In association with the International Commission of Jurists

Author: Abel Knottnerus

01 Oct

[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
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18 Jul

[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). 
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