Guest Post: Kenyatta (Finally) Has to Go Back to The Hague

[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.]

The case against Kenyan President Uhuru Kenyatta has reached a critical juncture. Almost six months ago, Trial Chamber V(B) adjourned the commencement of his trial until 7 October “for the specific purpose of providing an opportunity for compliance by the Kenyan Government with outstanding cooperation requests” (para. 2). Three weeks ago, however, the Prosecution submitted that the start of Kenyatta’s trial should again be adjourned, because the Kenyan government would still not have fulfilled its cooperation requirements. In response, the Chamber decided on 19 September that it will hold two status conferences on 7 and 8 October to discuss “the status of cooperation between the Prosecution and the Kenyan government” (para. 11).

These conferences will determine the future, if any, of Kenyatta’s trial. Yet, before this ‘do-or-die’ moment, the Chamber first had to decide on another sensitive matter, namely whether Kenyatta would have to be physically present in The Hague for the second of the two status conferences. On Tuesday, the Chamber ruled, by Majority (Judge Ozaki partially dissenting), that Kenyatta indeed has to travel to The Hague. Assuming that Kenyatta will not disobey this direct order, this will be the first time that a sitting Head of State will appear before the ICC.

Kenyatta’s excusal request and the Prosecution’s response

In the initial decision announcing the status conferences, the Trial Chamber stated that “given the critical juncture of the proceedings and the matters to be considered, the accused is required to be present at the status conference on 8 October” (para. 12). Despite this clear language, Kenyatta’s defence requested the Chamber last Thursday to excuse Kenyatta from attending. Based on Rule 134quater of the Rules of Procedure and Evidence the defence argued that Kenyatta has to fulfil extraordinary public duties at the highest national level on the scheduled date, because he is due to attend the Northern Corridor Infrastructure Summit in Kampala, Uganda. The defence added that this meeting was arranged prior to the Chamber’s decision to convene the status conference and that Kenyatta would therefore also not be able to attend by video-link.

In the alternative, the defence requested to reschedule the status conference and that on this new date Kenyatta would be allowed to be present through video-link in accordance with Rule 134bis. Instead of travelling to The Hague, a ‘skype session’ would enable Kenyatta “to perform his extraordinary public duties as President of Kenya to the greatest extent possible while causing the least inconvenience to the Court” (para. 13).

In response to the defence’s request, the Prosecution submitted on Monday that Rules 134bis and quater are not applicable at this stage of the proceedings because Kenyatta’s trial has not yet commenced. According to the Prosecution, the Trial Chamber would have the (inherent) discretion to reschedule the status conference as well as to permit Kenyatta to attend by video-link. While not opposing the former option, the Prosecution as well as the Legal Representative for Victims (LRV) argued that the defence had given no clear reasons for attendance by video-link on a later date, other than the distance that the accused would have to travel and his status as Head of State.

The (in)applicability of Rules 134quater and bis

In my view, the first question that Kenyatta’s excusal request raised is whether Rule 134quater is in accordance with the Statute. I have argued in a previous post (and elsewhere) that this Rule goes beyond the scope of Articles 27.1 (“irrelevance of official capacity”) and 63.1 (“the accused shall be present during the trial”). In contrast to Trial Chamber V(A), which excused William Ruto earlier this year on the basis of Rule 134quater, I believe that this Rule is ultra vires under the Statute and could therefore not be relied upon by Kenyatta. Remarkably, both the Prosecution and the Chamber circumvented this (in)validity question (but see note 18 of the LRV’s submission).

For its part, the Prosecution focused on whether Rule 134quater as well Rule 134bis are applicable at the current stage of the proceedings. According to the Prosecution these Rules would only apply once Kenyatta’s trial has begun. It has been established by the Trial Chamber in a previous decision that the “true opening” of a trial is when “the opening statements, if any, are made prior to the calling of witnesses” (note 16). It seems evident, therefore, that Kenyatta’s trial has not yet commenced. The question that remains, however, is if the two Rules and the underlying Article 63(1) of the Statute do not cover status conferences of the Trial Chamber in preparation of the start of the trial, which provision does regulate the presence of the accused at this stage of the proceedings? Whereas Article 61 addresses the presence of the accused during confirmation hearings of the Pre-Trial Chamber, there is no specific provision on attendance during hearings of the Trial Chamber before the start of the trial.

In Tuesday’s decision, the Trial Chamber begins its analysis of Kenyatta’s excusal request by ‘answering’ this question. It considered that the obligation of the accused to attend the forthcoming status conferences arises “from the terms of his summons” (para. 18). This implies that the power of the Chamber to require the accused to attend at this stage of the proceedings does not derive from Article 63(1) but most likely from Article 64(6)(f) which allows the Chamber to rule on “any other relevant matters” (note that Chamber mentions on page 3 of the decision that it has considered this provision).

Whether this means, as the Prosecution argued, that Rules 134quater and bis do not apply before the start of the trial is not explained by the Chamber’s Majority decision (but see para. 2 of Judge’s Ozaki’s partially dissenting opinion). The Chamber simply stated that regardless of the applicability of these Rules, “the Chamber clearly has discretion to require or excuse the accused’s attendance at status conferences prior to the commencement of the trial” (para. 19). While I do not contest this finding, I think that the Chamber could have been more specific in explaining the legal basis of this discretion in relation to the two Rules; and especially in relation to Rule 134quater which, if valid, obliges the Court to grant an excusal if the relevant conditions are fulfilled.

Similar concerns may be voiced about the Chamber’s assessment of whether it should use its discretion in the given circumstances. The Majority deemed it sufficient to say that “the matters to be discussed at the status conference … directly impact on the interests of the accused, of victims and of witnesses” and that therefore “the requirements of justice necessitate the physical presence of the accused at the Court” (para. 20). The Chamber did not explain what these different conditions entail or how they relate, if at all, to the conditions mentioned in Rule 134bis and quater (especially the inadequacy of alternative measures could have been a relevant factor). As to the defence’s request to reschedule on a later date, the Chamber pointed out that the conference is convened on the same day at which the opening statement of the trial would have been expected to take place. The defence’s submission that Kenyatta’s trip to Uganda was planned before the scheduled conference would therefore be unpersuasive.

Would virtual presence have been an appropriate alternative?

In her partially dissenting opinion, Presiding Judge Ozaki agreed with the Majority that Kenyatta’s attendance is required and that the status conference should not be rescheduled. Yet, in her view, virtual presence through a video-link could have been an “appropriate alternative” at the current stage of the proceedings (para. 4). She mentioned the “subject matter of the specific hearings in question” as an important consideration for the exercise of the Chamber’s discretion to allow the accused to attend through video-link and noted that the status conferences pertain to the procedural direction of the proceedings, “rather than to evidentiary issues for which the physical presence of the accused may be of particular benefit” (paras. 3-4).

Generally speaking, I find this reasoning persuasive. Regardless of the legal basis of the Chamber’s discretion to allow attendance through video-link in the interim phase between the confirmation of charges and the start of the trial, the subject of the hearings should be the decisive factor in assessing whether the accused has to physically present. However, if physical presence is the rule and virtual presence the exception, than the accused should convince the Chamber that the exceptional measure of a video-link is appropriate. In the case at hand, I agree with the Prosecution and the LRV that the reasons given by the defence – i.e. Kenyatta’s status as Head of State and travel distance – do not justify special treatment. Based on the defence’s submission, virtual presence would not have been an appropriate alternative for physical presence.

Kenyatta’s last trip to The Hague?

Due to the decision of the Trial Chamber, Kenyatta will have to travel to The Hague for the first time in more than three years. I expect that he will go. Kenyatta has nothing to win by disobeying the Court now that his trial has come to a ‘do-or-die moment’. Surrounded by Kenyan ministers and members of parliament, he will stand in front of the cameras and plead his innocence. The international media will be there to witness the first appearance of a sitting Head of State before the ICC, but for Kenyatta it may very well be his last trip to The Hague. All depends on what the Chamber will say in the next few weeks.