July 2014

Emerging Voices: Extraordinary Exceptions at the ICC–What happened with Rule 134quater?

[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.] In November 2013, the Assembly of States Parties adopted Rule 134quater. Under the pressure of African States, the ASP agreed that the Trial Chamber should be able to excuse an accused from continuous presence at trial, when the accused “is mandated to fulfil extraordinary public duties at the highest national level”.

Rule 134quater 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 excused and to be represented by counsel only; the request must specify that the accused explicitly 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 interests 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.

While this amendment was welcomed by the international community – and most notably by the UK, the US and the AU – several commentators questioned its consistency with the Statute, and in particular with Articles 27.1 (“irrelevance of official capacity”) and 63.1 (“the accused shall be present during the trial”). An amendment to the Rules of Procedure and Evidence (RPE) may not extend the scope of Statute (Articles 51.4 and 51.5), but that is exactly what Rule 134quater seemed to do by deviating from the conditions that the Appeals Chamber (25 October 2013) had laid down for the Trial Chamber’s discretion to excuse an accused from continuous presence at trial. For this reason, Kevin Jon Heller predicted that the new Rule would “probably not” survive judicial review. So what happened? Did Rule 134quater pass the scrutiny of the Court’s Judges? Submission Prosecution Almost immediately after the ASP, Ruto submitted an excusal request under the new Rule, which essentially said that the Trial Chamber should excuse him for as long as he would be Vice-President. Rule 134quater would allow the Chamber to excuse an accused who fulfils extraordinary public duties from all trial hearings, because it would omit a restriction to the duration of an excusal. The Prosecution responded by questioning the consistency of this interpretation of Rule 134quater with the Statute. Remarkably, the Prosecution did not challenge the validity of the amendment, but argued that the new Rule could not “overrule the Appeals Chamber’s interpretation” (para. 30). In applying Rule 134quater, the Trial Chamber would have to respect all the conditions that the Appeals Chamber had listed, including that an excusal must be limited to what is strictly necessary. In addition, the Prosecution claimed that Ruto’s interpretation of Rule 134quater would be inconsistent with the equal treatment principle, which is set down in Articles 27.1 and 21.3 (the Statute shall be interpreted and applied “without any adverse distinction”). If the new rule would allow an accused to skip all hearings for as long as he or she is (Deputy-) Head of State, it “would create a regime under which two accused seeking the same relief … would be treated differently, based only on official capacity” (para. 3). The Prosecution argued that Rule 134quater would only be consistent with the equal treatment principle, if the amendment would be read as emphasizing the duties of the individual instead of the office that the accused fulfils. Finally, the excusal request would fail to distinguish Ruto’s extraordinary public duties from the “normal, day-to-day duties” that the Kenyan Vice-President has to perform. The Prosecution maintained that dealing with the aftermath of a terrorist attack (like the Westgate Mall bombing) would be an extraordinary public duty, but “opening new roads or welcoming a foreign dignitary would not be” (para. 41). For all these reasons, the Trial Chamber would have to decline Ruto’s request for a “blanket excusal” (para. 38). 

Emerging Voices: Horizontal and Vertical Dimensions of International Law in U.S. Courts

[Zachary Clopton is the Public Law Fellow at the University of Chicago Law School.] For decades, scholars and practitioners of international law in the United States have focused on the federal courts.  The combination of diversity, alienage, federal question, and Alien Tort Statute (ATS) jurisdiction largely justified this focus.  But in the wake of decisions such as Morrison and Kiobel, some of these scholars and practitioners have turned to state courts and state law to vindicate international norms (1, 2).  To give one example, New York state courts are adjudicating foreign-law claims against the Bank of China arising from its alleged facilitation of Hamas and Palestine Islamic Jihad attacks in Israel. The attention to states may prove to be a positive development, but notably it has tended to rely on judicially created rights—common law claims under state or foreign law, or customary international law.  What about state political branches?  Is there is a role for governors and state legislatures, and should internationalists spend some of their energy lobbying these state-level political actors? From a policy perspective, as well as from a doctrinal and constitutional one, international litigation in U.S. courts raises both horizontal (separation of powers) and vertical (federalism) questions.  Although some judges and scholars object to international law in all of its forms, and others applaud any expanded role for international law, acknowledging the independent horizontal and vertical dimensions opens up more nuanced options.

Emerging Voices 2014 Kicking Off Today

Last year's inaugural Emerging Voices symposium was a big success, so today we’re kicking off our second annual edition. Through mid-August, we will be bringing you a wide variety of posts written by graduate students, early-career practitioners and academics. Tune in over the next several weeks if you'd like to read more about litigation of international law in domestic courts, interstate arbitration, statelessness, and rape as a war crime--to...