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