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Africa

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…

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

“We Have Waited Too Long for Our Freedom. We Can No Longer Wait.”

by Roger Alford

The drive from Paarl to Cape Town was only forty-five minutes. The plan was for Nelson Mandela to address the world at the Grand Parade, the great public square adjacent to the Fort of Good Hope, where South Africa’s founding father Jan van Riebeck had established a toehold for the Dutch East India Company in the 17th century. As Mandela drew near to the Grand Parade an enormous crowd enveloped his car. A massive hailstorm of joyous fists hammered down on the boot and bonnet. Well-wishers jumped on the car in celebration, and it began to shake violently. “I felt as though the crowd might very well kill us with their love,” Mandela recalled. Attempts to clear a path were futile and Mandela sat there, stranded in his vehicle for hours. After over ten thousand days of imprisonment, Mandela was now imprisoned by tens of thousands of his most ardent supporters.

Parade marshals eventually came to the rescue, and Mandela finally reached his destination several hours late. Standing on the balcony of the City Hall overlooking the Grand Parade, he looked down on “a boundless sea of people cheering, holding flags and banners, clapping and laughing.” He began his speech in his native Xhosa tongue, leading the massive crowd in the responsive chant that was a regular feature of anti-apartheid gatherings.

“Power!” Mandela bellowed with his fist raised.

“It is ours!” replied the cheering crowd.

“Power!” Mandela repeated.

“It is ours!” yelled the throngs.

“Africa!” chanted Mandela.

“Let it come back!” they chanted back.

“Let it come back!” Mandela replied.

“Africa!” they answered, in a crescendo that was decades in the making.

As the crowd settled down, Mandela embarked on a militant speech that embraced the battle against apartheid on all fronts. “Our struggle has reached a decisive moment,” Mandela said. “We call on our people to seize this moment so that the process toward democracy is rapid and uninterrupted. We have waited too long for our freedom. We can no longer wait.” Saluting communists and combatants, embracing international sanctions, and vowing to continue the armed struggle against apartheid, Mandela catered to his swelling ranks and flamed the fears of his nervous opponents. After twenty-seven years of internal exile, Mandela knew that the first step toward peace was to restore his leadership within the African National Congress.

White South Africans were shocked by Mandela’s fiery speech. The day before President F.W. de Klerk had assured them that Nelson Mandela was “committed to a peaceful solution and a peaceful process.” After hearing the speech, de Klerk felt deceived. “I realized once again that the road ahead would be extremely difficult.”

The great question that had vexed South Africa for decades was, “Not if, but when?” When would the dawn come? The sun-tipped mountains shone bright, but the great valleys, the valleys where old men and women scratched the red blood soil to survive, remained in darkness. “When,” in the words of Cry the Beloved Country, would “that dawn … come, of our emancipation, from the fear of bondage and the bondage of fear?” “Why, that,” Alan Paton concluded, “[was] a secret.” Forty years after that forlorn question was asked it remained an unanswered secret.

The answer did not come on February 11, 1990, the day of Mandela’s release. Nothing Mandela said that day assuaged white fears or emancipated black bondage. At most one could glimpse the first lights of the new dawn on the tips of the mountain. “The road ahead may be long and hazardous,” wrote Archbishop Desmond Tutu, “but at long last it seems what so many have prayed and fasted for … seems more attainable than ever before.”

President F.W. de Klerk, the one responsible for Mandela’s freedom, was more sanguine: “I was struck by an inescapable truth: an irreversible process had begun—and nobody could predict precisely how it would end.”

Will the New RPE 134 Provisions Survive Judicial Review? (Probably Not.)

by Kevin Jon Heller

The Assembly of States Parties (ASP) has adopted three new rules of procedure — RPE 134 bister, and quater — designed to minimize the obligation of accused to be physically present at trial. The OTP will almost certainly challenge the new rules. So will any of them survive judicial review?

Rule 134bis

Rule 134bis concerns video technology:

1.      An accused subject to a summons to appear may submit a written request to the Trial Chamber to be allowed to be present in the courtroom through the use of video technology during part or parts of his or her trial.

2.      The Trial Chamber shall rule on the request on a case-by-case basis, with due regard to the subject matter of the specific hearings in question.

The fate of this provision is tricky to assess. On the one hand, virtual presence does not conflict with the various rationales the Appeals Chamber offered in Ruto for requiring the accused to be present at trial:

The accused person is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein. It is important for the accused person to have the opportunity to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions between his or her recollection of events and the account of the witness. It is also through the process of confronting the accused with the evidence against him or her that the fullest and most comprehensive record of the relevant events may be formed. Furthermore, the continuous absence of an accused from his or her own trial would have a detrimental impact on the morale and participation of victims and witnesses. More broadly, the presence of the accused during the trial plays an important role in promoting public confidence in the administration of justice.

On the other hand, Art. 63(1) contemplates physical presence, not virtual presence. Art. 63(2) elaborates on the presence requirement in Art. 63(1) by permitting the Trial Chamber to remove the accused “[i]f the accused, being present before the Court, continues to disrupt the trial” — a clear indication that the drafters of Art. 63(1) were assuming physical presence when they drafted the Article. More importantly, though — and in direct contrast to the Chair of the ASP’s claim that Rule 134bis does not conflict with Art. 63(1) because “video-conference technology (VCT)… was not foreseen when the Rome Statute was drafted” — Art. 63(2) itself contemplates the use of videoconferencing, but only when a disruptive accused has been removed from the courtroom (emphasis mine)…

The Curious Timing of the Bemba Arrests

by Kevin Jon Heller

Two of the four men arrested on suspicion of witness tampering and manufacturing evidence in the Bemba case appeared before the Court today, along with Bemba himself. Not surprisingly, defence counsel for the defence counsel focused on the various ways in which the arrests will prejudice Bemba’s case:

Meanwhile, defense lawyers for the accused stated that the new charges had harmed the defense case of Mr. Bemba, whose trial for war crimes and crimes against humanity started in November 2010.

Xavier-Jean Keita, who represented Mr. Kilolo-Musamba, said the defense would write to the judge and raise questions about the timing of the new case. The defense would also “raise issues about the consequences on the main case and also talk about the involvement of the prosecution because the Office of the Prosecutor is a fully-fledged party to the main case.”

Defense lawyers also said Mr. Kilolo-Musamba’s iPad and Blackberry were seized during his arrest, yet they contained “the entire defense strategy” in Mr. Bemba’s ongoing trial.

Cuno Tarfusser, the single judge handling the case, said the items would for now remain in the custody of the court’s registry. The prosecution would only have access to seized documents and items that related strictly to the new charges.

Mr. Kilolo-Musamba, 41, deplored the “strong-arm tactics” Ms. Bensouda employed. He said allegations of forged evidence could have been dealt with during the ongoing trial rather than through an arrest warrant.

“I was surprised to be deprived of my freedom given that I spend most of my time in The Hague within the premises of [the ICC] where I have my offices,” said Mr. Kilolo-Musamba. “If she had called me in advance, I would have attended the summons.”

He said at the time of his arrest, he was coming from a meeting related to an ongoing investigation to help him to identify handwriting experts, and radio transmission specialists who were on duty in Bangui when a disputed radio transmission was made.

“That is the issue at stake,” said Mr. Kilolo-Musamba, referring to the radio transmission and contested handwriting on an undisclosed document. “It is a shame the prosecution made use of these tactics and this way harmed the defense of Mr. Bemba in the main case, which has come to an end as we were already drafting the final submissions.”

Kilolo-Musamba’s point about the timing of the arrests is a good one. Given how easy it was for the Court to apprehend the four men — a point noted by Mark Kersten — why seek their arrest now, literally days after the defence finished presenting its evidence? There is no longer any threat of witness tampering or evidence manufacturing. All that remains is for the defence is to finish the closing briefs — a phase in which the involvement of Bemba’s lead counsel and case manager will be particularly important. The arrests couldn’t have waited a few months until the briefs were written and filed?

The question, then, is what happens now. I don’t see how the Trial Chamber can continue Bemba’s trial in the absence of the two attorneys; to expect Bemba’s other attorney, Peter Haynes QC (who is excellent), to write the closing briefs by himself is unrealistic. So if the Trial Chamber cares about Bemba’s right to a fair trial, it will have to suspend the proceedings until the new allegations are resolved. We’ll see if that happens.

The ASP’s Respect for the Rome Statute

by Kevin Jon Heller

Article 51(4) of the Rome Statute:

The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute.

Article 63(1) of the Rome Statute:

The accused shall be present during the trial.

New Rule 134ter of the Rules of Procedure and Evidence:

An accused subject to a summons to appear may submit a written request to the Trial Chamber to be excused and to be represented by counsel only during part or parts of his or her trial.

Enough said.

A Note of Caution About the Bemba Arrests

by Kevin Jon Heller

The ICC has announced that four individuals associated with the Bemba case, including Bemba’s lead counsel and case manager, have been arrested on suspicion of witness tampering and manufacturing evidence:

On 23 and 24 November 2013, the authorities of the Netherlands, France, Belgium and the Democratic Republic of the Congo (DRC) acting pursuant to a warrant of arrest issued by Judge Cuno Tarfusser, the Single Judge of the Pre-Trial Chamber II of the International Criminal Court (ICC), arrested four persons suspected of offences against the administration of justice allegedly committed in connection with the case of The Prosecutor v. Jean-Pierre Bemba Gombo. This warrant of arrest in respect of the same charges was also served on Jean-Pierre Bemba at the ICC’s detention centre, where he has been detained since 3 July 2008.

On 20 November 2013, Judge Tarfusser issued a warrant of arrest for Jean-Pierre Bemba Gombo, his Lead Counsel Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo (a member of Mr Bemba’s defence team and case manager), Fidèle Babala Wandu (a member of the DRC Parliament and Deputy Secretary General of the Mouvement pour la Libération du Congo), and Narcisse Arido (a Defence witness).

Judge Cuno Tarfusser found that there are reasonable grounds to believe that these persons are criminally responsible for the commission of offences against the administration of justice (article 70 of the Rome Statute) by corruptly influencing witnesses before the ICC and presenting evidence that they knew to be false or forged. The suspects, it is alleged, were part of a network for the purposes of presenting false or forged documents and bribing certain persons to give false testimony in the case against Mr Bemba.

Commentators are celebrating the arrests. Mark Kersten, for example, writes that they “will likely (and hopefully) have a significant impact on the conduct of counsel – both prosecution and defence – with respect to the treatment of evidence and witnesses during trial.”

If Bemba’s lead counsel and case manager are guilty of witness tampering and manufacturing evidence, they deserve to be punished. But I’ll say this: the OTP better be right. Because if they are not — and all four arrestees are, of course, presumed innocent — the Court has deprived Bemba of his right under Art. 55(2)(c) of the Rome Statute to have “legal assistance of his choosing” and crippled his defense in the middle of trial. Lead counsel plays a critical role on a defence team, and in many ways a case manager plays an even more important role. So I have no idea what happens now with Bemba’s trial — although I suspect the Court will pretend new lawyers can simply slide into the roles previously occupied by the arrested lawyers, perhaps adjourning the trial for a month or so to give the new lawyers time to “get up to speed.”

Just curious: are the commentators celebrating the arrests willing to go on record and say that, if Bemba’s lawyers are acquitted, Bemba is entitled to a new trial when he is convicted?

Proposals for RPE 134 — and an Unsuccessful Defence of Trial By Skype

by Kevin Jon Heller

A couple of days ago, I blogged about proposals that will soon be debated at the ICC’s Assembly of States Parties (ASP) to excuse Kenyatta and Ruto from having to be physically present at trial. Colum Lynch has kindly posted the text of the two proposals, both of which would amend Rule 134 of the Rules of Procedure and Evidence (RPE). Here is the first one — which the Chair’s Compilation document does not attribute to a particular delegation, but is almost certainly Kenya’s:

4.      Notwithstanding paragraphs 1 to 3 above, if the accused is a sitting Head of State or Government, or a person entitled to act in such capacity, has prior to the commencement of the trial submitted to the jurisdiction of the Court (discussed alternative: “who is subject to a summons to appear”), appearance by such person throughout the trial may, if he or she so wishes, be by counsel, provided a notice in writing has been filed with the Court stating that the accused has explicitly waived his or her right to be present at the trial and the trial chamber is satisfied that the rights of the accused will be fully ensured in his or her absence.

There are two problems with this proposal. The primary one is that, as I explained in my previous post, it is inconsistent with Art. 63(1) of the Rome Statute, which requires the accused to be physically present at trial. Art. 51(4) of the Rome Statue 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.” Permitting the accused to be “present” at trial through his counsel, therefore, requires amending Art. 63(1), not Rule 134.

The other problem with the proposal is that it does not even purport to generally redefine the meaning of presence in Art. 63(1). Even if presence could be redefined through the RPE, there would be no justification for excusing only sitting heads of state from physical presence at trial. There is thus little doubt that the proposal is nothing more than an instrumental attempt by Kenya to get around Art. 63(1).

The second proposed amendment to Rule 134 is more interesting…