increased and annoying use of abbreviations, acronyms, and initialisms that experts invoke in their articles that are unfamiliar to those of us outside the circle of professional expertise. And I agree with her, speaking as a member of the class outside that circle, which includes students, ardent amateurs, the curious, and so forth. Is it too much trouble to introduce the terms before using the abbreviations, acronyms, and initialisms? Hence, for example, first, United Nations Security Council (UN SC) or International Criminal Tribunal for the former Yugoslavia, Appeals Chamber (ICTY AC), and thereafter the abbreviations, initialisms, or acronyms.

  4. I also disagree that “the ASP can certainly interpret the Statute.” The judges interpret the Rome Statute, not the ASP. If the ASP disagrees with a judicial interpretation, or if it simply prefers a different legal rule, it can amend the Rome Statute however it wants. What it cannot do is avoid the amendment provisions in the Rome Statute by adopting an RPE instead.

  5. As I understand or misunderstand it, these are the DRAFT rules as submitted by the working group on amendments.
    Now I am not aware which were the  members of the working group, and the ASP sub-section within the ICC website has – although apparently quite substantial – defeated my sleuthing attempts various times. I need to hire a truffle pig.

    Has the plenary already VOTED on these amendment proposals, pray?

  6. I think you are right on spot, Kevin!
    There is no way that the new Rule 134quarter is compatible with the RS. The amendments very clearly contravene Art 63(1) as well as Art 27 concerning the irrelevance of official capacity (here a more detailed argument why the RS not only stipulates that there is a right to be present at trial, but also requires the Chamber to ensure that the accused is present at trial: :
    Forget about Rule 134bis on the “use of video technology” (even if it also contravenes Art 63(1) of the RS). The reality is that the ASP has agreed that Kenyatta and Ruto shouldn’t be present for their trials, notwithstanding that the RS requires them to be so.
    Of course, the States Parties are not ignorant to the fact that the TCs will apply the new RPE rules “liberally” (both TCs have already stated their preference for conducting the trials in the absence of Kenyatta and Ruto; and following the AC’s ruling, TC V(a) has granted every single request made by Ruto not to be present).
    Leaving aside the question of whether the AC’s ruling presents a sober interpretation of the law, it has now effectively been “overruled” by the ASP, and the TC’s decisions have been reinstated (or more accurately, broadened).
    Judge Usacka, in her dissent to allow amicus curiae observations from a number of African States on the presence at trial issue, made some interesting points on the need to separate the role of the judiciary on the role of legislators (
    Now, the ASP decision is much more far-reaching in terms of undermining the separation of powers: Not only has the ASP decided to amend the RSP in ways that clearly contravene the RS, but it has done so in order to change the conduct of particular proceedings, with the apparent objective of satisfying the concerns of those who stand accused (and particular State Parties, but in this case there is not really a big difference).
    While it has been apparent to most of us for some time – and surely for everyone following statements made in the context of the UNSC refusal to defer – that a “compromise” on the Kenya cases was acceptable to the UK and other key States Parties (and some non-States Parties, notably the US), many will view the outcome of the ASP as an(other) indication that the ICC cannot deliver justice when powerful States have other interests at stake.
    What message is the ASP sending to the victims, and what message is the ASP sending to (the few) witnesses left in the Kenyan cases?
    The concerns of Kenya and other African States should be listened to, but the “compromise” reached at the ASP will have implications far beyond the Kenyan cases. The States Parties made lofty promises as they drafted the RS – and they did so more recently in the context of Kenya’s 2013 elections. Kenyan human rights activist Muthoni Wanyeki makes some interesting observations on UK’s hypocrisy here:

  7. Thomas, the problem are not “THE” trial chambers, but [deleted as an unacceptable personal attack].

  8. I disagree that the rule is inconsistent with the RS.
    Presence in 63 does not mean physical presence. If it can be accepted that the accused may be ‘present’ through video technology (which is the other amendment that receives no comment here) then there is no reason why the accused may not be ‘present’ through counsel. All the more so when 63 is viewed as a right of the accused rather than a strict requirement. This view, of 63 as a right of the accused, is supported by the fact that the Court can limit the right to attend if the accused is disruptive. If 63 were as black and white as you say the Court would not have the authority to limit it in any way.
    Thomas, the amendment does not breach 27 either. There is no immunity, the Court is not limited in its jurisdiction, and the exception is not based on official capacity.
    Finally, the Court retains discretion on whether to grant this exception which is only for very limited circumstances.

  9. Chris,

    The Appeals Chamber disagrees with you, as well. In Ruto, it specifically rejected the idea that presence is simply a right of the defendant — and it did so based on the drafting history of the provision.

    Regardless, there is a fundamental difference between the idea that the presence of the defendant can include virtual presence (which I’ve contested in an earlier blog post, though it’s a closer call) and the idea that the defendant can be “present” through counsel. In the former situation, the defendant still participates personally in the trial; in the latter situation he does not. Indeed, none of the rationales for requiring physical presence articulated by the Appeals Chamber in Ruto are satisfied by the defendant being present through counsel. Have you read the decision?

    Finally, explain this to me: if “presence” does not mean physical presence, why does Art. 63(2) assume that it does?

  10. I empathize with Kevin’s wounded feelings; for I also felt – immediately and spontaneously, unencumbered by political wisdom and diplomatic need for compromises – rather disappointed and maybe even disspirited with the amendments to rule 134. But I suppose one might have to see and evaluate the entire package as a whole.

    As to the regulations themselves, some states parties (Liechtenstein, Netherlands, Jordan, Botswana) may see them as a lesser evil, taking into consideration especially that those seem to have been the price for retaining and defending (!) the [not-so-]new and increasingly accepted principle of non-immunity of heads of state w.r.t. the gravest crimes against humanity.

    Concerning the strictly legal (dogmatic) question, I do recognize – unlike Kevin – that the interpretation of “presence” which the Rules now espouses, is at least tenable and arguable. But I do not like it, and I think the argument for a literal, physical understanding of corporeal presence is the better one. It is however not compelling.

  11. Chris – Art 27 (1) concerning the “irrelevance of official capacity” states that the “Statute shall apply equally to all persons without any distinction based on official capacity”. The amended R134 states that only persons who are “mandated to fulfill extraordinary public duties at the highest national level” may be excused from presence at trial. How can these two rules be compatible?

  12. The perps, TC V(a), and TC V(b) will no doubt seek to stretch as much as possible the application of the new rules.   There will be skirmishes relative to Articles 51(5) and 63.    So, then, back to the Appeals Chamber.
    I am willing to buy the argument that “video presence” qualifies as “proper presence”.   But “presence by counsel”?

  13. Judge Oboe-Osuji’s recent dissent written prior to the ASP, in regards to presence, sheds light on the relevance of the outcome at the ASP: 
    Presumably towards that end, some proposals for the amendment of the Court’s Rules of Procedure and Evidence were tabled before the Twelfth Session of the ASP, containing among other things, a proposal that would achieve a minimum of the outcome indicated by the Majority of the Trial Chamber in the Kenyatta case (22). At its amplest, the proposal may achieve a minimum of that outcome. But whatever be the case, the proposal will generate debates (23) on the floor of the Twelfth session of the ASP in which States Parties will directly express themselves in a manner that may convey a useful picture of state practice that the Appeals Chamber may see fit to take into account in any decision that they may make in respect of the Kenyatta case. Such a picture of state practice that was not present during the Appeal.

  14. Thomas: it is a common – and trivial – question about hierarchy of norms. Unproblematic for Civil Lawyers.
    Quis enim iudicabit? I do think that the ordinary trial chambers have competence to decide on that. But I am glad to be taught by anybody who knows the Rome Statute and the Rules of Procedure and Evidence better than I.
    As to OtishOtish: I love the comma after the word “perps”. You are vicious. That said, I also concur with your differentiation. It makes sense.

  15. Really, Alexander!   Just who is being vicious?  🙂
    Oh, I should qualify my comments about the TCs: the “problem” mainly consists of the guy who can never put down his pen and his sidekick; their lady colleagues generally seem to be a bit more “sensible”.

  16. Kevin, thanks for your response.
    Yes I’ve read the decision, it is wholly unconvincing and poorly supported. In any event it is what it is at this point. It does however allow the TC to excuse a person from trial based on limited circumstances, and the amendment is based on this. As to satisfying the weak reasons given by the AC for requiring attendance:
    (i) It is important for the accused person to have the opportunity to follow the testimony of witnesses -This opportunity and right has been waived. 
    (ii) 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 – This is a bit vague, is it paramount?
    (iii) Detrimental impact on the morale and participation of victims and witnesses. – The only rationale given truly not satisfied by participation through counsel. Not entirely convincing either, not even close to all victims would see the accused in Court, and to me this concern is secondary to seeing the trial proceed to a conclusion.
    (iv) Important role in promoting public confidence in the administration of justice. – As you said yourself, 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. Moreover, for the trial to proceed to a conclusion and achieve the administration of justice will do more to promote public confidence.
    If the presence required is as clear cut as you contend, how can the AC allow any excusal?
    I agree that it looks quite bad that this rule has been introduced in response to an ongoing trial, but it is at least strongly arguable that it complies with the RS. I certainly don’t see it as a certainty that the AC will see it as incompatible and they would show very poor judgement if they did so. It would be, as you said, shooting themselves in the foot. Again.

  17. Well, Chris, the appeals chamber judgement is still a _lot_ better than either of the trial chamber decisions, or the wannabe encyclopedic last dissenting opinion with far transgressed the border of the ridiculous (just see the initiating “per incuriam” rant of its author).
    I agree with you that the minority dissent of the appeals chamber has the charm of stringency, so appealing to any jurist. The majority decision however was a balanced compromise. Compromises never appeal to the legalistic mind, and neither does this one, I admit. But that does not mean that they be bad.

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