No, the ASP Didn’t Hoodwink Kenya and the AU Concerning RPE 134quater

by Kevin Jon Heller

Standard Digital News, the online platform of The Standard, one of Kenya’s leading newspapers, published a long article yesterday entitled “Did State Parties Hoodwink Kenya, African Union on ICC Attendence?” Here are the opening paragraphs:

KENYA: Did the Rome Statute Assembly of State Parties hoodwink Kenya that the country’s chief executives would be excused from physical presence at their trials? This is the legal question some experts are raising after International Criminal Court Prosecutor Fatou Bensouda unveiled a shocker that Deputy President William Ruto must still show up at the ICC and face his accusers in the courtroom.

The Gambian-born prosecutor maintained that Ruto should not be tried in absentia despite recent amendments by the Assembly of State Parties (ASP) that were lauded by African Union as a major diplomatic victory for Kenya’s indicted leaders.

“The state parties amended the rules out of political pressure but in the end totally hoodwinked Kenya by handing over the discretion to the judges to decide only in exceptional circumstances,” said James Aggrey Mwamu, President of East Africa Law Society.

There is a grain of truth to this complaint: with its obsequious desire to placate Kenya, the ASP certainly didn’t go out of its way to highlight the fact that amending the Rules of Procedure and Evidence (RPE) instead of the Rome Statute left the new rules on presence subject to judicial review. That said, it’s not like the difference between amending the Rome Statute and amending the RPE is some kind of secret; after all, Art. 51(4) of the Rome Statue explicitly provides that “[t]he Rules of Procedure and Evidence, amendments thereto, and any provisional Rule shall be consistent with this Statute,” while Art. 51(5) provides that “[i]n the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.” Presumably, Kenya and the AU have lawyers capable of reading the Rome Statute — so if they believed that the OTP simply had to accept the new rules, they really have no one but themselves to blame.

And, of course, the OTP is challenging Rule 134quater. The motion is here — and it’s one of the best motions to come out of the OTP in quite some time. Two aspects are particularly worth mentioning. First, and not surprisingly, the OTP foregrounds the need for Rule 134quater to be consistent with the Rome Statute:

30. The Prosecution recognises that the Assembly of States Parties is the Court’s legislature, and that one of its intentions at this year’s Assembly was to advance the state of the law with respect to the absence of an accused in high public office. But the States Parties chose to amend the Rules, not the Statute, and Article 51(4) requires amendments to the Rules to be “consistent with th[e] Statute”. Contrary to the Request’s suggestion, the recent amendments cannot “overrule” the Appeals Chamber’s interpretation of Article 63(1). Instead, “States Parties [must] be assumed to intend that the Rules they adopt be consistent with the Statute”

31. Nor can the amended Rule be said to “provide greater clarity and instruction to the Court on the meaning scope and application of Article 63”, since any such alteration to the meaning of the Article, however subtle, amounts to nothing less than an impermissible amendment of the Statute.

This is absolutely correct, and the media needs to report it accurately and often. Again, the ASP could have insulated the new rules on presence from challenge and review — by amending the Rome Statute. That was not easy or quick enough for the ASP, so it made a conscious decision to circumvent Art. 63(1)’s presence requirement by amending the RPE instead. Both the ASP and Kenya thus have to live with the possibility — in my view, likelihood — that the judges will invalidate or at the very least narrow Rule 134quater.

And that leads to the second notable aspect of the OTP’s motion — its insistence that Rule 134quater is, in fact, consistent with Art. 63(1):

34. The Prosecution submits that Rule 134quater can be reconciled with the Statute. Under this reading, individuals “mandated to fulfil extraordinary public duties at the highest national level” and subject to a summons become an explicitly enunciated sub-category of the “exceptional circumstances” limb of the Appeals Chamber’s six-part test. In other words, where an accused on a summons to appear is able to demonstrate extraordinary public duties at the highest national level, this would always satisfy the “exceptional circumstances” limb. The other five parts of the Appeals Chamber’s test – alternative measures, limited absences, explicit waiver, assurance of rights, and case-by-case grants with due regard to specific hearings – continue to apply.

In one sense, the OTP’s claim is disingenuous: everyone knows, including Fatou Bensouda, that Rule 134quater was not intended to codify the Appeals Chamber’s interpretation of Art. 63(1) in Ruto. Indeed, the OTP simply (and rather obviously) reads the critical first sentence of the new Rule — “[a]n accused subject to a summons to appear who is mandated to fulfill extraordinary public duties at the highest national level” — out of existence in para. 24, where it argues that Art. 27 of the Rome Statute does not permit accused to be treated differently depending on their status.

That said, the OTP’s argument is very smart. Although I disagree with my friend Dov Jacobs that the judges will rubber-stamp the ASP’s end-run around the Rome Statute, I have little doubt that they would rather avoid flatly invalidating Rule 134quater. The OTP’s motion thus provides the judges with a convenient out: by adopting the OTP’s strained interpretation of the Rule 134quater, they can “uphold” the Rule while diluting it of any independent force. In that scenario, everyone wins.

Except Kenya and Ruto, of course.

http://opiniojuris.org/2014/01/14/asp-didnt-hoodwink-kenya-au-concerning-rpe-134quater/

6 Responses

  1. As is the case so often in media, headline and text content of this blog article do not entirely coincide. But the reason is understandable.

    Firstly, it is extremely unusual (in fact, utterly unlikely, now that freedom and independence of the media in Kenya have been practically abolished both by hew laws and by practices [= open bribes and secret pressure]) that any Kenyan print medium would publish a nuanced and largely correct, differentiated article on any ICC-related topic, such as has happened here. The risk, a very real risk for journalists, but especially for editors, is simply far too high, now that the two main accused control the country’s media both economically and legally.
    Secondly, the assessment of the quoted lawyers seems largely correct. The colourful expression “hoodwink” may appear a bit strong to stiff-lipped lawyers when they are dealing with questions of legislation and hierarchy of norms, rather than with shell gamblers (thimbleriggers). However, it is quite close to the truth.
    The preposterous attempts of governmental strawmen of the accused to shield these same accused – their bosses – were outmaneuvered, first before the African Union, and then also before the Assembly of State Parties. When it comes to the legislative formulation of the altered and amended rules, maybe the word “amphiboly” is more suitable than “hoodwinking”. I shall concede that much.

    Thirdly, the Kenyan delegation – legally not very competent – fooled itself. Which, come to think, it not the worst thing. Better than to fool others. Other delegations however were *very* well prepared, and the present rules – while they were certainly deserving Heller’s preceding criticism – are now ambiguous enough to be subject to a suitable interpretation conforming to the superior Rome Statute.

    This leads to my fourth comment: in their brief (it is not a “motion” itself, because only the accused has moved with his preceding brief, which OTP and LRV seek to have rejected), OTP have indeed delivered a brilliant piece, one of the best so far in this entire trial. I suppose it is Anton Steynberg who must be credited with it, and whose equally nimble and compelling diction and presentation cannot be praised highly enough. I have already (re)commended it as a masterpiece to be read and aspired to, towards junior lawyers and mentees.

    Its argument structure is common enough in Civil Law, namely an application of the rules of practical concordance as it is called here (or harmonization, as Common Lawyers are wont to say).
    Such structures are commonly employed when it comes to apparent or real conflict between constitutional law and ordinary parliamentary legislation. Inasmuch as a limiting interpretation is possible and at all concilable with the wording itself (including some tweaking and squeezing), a concordance is usually attempted for.

    I deem it likely that the two Civil Law judges of the trial chamber will follow this route. And as always, we will be treated to a 20+ pages separate opinion treatise of the other judge…

    Before that however, the chamber has just now scheduled a status conference for discussion, in which the two accused (Ruto and Sang) do not have to appear.

  2. Kevin, just to clarify my position to your readers, I actually agree to some extent with your legal analysis that a plain reading of Article 63(1) doesn’t leave much room for accommodating the “exceptions” in the new rules adopted at the ASP.
    However, the reason I disagree with you, as I noted here, is that neither the Trial Chamber nor the Appeals Chamber adopted a strict literal reading of Article 63(1). They both “invented” criteria for absence of the accused, even if the AC was stricter about it.
    So basically, both chambers agree that there are circumstances where the accused can be absent from his trial but disagree on when. This disagreement has now been settled by the ASP. The only way they do not rubber stamp the new rules is by being completely inconsistent and fall into a literal reading of Article 63(1), as I explain here

  3. Kevin, on a related point, of course that the ASP can “overrule” the Appeals Chamber’s interpretation of Article 63(1). It is just that, an interpretation. This was my other point of disagreement with you in your initial post on this. The starting point cannot be, as you did and the OTP is doing, whether the new rule is consistent with the AC’s decision. The starting point is the Statute itself. And as I said before, the only way that the AC decision would have been indirectly relevant in that respect is if they had decided that Article 63(1) should be read literally. Once they opened the door to a more flexible interpretation, they have no right, in my opinion, to disagree with the ASP’s position. Between the “arbitrary” reading of Article 63(1) by the Chambers and the “arbitrary” reading of Article 63(1) by the ASP, the latter should prevail.

  4. Your point is well taken, but I still disagree. I don’t think it follows from the AC’s willingness to be less than literal about 63(1) — which I agree they were in the decision — that they will be equally willing to accept a much less literal reading, particularly one that is, additionally, facially inconsistent with a separate article of the Rome Statute, 27.

  5. I disagree much more strongly with your second point. The ASP has the authority to amend the Rome Statute and to amend the Rules; it has no authority whatsoever to interpret either. Had the ASP amended the Rome Statute, as it should have, the AC’s decision in Ruto would be moot. But it did not, so the AC has every right to say that the new Rule 134quater is inconsistent with Art. 63(1) of the Rome Statute as they have interpreted it. That interpretation is still valid, absent an amendment to Art. 63(1) — Art. 63(1) means what the AC says it means, and the ASP has now said that Art. 63(1) (and Art. 27) mean something completely different. The last thing the AC should do, therefore, is defer to the ASP; it needs to — and I think it will — affirm that it has the final say over what the Rome Statute and Rules mean, not the ASP. And that is especially important given that the ASP quite deliberately avoided amending the Rome Statute in favour of amending the Rules.

    In other words, I completely agree that the ASP can overrule the AC’s interpretation of Art. 63(1) — by amending Art. 63(1).

  6. The new excusal decision of trial chamber V(a) was pronounced orally. Before one should venture into any more substantial analysis and critique,  one would thus have to await the full written version, the dissent, and the separate opinion. Hence, I must limit this to a few rather general observations and comments.

    Some will be shocked by the decision, but few will  be surprised. Basically, it could be seen either as a display of childish obstinacy (it is not an infrequent occurence in national Civil Law jurisdictions that first-instance judges at times stubbornly and repeatedly resist the pedagogic attempts of their appeals and revision/cassation colleagues), or as a willful attempt of sending the question as quickly as possible up again to the appeals chamber, so that this one may produce a leading decision on the new norms. It would therefore be expected – and hoped – that leave to appeal be given.

    That said. the three briefs were remarkable, each in their own way; but OTP’s was indeed outstanding and shining, as Kevin above had correctly remarked.

    The oral pleadings were different. Karim Khan was waffling as usual, his rants all glazed over with his usual sticky sauce of Your Honours, and May It Please This Court. Steynberg was much preciser and more nuanced. But what counted here, was not the show, nor was it the inappropriate display of a bench holding an academic mock examination of the lawyers while it had already made up its mind (Fremr also asked various times).

    No, what I see as important, was on one hand the interpretation  of rule 134quater (as expected by many, the trial chamber upheld the validity of the changed norm in principle, and rejected the charming and stringent, but too academic “ultra vires” argument of a breach of normative hierarchy).

    On the other hand, it was about the standard of substantiation that the applicant was to fulfill. Here, the clear position of prosecution was compelling, and the benign standard of the trial chamber plain wrong. What we have in the present decision, is STILL in essence a blanket excusal with some frills and bells, not an excusal limited to specific hearings.

    Thirdly, the decision was strongly about language and semantics (notably whether the changed rule uses a strict superlative – as the OTP opines – or rather an elative, as I  think).

    And lastly, importantly, the decision sends a signal. The LRV had before underlined this very strongly and emotionally in his brief. A wrong signal. A signal of bending right before might, a signal against the victims, a signal against justice to be seen (rather than only to be asserted in Sunday speeches of itinerant judges). It is to be hoped that the appeals chamber will correct this, and will restitute the principles of the Rome Statute, while still allowing for the accused’s due excusal in proper and single instances.

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