Will the New RPE 134 Provisions Survive Judicial Review? (Probably Not.)

The Assembly of States Parties (ASP) has adopted three new rules of procedure — RPE 134 bis, ter, and quater — designed to minimize the obligation of accused to be physically present at trial. The OTP will almost certainly challenge the new rules. So will any of them survive judicial review?

Rule 134bis

Rule 134bis concerns video technology:

1.      An accused subject to a summons to appear may submit a written request to the Trial Chamber to be allowed to be present in the courtroom through the use of video technology during part or parts of his or her trial.

2.      The Trial Chamber shall rule on the request on a case-by-case basis, with due regard to the subject matter of the specific hearings in question.

The fate of this provision is tricky to assess. On the one hand, virtual presence does not conflict with the various rationales the Appeals Chamber offered in Ruto for requiring the accused to be present at trial:

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.

On the other hand, Art. 63(1) contemplates physical presence, not virtual presence. Art. 63(2) elaborates on the presence requirement in Art. 63(1) by permitting the Trial Chamber to remove the accused “[i]f the accused, being present before the Court, continues to disrupt the trial” — a clear indication that the drafters of Art. 63(1) were assuming physical presence when they drafted the Article. More importantly, though — and in direct contrast to the Chair of the ASP’s claim that Rule 134bis does not conflict with Art. 63(1) because “video-conference technology (VCT)… was not foreseen when the Rome Statute was drafted” — Art. 63(2) itself contemplates the use of videoconferencing, but only when a disruptive accused has been removed from the courtroom (emphasis mine):

If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

In my view, Art. 63(2) dooms Rule 134bis — or at least it should. The drafters of Art. 63(2) not only contemplated the use of videoconferencing, they very specifically considered it an exceptional mechanism. Art. 63(2) thus eliminate all doubt that “presence” in Art. 63(1) means physical presence, not virtual presence. Had the drafters considered virtual presence equivalent to physical presence, they would not have relegated virtual presence to Art. 63(2).

Rule 134ter

Rule 134ter concerns presence through counsel:

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

[snip]

3.      The Trial Chamber shall rule on the request on a case-by-case basis, with due regard to the subject matter of the specific hearings in question. Any absence must be limited to what is strictly necessary and must not become the rule.

I have no doubt whatsoever that the Appeals Chamber will invalidate this provision. Unlike Rule 134bis, Rule 134ter does not even attempt to fit the new rule within Art. 63(1)’s presence requirement. On the contrary the provision openly acknowledges that it permits an accused not to be present (“excused”) in any way at trial. Rule 134ter thus not only conflicts with even a liberal interpretation of Art. 63(1)’s presence requirement, it runs afoul of all of the rationales for requiring presence articulated by the Appeals Chamber in Ruto — particularly the need for the accused to follow witness testimony and the impact of presence on the morale of victims and witnesses.

Rule 134quater

Rule 134quater is the controversial “really important accused” provision:

1.      An accused subject to a summons to appear who is mandated to fulfill extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be allowed to be excused and to be represented by counsel only; the request must specify that the accused specifically waives the right to be present at the trial.

2.      The Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interest of justice and provided that the rights of the accused are fully ensured. The decision shall be taken with due regard to the subject matter of the specific hearings in question and is subject to review at any time.

On balance, I think that this provision is unlikely to survive review — at least in its negotiated form. Rule 134quater bears some superficial resemblance to the Appeals Chamber’s decision in Ruto, which permits a Trial Chamber to excuse an accused from presence at trial in “exceptional circumstances.” But it differs from it in a number of important ways. Here is the Appeals Chamber’s test:

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.

To begin with, the Appeals Chamber’s test does not suggest that an accused with “extraordinary public duties” should be treated differently than an accused with lesser duties; at least textually, the test leaves open the possibility of any accused being temporarily excused from trial. Nor do I think it is likely that the Appeals Chamber will accept a provision that explicitly privileges some accused over others; after all, the much-debated Art. 27(1) specifically provides that the Rome Statute “shall apply equally to all persons without any distinction based on official capacity.”

I also doubt that the Appeals Chamber will accept Rule 134quater’s apparent willingness to excuse an accused with “extraordinary public duties” from all or most of trial. I say “apparently willingness” because the provision is very poorly drafted: paragraph 1 suggests that there are no temporal limits on the accused’s absence (it focuses on the accused’s status, not the accused’s need to deal with specific obligations), while paragraph 2 mentions “specific hearings.” My guess is that paragraph 1 better reflects the intention of the ASP. First, the inclusion of the “subject to review at any time” language in paragraph 2 suggests that the drafters of Rule 134quater contemplated the accused being absent from trial for a considerable period of time. Second, in direct contrast to Rule 134ter, the provision does not state that “[a]ny absence must be limited to what is strictly necessary and must not become the rule,” suggesting that general absence can be the rule under Rule 134quater.

If I’m right, the Appeals Chamber will almost certainly pare back the provision. As the quote from Ruto indicates, it reads Art. 63(1) to generally require physical presence at trial; the decision insists again and again that a Trial Chamber should very rarely excuse an accused — and only insofar as absence is necessary for an accused to address a specific situation.

The Bottom Line

It is always difficult to predict how the judges will decide a legal challenge, and it is particularly difficult to predict how they will decide a legal challenge involving decisions made by the Court’s political body. The judges will no doubt feel significant pressure not to invalidate the ASP’s work. But in this case they should. Although the ASP has the authority to amend the Rome Statute however it wants, it does not have the authority to avoid (relatively) clear provisions in the Rome Statute by amending the Rules of Procedure and Evidence instead. And that is precisely what the ASP has done. Rule 134bis is inconsistent with Art. 63(2)’s relegation of videoconferencing to situations in which a disruptive accused has been removed from the courtroom. Rule 134ter simply ignores Art. 63(1)’s presence requirement. And Rule 134quater creates two tiers of accused in violation of Art. 27(1) and permits an accused to be absent from trial far longer than the Appeals Chamber has said is acceptable under Art. 63(1).