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Africa

Could Moreno-Ocampo Represent LRA Victims at the ICC?

by Kevin Jon Heller

John Louth at OUP passes along the latest potential twist in Moreno-Ocampo’s career path:

The former prosecutor of the International Criminal Court (ICC), Mr Luis Moreno Ocampo, has offered to represent the victims of Barlonyo Massacre in the court.Barlonyo village in Agweng Sub-county, Lira District is where more than 400 people were massacred by suspected Lord’s Resistance Army rebels on February 21, 2004. A total of 301 people are buried at the memorial site in a mass grave.

However, more people are believed to have been killed in the attack as 11,000 people were in the camp at the time. “I have something to offer you, I want to be your lawyer,” Mr Ocampo told the survivors who gathered at Barlonyo to welcome him on Friday.

He then asked those in the crowd who lost relatives in Barlonyo massacre to raise their hands and all did. He then offered to represent them in court. Mr Ocampo said initially, it was thought only 200 were killed in Barlonyo but now he knows more people were killed.

“We can document that. The killing, abduction and the looting and we can present this to the ICC. We can request to expand the arrest warrant, the number of victims and the number of crimes and document well what happened here,” he said.

“We can present this to the ICC we can request to expand the arrest warrant we can expand the number of victims and number of crimes.” Mr Ocampo was invited to Lango region by Children of Peace, an NGO supporting the vulnerable and victims of the Barlonyo in Lira District

I have no idea whether Moreno-Ocampo actually intends to represent Barlonyo victims at the ICC, but it’s worth thinking about some of the potential ethical issues that such representation would involve. Like all counsel who are involved with the Court, Moreno-Ocampo would be subject to the Code of Professional Conduct for Counsel. The most relevant provision is Art. 12, “Impediments to representation”:

1. Counsel shall not represent a client in a case:

(a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or

(b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel’s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court.

I don’t think Art. 12(1)(a) would apply, because the OTP doesn’t have “clients” in the sense of private counsel — especially given that the victims of crimes have their own counsel, making clear that they are not represented by the OTP. But it would be interesting to see the OTP’s position, because it could at least plausibly argue that the provision would require Moreno-Ocampo to get its permission to represent the Barlonyo victims. There is no question that the Barlonyo case is “substantially related” to Moreno-Ocampo’s previous work on the LRA cases; after all, the OTP pursued those cases on his watch and Moreno-Ocampo was responsible for opening the Uganda investigation in the first place. And although the interests of the OTP and the victims often align, that is certainly not necessarily the case — see, e.g., the Lubanga controversy over sexual violence. So I could see Bensouda worrying that Moreno-Ocampo might pursue a strategy for the Barlonyo victims that was inconsistent with his previous work on the LRA cases.

Which leads to Art. 12(1)(b), the confidentiality provision. That provision could easily be fatal to Moreno-Ocampo’s potential representation of the Barlonyo victims, even if the OTP didn’t oppose it. No former member of the OTP could have had greater access to confidential information than Moreno-Ocampo; after all, he was the Prosecutor for eight years. Could he represent the victims without in any way revealing or relying on confidential information he had access to while he was the Prosecutor? I’m willing to give Moreno-Ocampo the benefit of the doubt that he would take his confidentiality obligation seriously, but I’m skeptical that he — or anyone in a similar position — could maintain the mental “Chinese wall” necessary to avoid information bleed. So I could very easily see the Court deciding that it would not be in the “interests of justice” — or in the interests of the victims themselves — to permit Moreno-Ocamo to represent the Barlonyo victims given his previous role in the Court.

I have no problem with Moreno-Ocampo using his clout and visibility to promote the interests of the Barlonyo victims. But I’m not sure whether he should actually represent them at the ICC. In my view, it would be difficult, if not impossible, for Moreno-Ocampo to navigate the exceptionally complicated confidentiality issues that would be involved in working on behalf of victims in a situation he was once responsible for investigating. We’ll see what happens.

Al-Senussi, Gaddafi Show Trial to Begin Next Month

by Kevin Jon Heller

According to Lebanon’s Daily Star, Libya intends to begin the trial on April 14, just a few weeks from now:

Seif al-Islam Kadhafi, Saadi Kadhafi and former spy chief Abdullah Senussi are among more than 30 officials from the ousted regime who are to stand trial on charges ranging from murder to embezzlement.

Former premiers Al-Baghdadi al-Mahmudi and Bouzid Dorda are also among those going on trial from April 14, Seddik al-Sour, spokesman for the state prosecutor’s office, told a news conference.

Charges against Kadhafi’s sons and aides include murder, kidnapping, complicity in incitement to rape, plunder, sabotage, embezzlement of public funds and acts harmful to national unity.

Saadi Kadhafi, who was extradited from Mali earlier this month, is to stand trial in the same case, said Sour.

His older brother Seif al-Islam, Kadhafi’s former heir apparent, is being held by rebels in the western city of Zintan who have refused to transfer him to Tripoli for the trial.

Sour said he could stand trial via video conference from his detention cell in Zintan.

There is still no evidence that either al-Senussi or Gaddafi have ever had access to a lawyer, despite Libya’s constant assertions to the ICC that the government is doing everything in its power to arrange representation for them. Can’t let a little thing like Libyan law get in the way of a good show trial. And, of course, the nice thing about a show trial is that there really isn’t any need for the defendants to prepare a defence.

It’s also difficult to avoid noting the irony of Sour’s suggestion that Gaddafi could be tried via video link — exactly what the Assembly of States Parties and the Trial Chamber (though not yet the Appeals Chamber) have said is fine in the Kenya cases. To be fair, Libya would use videoconferencing without Gaddafi’s consent, whereas the ASP’s backdoor amendment of the Rome Statute was designed to placate Kenyatta and Ruto. But once the ASP and TC proved willing to dilute the clear presence requirement in Art. 63(1) of the Rome Statute, it was only a matter of time before states began taking liberties with presence, as well.

The ICC Fiddles While Libya Burns

by Kevin Jon Heller

For quite some time I zealously followed all of the various filings in the Libya cases — by Libya, al-Senussi and Gaddafi, the Registry, the OPCV, everyone. I also regularly blogged about those filings. But I haven’t lately, as consistent readers will know. The reason?

The ICC judges seem to have lost all interest in actually making decisions.

The record is quite shocking. Take the admissibility challenges. The Pre-Trial Chamber rejected Libya’s admissibility challenge to the case against Saif Gaddafi on 31 May 2013, nearly ten months ago. And it granted Libya’s admissibility challenge to the case against al-Senussi on 11 October 2013, more than five months ago. Both sides immediately appealed the decisions, yet the Appeals Chamber has done nothing since. I’ve been hearing rumours lately that the Appeals Chamber is planning on resolving both appeals at the same time. That may reduce the judges’ workload, but it doesn’t justify letting the appeals languish well beyond what is reasonable.

But it’s not just the Appeals Chamber that is failing to do its job. Pre-Trial Chamber I deserves even harsher criticism. Not surprisingly, Gaddafi’s defence team has been trying desperately to convince the Pre-Trial Chamber to issue a finding of non-compliance against Libya regarding its failure to surrender Gaddafi to the Court. (Or to at least try to surrender him, given that he is still being held in Zintan.) The defence filed its its first request for a finding of non-compliance on 7 May 2013, and it has filed numerous similar requests since. Yet the Pre-Trial Chamber has still not issued a decision on any of the defence’s requests.

So what has Pre-Trial Chamber I been doing in the Libya cases? Not much. It has issued a grand total of three decisions in the past five months, none of which have been substantive. Here they are:

13/02/2014 ICC-01/11-01/11-511 Pre-Trial Chamber I Decision designating a single judge
11/12/2013 ICC-01/11-01/11-490 Pre-Trial Chamber I Decision on the “Request for Leave to Appeal against the ‘Decision on the Request for an order for the commencement of the pre-confirmation phase by the Defence of Saif Al-Islam Gaddafi’”
13/11/2013 ICC-01/11-01/11-477 Pre-Trial Chamber I Decision on the “Defence application on behalf of Mr. Abdullah Al Senussi for leave to appeal against the ‘Decision on the request of the Defence of Abdullah Al-Senussi to make a finding of non-cooperation by the Islamic Republic of Mauritania and refer

Although it’s bad enough that the Court’s judges feel no urgency to address al-Senussi’s situation, their willingness to turn a blind eye to Gaddafi’s detention is simply unconscionable. As his defence team notes in its most recent — and certain to be equally ignored — request for a finding of non-compliance, Gaddafi has now been held in solitary confinement without access to a lawyer (at least one not subsequently imprisoned unlawfully by the Libyan government) for more than two years. (27 months, to be precise.) That situation has been condemned not only by the United Nations Working Group on Arbitrary Detention, but also by the African Court of Human Rights, which determined more than a year ago with regard to Gaddafi’s detention that “there exists a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Detainee.”

Yet still the judges do nothing — fiddling while Libya burns.

Mueller on Kenya and the ICC

by Kevin Jon Heller

Susanne Mueller, who works at Boston University’s African Studies Center, has published a very interesting essay on the relationship between Kenya and the ICC. I want to bring it to our readers’ attention, because it’s published in the Journal of East African Studies, which many international-law folk may not normally read. Here is the abstract:

Kenya’s 2013 election was supremely important, but for a reason not normally highlighted or discussed. Uhuru Kenyatta and William Ruto’s run for president and deputy president as International Criminal Court (ICC) indictees was a key strategy to deflect the court and to insulate themselves from its power once they won the election. The paper maintains that the strategy entailed a set of delaying tactics and other pressures to ensure that the trials would not take place until after the election when their political power could be used to maximum effect to halt or delay them. However, unlike in 2007–08, the 2013 election did not result in mass violence. The Kenyatta–Ruto alliance united former ethnic antagonists in a defensive reaction to the ICC. The analysis has implications for theories seeking to explain why countries ratify and comply with treaties. It develops an alternative political economy argument to account for outliers like Kenya and has implications for international criminal justice and democracy in Kenya.

It’s an illuminating and persuasive argument, well worth the read if you are interested in Kenya and the ICC. A free copy can be downloaded here.

The Reprieve Drone Strike Communication I — Jurisdiction

by Kevin Jon Heller

Reprieve, the excellent British human-rights organisation, has submitted a communication to the ICC asking it to investigate NATO personnel involved in CIA drone strikes in Pakistan. Here is Reprieve’s press release:

Drone victims are today lodging a complaint with the International Criminal Court (ICC) accusing NATO member states of war crimes over their role in facilitating the US’s covert drone programme in Pakistan.

It has been revealed in recent months that the UK, Germany, Australia, and other NATO partners support US drone strikes through intelligence-sharing. Because all these countries are signatories to the Rome Statute, they fall under The ICC’s jurisdiction and can therefore be investigated for war crimes. Kareem Khan - whose civilian brother and son were killed in a 2009 drone strike – is at The Hague with his lawyers from the human rights charity Reprieve and the Foundation for Fundamental Rights who have filed the complaint on his behalf.

The CIA has launched more than 300 missiles at North Waziristan since its covert drone programme began and it is estimated that between 2004 and 2013, thousands of people have been killed, many of them civilians including children.

The US has immunised itself from legal accountability over drone strikes and the UK has closed its domestic courts to foreign drone victims. In a recent decision, the Court of Appeal in London ruled that it would not opine on the legality of British agents’ involvement in the US drone war in Pakistan, for fear of causing embarrassment to its closest ally.

The communication is a fascinating document to read, and it is quite damning concerning the effects of the CIA’s drone strikes. My interest in the communication, however, focuses on two critical legal issues: (1) whether the ICC would have jurisdiction over NATO personnel involved in the CIA’s strikes; and (2) whether it can be persuasively argued that those personnel have been complicit in the strikes. I’ll discuss the jurisdictional issue in this post and the substantive complicity issue in my next post.

As the communication acknowledges, neither Pakistan (where the drone strikes took place) nor the US (which launched the drone strikes) has ratified the Rome Statute. Reprieve nevertheless asserts that the ICC would have jurisdiction over NATO personnel involved in the drone strikes — particularly individuals from the UK, Germany, and Australia — on two different grounds (para. 7):

The Court’s jurisdiction over the crimes committed as a result of drone strikes in Pakistan arises in two ways. The first is (subjective) territorial jurisdiction on grounds that the attacks were launched from a State Party (e.g. Afghanistan), while the second is nationality (on grounds that there is a reasonable basis for concluding that the nationals of States Parties to the Rome Statute may have participated in crimes under the Statute.

It may seem odd that the communication spends time trying to establish that Art. 12(2)(a) of the Rome Statute, the territorial jurisdiction provision, includes subjective territoriality. Why not just invoke nationality jurisdiction, given that Reprieve is only asking the ICC to investigate “nationals of States Parties”? In fact, the communication’s move is actually quite clever — and necessary.

To see why, consider what Art. 25(3) says, in relevant part (emphasis mine): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…” The italicized language is critical, because the communication does not claim that the NATO personnel committed the war crimes themselves. On the contrary, Reprieve views those individuals as accessories to war crimes allegedly committed by CIA drone operators (para. 13; emphasis mine):…

AJIL Symposium: Response to comments on “A New International Human Rights Court for West Africa”

by Karen Alter, Larry Helfer and Jacqueline McAllister

[Karen J. Alter is Professor of Political Science and Law at Northwestern University, Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Jacqueline McAllister is Assistant Professor of Political Science at Kenyon College (as of July 2014).]

Many thanks to Solomon Ebobrah, Kofi Kufuor, and Horace Adjolohoun for their challenging and insightful comments our AJIL article, A New International Human Rights Court for West Africa. We are pleased to have provoked a debate about the drivers of legal integration in Africa and to see this debate linked to a larger set of literatures.  We hope that this symposium will encourage others to investigate the forces that have shaped regional integration projects around the world and to use evidence from ECOWAS to inform regional integration theory in general.

Our article attempts to stay on firm empirical ground and to generate as complete and accurate an account of the ECOWAS Court’s transformation as one can have at this moment in time.  But here is the rub—what does it mean to say “at this moment of time?”

There were many questions that we could not answer in research conducted only a few years after the events in question. For example, we did not interview the member state officials who debated the expansion of the Court’s jurisdiction.  This was in part due to a lack of time and money, but also because doing so was unlikely to yield different or more complete information.  The decision to extend the Court’s jurisdiction is recent and still contested.  This makes it tricky to interview participants, whose answers may be colored by or speak to the sentiments of the day.

Someday, African scholars may write a version of the recent book The Classics of EU Law Revisited, which examines foundational ECJ rulings fifty years later. The passage of time allowed EU historians to access personal archives and analyze the views of key individuals, and thereby reconstruct what happened before, during, and after these rulings.  We look forward to the day that our account of the ECOWAS Court is similarly dissected.  For now, here are our tentative answers to some of the questions raised in this symposium.

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AJIL Symposium: Can the ECOWAS Court Revive Regionalism Through Human Rights?

by Horace Adjolohoun

[Dr. Horace S. Adjolohoun is a Senior Legal Expert at the African Commission on Human and Peoples’ Rights. He recently completed his LLD thesis on Giving Effect to the Human Rights Jurisprudence of the ECOWAS Court of Justice: Compliance and Influence at the University of Pretoria.]

I agree with Alter, Helfer and McAllister that progressive judicial lawmaking may be risky, particularly in an environment where domestic politics are not in favor of a supranational court that limits the sovereignty margin of state organs. In the context of the ECOWAS Court of Justice (ECCJ), an interesting question could therefore be whether, by a purposive adjudication, the Court could read community law through its human rights mandate. The Court has repeatedly given a negative answer, and many have warned of the related risks, particular bearing in mind the fall of the SADC Tribunal. An association of factors makes me suggest that the chance could be worth taking.

The ECCJ is the official judicial body in which ECOWAS has vested the mandate to oversee the interpretation and application of norms adopted under the aegis of the Community (‘original’ Community law). I suggest that the African Charter has acquired the status of Community law because of its ‘constructive’ incorporation in ECOWAS instruments, particularly the 1993 Revised Treaty and the 2001 Governance Protocol. On the basis of the 2005 Court Protocol, the ECCJ has confirmed that status through its successive human rights judgments, starting from the first one in 2005. Article 31(1) VCLTTreaty law commands that interpretation of conventions should follow the ordinary meaning and not expand beyond the initial intention of the parties. Particularly, in the framework of regional integration arrangements, the ‘agency’ doctrine suggests that the Agent (here the ECCJ) may not usurp legislative functions by either interpreting the silence of the law in a particular direction (which I argue the ECCJ did in the Ugokwe case) or – and thereby – generating new norms that were not expressly formulated by law-makers (here, state parties)  (see Stone Sweet, 10-15). Some of the authors of the lead article support that approach in a previous work.

I agree that the silence of the 2005 Protocol regarding the well established international customary law rule of exhaustion of domestic remedies is as plain as was the lack of direct access for private litigants in the Afolabi era. Despite this, the ECCJ’s judges espoused purposive – and, in my view, ‘progressive’ – judicial lawmaking regarding exhaustion. The ECOWAS human rights ‘regime’ borrows from the African Charter-based system, which poses seven admissibility requirements for complaints to be accepted by the African Court and Commission. In the practice of the Commission, the rule of exhaustion is by far the one that attracts more contention. The 2005 ECCJ Protocol provides for ‘non-anonymity’ and ‘non-pendency’ as the two admissibility conditions.

From the foregoing, it is surprising that, in the course of lawmaking, ECOWAS states provided expressly for two ‘minor’ conditions, and remained silent for a ‘major’ condition, which has always attracted dispute. (more…)

AJIL Symposium: Regional Courts, Regionalism, Critical Junctures and Economic Integration in Africa

by Kofi Kufuor

[Dr. Kofi Oteng Kufuor is a Professor at the University of East London, UK.]

In November 2013 the ECOWAS Community Court of Justice threw out a case brought before it by Nigerian traders seeking a judgment that Ghana’s investment legislation which discriminated against ECOWAS nationals was inconsistent with ECOWAS law. The decision by the Court was surprising not only on account of it being a setback to the ECOWAS goals of a single economic market but it was also a blow to the supranational regime that the members created with the adoption of the Revised ECOWAS Treaty. Moreover, this decision was even more astonishing as it went against ECOWAS law and related protocols on the free movement of persons, right of residence and establishment.

The decision was also surprising in the wake of the efforts by the Court, carefully outlined in the paper “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice” by Alter, Helfer and McAllister (AHM), to extend its power. The research by AHM states that in the early stages of the Court’s power grab, economic union was sacrificed for the protection of human rights. At the core of the paper by AHM is that a constellation of actors, driven by a variety of interests, came together at a critical juncture in ECOWAS politics – there was widespread concern about the respect for human rights and humanitarian law – and this meeting of persons and policy space created an opportunity for the Court to expand its reach into the realm of human rights.

However, if we accept the core arguments of public choice theory then the Court could have exploited the petition before it to seize more power for itself. Thus public choice theorists studying international organizations will be surprised to see that this supranational moment has slipped especially with regard to an organization that still has compliance and legitimacy problems.

AHM assert that the decision to allow private interests to bring human rights suits before the ECOWAS Court was done at the expense of the Court serving as an engine for realizing the economic integration objective. The inference from this is that while a critical juncture appeared and thus an opportunity seized in the name of human rights, a similar opportunity is yet to come into existence for economic interests. However, looking at the rejection of the traders’ suit from a non-economic “irrational” point of view, the ECOWAS Court has struck a blow for re-connecting markets to society by abating neoliberal economic openness that subordinate Ghana’s investment law to ECOWAS law. Was the Court able to do so because the kind of interests that birthed the Court’s rights moment did not exist at the regional level? Inferred from AHM’s work the answer seems to be yes.

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AJIL Symposium: Comment on “A new International Human Rights Court for West Africa”

by Solomon Ebobrah

[Dr. Solomon T. Ebobrah is a Senior Lecturer at Niger Delta University.]

To date, ‘A new International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’ authored by Karen Alter, Larry Helfer and Jacqueline McAllister is arguably the most eloquent scholarly exposition on the human rights jurisdiction of the ECOWAS Court of Justice (ECCJ) by observers from outside the African continent. This brilliant piece of work is to my knowledge, also the only one yet in existence to have taken a multi-disciplinary approach to the study of the ECCJ. Based on their very thorough and painstaking empirical investigation, the authors have successfully (in my view) supplied answers to some of the nagging questions that political scientists and lawyers would have regarding the budding human rights mandate of the ECCJ. As they point out in their opening remarks, intrigued (as the rest of us are) by the sharp but successful redeployment of the ECCJ from its original objectives of providing support economic integration to a seemingly more popular but secondary role as an international human rights court, the authors apply this article for the purpose trying understand and explain the rationale and manner of this transformation.

The authors have made very compelling arguments in support of their theoretical claim that international institutions, including international courts adapt to changing norms and societal pressures such that rational functionalist goals do not exclusively determine how a given international institution ultimately turns after its creation. While I find myself in agreement with much of the article, it is in relation to this claim and the evidence supplied by the authors in proof thereof that I find my first challenge. (more…)

AJIL Symposium: Introduction to “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice”

by Karen Alter, Larry Helfer and Jacqueline McAllister

[Karen J. Alter is Professor of Political Science and Law at Northwestern University, Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Jacqueline McAllister is Assistant Professor of Political Science at Kenyon College (as of July 2014).]

The ECOWAS Community Court of Justice is an increasingly active and surprisingly bold adjudicator of human rights cases.  Since acquiring a human rights jurisdiction in 2005, the ECOWAS Court has issued more than 50 decisions relating to alleged rights violations by 15 West African states. The Court’s path-breaking cases include judgments against Niger for condoning modern forms of slavery, against Nigeria for impeding the right to free basic education for children, and against the Gambia for the torture of dissident journalists.

A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, recently published in AJIL, explains how a sub-regional tribunal first established to help build a common market was later redeployed as a human rights court.  We investigate why West African governments—which set up the Court in a way that has allowed persistent flouting of ECOWAS economic rules—later delegated to ECOWAS judges a remarkably expansive human rights jurisdiction over suits filed by individuals and NGOs. Our theoretical contribution explains how international institutions, including courts, evolve over time in response to political contestation and societal pressures.  We show how humanitarian interventions in West Africa in the 1990s created a demand to expand ECOWAS’s security and human rights mandates.  These events, in turn, triggered a cascade of smaller reforms in the Community that, in the mid-2000s, created an opening for an alliance of civil society groups and supranational actors to mobilize in favor of court reform.

The creation of a human rights court in West Africa may surprise many readers of this blog. Readers mostly familiar with global bodies like the ICJ, the WTO and the ICC, or regional bodies in Europe and the Americas, may be unaware that Africa also has active international courts that litigate important cases.  Given that ECOWAS’ primary mandate is to promote economic integration, we wanted to understand why its court exercises such far-reaching human rights jurisdiction.  Given that several ECOWAS member states have yet to accept the jurisdiction of the African Court of Human and Peoples’ Rights, the ECOWAS Court’s ability to entertain private litigant complaints—without first requiring the exhaustion of domestic remedies—is especially surprising.  We also expected that even if ECOWAS member states decided to create such a tribunal, they would have included robust political checks to control the judges and their rulings.

What we found—based on a review of ECOWAS Court decisions and more than two dozen interviews with judges, Community officers, government officials, attorneys, and NGOs—was quite different.  The member states not only gave Court a capacious human rights jurisdiction, they also rejected opportunities to narrow the Court’s authority.

Our AJIL article emphasizes several interesting dimensions of the ECOWAS Court’s repurposing and subsequent survival as an international human rights tribunal.

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Trial Chamber Conditionally Excuses Ruto from Continuous Presence

by Kevin Jon Heller

The decision was given orally, and no written decision is available yet. But here is what The Standard‘s online platform is reporting:

The International Criminal Court has conditionally excused Deputy President William Ruto from continuos presence at trial but with some conditions.

The judges outlined nine conditions during the Wednesday ruling. ICC Presiding Judge Eboe-Osuji in the oral ruling said: “The Chamber hereby conditionally excuses Mr Ruto from continuous presence at trial on the following conditions: As indicated in the new rule 134, a waiver must be filed. That’s one condition. The further conditions are these: in the case, two, when victims present their views and concerns in person, three, the entirety of the delivery of the judgement in the  case, four, the entirety of the sentencing hearing, if  applicable, five, the entirety of the sentencing, if applicable, six, the entirety of the victim impact hearings, if applicable, seven, the entirety of the reparation hearings, if applicable, seven, the first five days of  hearing starting after a judicial recess as set out in regulation 19 B I S of the regulations of the Court, and nine, any other attendance directed by the Chamber either/or other request of a party or participant as decided by the Chamber. The Chamber considers that the attendance of Mr Ruto pursuant to the requirement indicated in condition number  eight, being attendance and first five days of hearing  starting after a judicial recess, will require him to be present for today’s hearing and the next — sorry — starting  tomorrow and the next five days. However, in view of the need for Mr Ruto to deputise for the president of the Republic of Kenya during his absence from the country from the 16 of January 2014, Mr Ruto is excused from presence at  trial on the 16th and the 17th of January 2014. Mr Ruto shall, however, be present for the remainder of  the period indicated under condition number eight”.

Kenya shouldn’t get too excited about the Trial Chamber’s ruling. Remember: the Appeals Chamber reversed the Trial Chamber’s previous decision concerning Ruto’s presence and articulated a very different, and much narrower, interpretation of Art. 63(1) of the Rome Statute. The OTP was never going to win at the trial level; the Appeals Chamber is much more likely to take seriously the differences between Rule 134quater and the multi-part test it previously articulated and to consider whether the Rule is ultra vires.

We shall see.

NOTE: For more on the ruling, please see Alexander’s comment to my previous post. He raises the spectre — skeptically, to be sure — of the Trial Chamber refusing to grant leave to appeal. I agree that’s unlikely, but even the possibility foregrounds the irrationality of permitting a Trial Chamber to decide whether a party can appeal the Trial Chamber’s own adverse decision. Trial Chambers have routinely abused that power, particularly in the context of the legal recharacterization of facts under Regulation 55. I discuss a number of such instances in this essay.

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…