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Africa

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…

Can the ASP Permit Trial by Skype?

by Kevin Jon Heller

As Mark Kersten discusses today at Justice in Conflict, one of the reasons the Security Council rejected Kenya’s request to defer the Kenyatta and Ruto prosecutions is that it believes the issue of their presence at trial is better addressed by the Assembly of States Parties. Here is how Mark summarizes what could happen at the ASP:

At this year’s ASP, Kenya is hoping to see a number of amendments to the Rome Statute adopted. Chief among them is a change to provisions pertaining to whether an accused (and especially a Head of State) is required to be continuously present and his/her trial in The Hague. The problem for Kenya, however, is that even if a sufficient number of ICC states parties agreed to amend the Rome Statute, those changes would only come into effect after one year. Kenyatta’s trial is due to begin in early February, less than three months from now.

Consequently, Kenya will also seek amendments to Rule 134 of the ICC’s Rules of Procedure and Evidence. In particular, the ASP will examine proposed amendments to sections pertaining to the ‘presence’ of defendants during their trial. In plain language, proposals will be made to amend this rule in order to: 1) allow a defendant to be ‘present’ during trial via “video technology” and 2) allow a defendant to be personally excused at trial but be ‘present’ during trial via his/her counsel. There is every indication that other member-states, as well as the Obama administration, are inclined to support these amendments. Crucially, and unlike the proposed changes to the Rome Statute itself, if these amendments are passed by a two-thirds majority of states parties at the ASP, they would take effect immediately. An ICC trial by Skype is emerging as a real possibility.

Mark argues that “The ASP faces two key hurdles: first, any amendments have to be consistent with the Rome Statute and, second, any amendment will have to jive with previous Appeal Chamber decisions.” I don’t think the second issue is particularly important: if the ASP amends the Rome Statute or the RPE, that amendment would presumably trump any judicial interpretation of the provision’s previous incarnation.

The first issue, however, is critical — and I don’t see how the ASP can get around the amendment provisions in the Rome Statute by amending RPE 134 instead of Art. 63(1) itself. Rule 134 says nothing about the defendant’s presence at trial; it simply establishes the procedures governing motions relating to trial proceedings. More importantly, as Mark notes, the RPE are subordinate to the Rome Statute — and Art. 63(1) specifically provides that “[t]he defendant shall be present at trial.” There is no question that “presence” in Art. 63(1) refers to physical presence; after all, Art. 63(2) provides that “[i]f the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused.” Presence also means physical presence throughout the RPE, as indicated by, inter alia, Rules 122, 123, and 124 (concerning the defendant’s presence at the confirmation hearing.)

Given the clear meaning of Art. 63(1), I don’t think the ASP can excuse Kenyatta and Ruto from being physically present at trial by redefining presence in the RPE. Indeed, I think it would be disingenuous for the ASP to try. The problem, of course, is that amending Art. 63(1) would not help Kenyatta and Ruto; as Mark notes, unlike amendments to the RPE, amendments to the Rome Statute do not immediately take effect. In fact, Mark significantly understates how long it would take for an amendment to Art. 63(1) to be activated: pursuant to Art. 121(4), non-substantive amendments come into force one year after 7/8 of States Parties have accepted the amendment, not one year after the amendment is approved by the ASP. That could take years.

We’ll see what the ASP does. Colour me skeptical, though, that the Security Council made a wise decision by punting the presence issue to the ASP.

Appeals Chamber Ensures Ruto & Kenyatta Won’t Cooperate with the ICC

by Kevin Jon Heller

In a unanimous decision, the Appeals Chamber has reversed Trial Chamber V(a) and held that Ruto is required to continuously attend his trial, with exceptions to be granted only in exceptional circumstances. The decision is limited to Ruto, but it clearly applies to Kenyatta, as well, whom Trial Chamber V(b) has also excused from continuous presence.

It’s decisions like these that make me despair for the long-term viability of the Court. From a policy perspective, the decision is a disaster — it basically ensures that Ruto and Kenyatta will stop cooperating with the Court. Even worse, the decision will almost certainly engender considerable sympathy for the two men; after all, whether the ICC likes it or not, Ruto and Kenyatta were democratically elected to run a state critically important to African security. They are not Omar al-Bashir, who came to power in a coup and maintains power through fraudulent elections. Nor are their crimes as grave or their guilt as obvious.

Unlike the Trial Chambers — especially in the Kenyatta case — the Appeals Chamber seems completely oblivious to the obvious implications of its uncompromising position. Here is its list of rationales for requiring continuous participation (para. 49):

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.

The most obvious response is this: Ruto and Kenyatta will play no role at all in “promoting public confidence in the administration of justice” if they do not show up for trial. But beyond that, the Appeals Chamber’s rationales are either irrelevant or equally compatible with a more flexible approach to presence. Presence at trial is indeed important for an accused’s ability to understand the evidence against him — but it’s not the Court’s role to make sure the accused make smart strategic choices. There is no relationship at all between confronting an accused with the evidence against him and creating a comprehensive record, especially given that he cannot be forced to testify against his will (Art. 67(g) of the Rome Statute). And although it’s certainly possible that an accused’s absence may have a detrimental impact on the morale of victims and witnesses, I imagine most are more concerned with a conviction (and at least some would probably prefer not to have to give evidence in front of their victimizer).

These are policy concerns, of course, and the Appeals Chamber was faced with a legal issue — whether the Rome Statute requires an accused to be continuously present at trial. Indeed, I would have respected the Appeals Chamber if it had adopted the OTP’s argument and simply held that Art. 63(1) means what it says: “The accused shall be present during the trial.” An absolute presence requirement is obviously consistent with Art. 63(1) — and is generally if not unequivocally supported by the drafting history of the provision.

But that is not what the Appeals Chamber did. Instead, it tried to have it both ways — rejecting an absolute presence requirement and denying Trial Chambers the discretion they need to fashion a presence requirement that will ensure Ruto and Kenyatta show up for trial. Here is the key paragraph:

62. From the foregoing, the following limitations on the discretion of the Trial Chamber to excuse an accused person from presence during trial may be derived: (i) the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.

This is the worst of both worlds — the kind of mushy, divorced-from-the-text-of-the-Rome-Statute approach to Art. 63(1) that makes the Court seem callow and capricious. Indeed, the Appeals Chamber’s decision sends precisely the wrong message to Kenyatta and Ruto: “hey guys, it’s true that the Rome Statute doesn’t require your continuous presence. But it requires it more often than the Trial Chamber thinks it does. So you’ll just have to hope that the Trial Chamber will apply the test we pulled out of thin air in a manner that doesn’t make it impossible for you to both run Kenya and cooperate with the Court.” I think we know how that will turn out.

Once again, the ICC has shot itself in its foot. Deferral by the Security Council is looking like a better option by the day.

Libya’s Magic Security Situation and al-Senussi’s Right to Counsel

by Kevin Jon Heller

One of the most distressing aspects of the admissibility decision in al-Senussi is PTC I’s remarkable unwillingness to question Libya’s strategic invocation of its precarious “security situation.” As described by Libya, that situation really is magic — somehow managing to prevent the Libyan government from doing anything to protect al-Senussi’s rights without preventing the government from prosecuting al-Senussi.

Consider the issue I discussed in my previous post – Libya’s failure to provide al-Senussi with an attorney. Here are the PTC’s two relevant statements, from paras. 292 and 307:

In the Chamber’s view, the fact that Mr Al-Senussi’s right to benefit from legal assistance at the investigation stage is yet to be implemented does not justify a finding of unwillingness under article 17(2)(c) of the Statute, in the absence of any indication that this is inconsistent with Libya’s intent to bring Mr Al-Senussi to justice. Rather, from the evidence and the submissions before the Chamber, it appears that Mr Al-Senussi’s right to legal representation has been primarily prejudiced so far by the security situation in the country.

It appears, by Libya’s own admission, that the fact that Mr Al- Senussi is yet to obtain legal representation is primarily due to “security difficulties”.

The first thing to be said is that Libya blaming its failure to provide al-Senussi with counsel on its security situation is not an “admission” – it is Libya’s preferred framing of the issue. Libya is desperate to prevent the ICC from reaching the opposite conclusion: namely, that al-Senussi lacks counsel because the government has done everything in its power to prevent him from obtaining one. Were the PTC to (correctly) blame Libya for al-Senussi’s lack of counsel, Libya would have two problems: (1) the case for unwillingness would be greatly strengthened, because Libya’s intentional denial of al-Senussi’s right to counsel would threaten the viability of his prosecution once the accusation stage is complete; and (2) the case for inability would also be greatly strengthened, because Libya would not be able to plausibly maintain that once the security situation improves, there will be no impediment to providing al-Senussi with counsel.

To put it mildly, PTC I’s mantra-like invocation of Libya’s “security situation” is less than convincing. To begin with, the PTC never explains why the security situation in Libya prevents the government from providing al-Senussi with counsel. The PTC simply cites Libya’s reply and a Human Rights Watch press release, neither of which justifies its conclusion The one paragraph in Libya’s reply concerning al-Senussi’s lawyer (para. 146) claims only that “several local lawyers have indicated their willingness to represent Mr. Al-Senussi in the domestic proceedings.” The reply does not name those lawyers, nor does it provide any evidence in support of its claim that they exist. Moreover, the Human Rights Watch press release is revealingly entitled “Libya: Ensure Abdallah Sanussi access to a lawyer.” It does not attribute al-Senussi’s lack of counsel to the security situation in Libya; on the contrary, it specifically mentions the numerous times the Libyan court overseeing al-Senussi’s detention has ignored his request for an attorney, to which he is entitled even at the investigative stage of the proceedings.

Even more problematic, nothing in the record suggests that the security situation in Libya will somehow magically improve between now and the beginning of al-Senussi’s trial. As even casual Libya observers know, the security situation is getting worse by the day. Indeed, Judge van den Wyngaert, though joining in the admissibility decision, took the unusual step of appending a declaration to the decision expressing concern about the recent kidnapping of Libya’s Prime Minister and stating that she “would have preferred to seek submissions from the parties and participants as to whether Libya’s security situation remains sufficiently stable to carry out criminal proceedings against Mr Al-Senussi.” Even if it attributes al-Senussi’s lack of counsel to the “security situation,” therefore, PTC I has absolutely no reason to accept Libya’s assertions that it will be able to provide al-Senussi with counsel prior to trial.

And that, of course, is the problem with PTC I’s new “at the time of the admissibility decision” test for complementarity, which I criticized in my previous post. Al-Senussi’s lack of counsel may not threaten his prosecution right now — but it eventually will. And that is true regardless of whether al-Senussi’s lack of counsel reflects Libyan strategy or the security situation in Libya.