Presence and Politics at the International Criminal Court
Since 2002, the International Criminal Court (ICC or the Court) in The Hague has aspired to “end impunity for the perpetrators of the most serious crimes of concern to the international community.” This pursuit has given rise to a contentious issue in two high-profile cases: whether high-ranking accused must be present at trial.
The resolution of this issue—resulting in amendments to the ICC’s Rules of Procedure and Evidence—has engaged a diverse array of actors, from the ICC Trial and Appeals Chambers to the UN Security Council and the African Union. This Insight provides an overview of this episode at the ICC and concludes by considering its implications for the Court’s future.
The Rome Statute of the ICC
The Rome Statute of the ICC (Rome Statute), the multilateral treaty that established the ICC, provides in Article 63 that the accused shall be present during the trial. It also stipulates procedures for removing disruptive accused from the courtroom, with the caveat that the measure be taken “only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.” Article 67(1)(d) further guarantees the right of the accused to be present at trial.
Other Rome Statute provisions, while not explicitly addressing presence at trial, relate to the issue. According to Article 27, the Statute applies equally to all persons without distinguishing based on official capacity, and an individual’s official capacity, whether as Head of State or other governmental capacity, does not exempt him or her from criminal responsibility. The Rome Statute also guarantees the presumption of innocence and requires that the Trial Chamber “ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.”
The Kenyatta and Ruto and Sang Cases
The presence of high-ranking accused at trial has recently arisen in two cases: The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Uhuru Muigai Kenyatta. In March 2013, while awaiting trial on charges of crimes against humanity relating to the violence following the 2007 national elections, Uhuru Kenyatta and William Ruto ran for and were elected President and Deputy President of Kenya, respectively. The Ruto and Sang trial began in September 2013, while the Kenyatta trial was then scheduled to commence on February 5, 2014. During pre-trial and trial, the accused were never placed in detention. Instead, they were “under the regime of summons to appear, on their own recognisances, and on their promises of continued cooperation with the processes of the Court.”
The Trial Chamber Decisions
In June 2013, in response to a request from the Ruto defense, Trial Chamber V(a) held by majority that Ruto may be excused from trial with certain exceptions: he would be required to attend the opening statements of all parties and participants, the closing statements of all parties and participants, victims’ in-person presentations of views and concerns, the delivery of judgment, and any other attendance that the Chamber directed. The majority also ruled that, if applicable, Ruto must be present for the entirety of the sentencing hearings, the sentencing, the victim impact hearings, and the reparation hearings. The majority further held that Ruto’s excused absence from trial must always be related towards performance of his duties of state. On October 18, 2013, a majority of the Kenyatta Trial Chamber excused Kenyatta from trial with the same exceptions, fully adopting the reasoning of the Ruto Trial Chamber majority and holding that “Ruto relief” was all the more applicable to President Kenyatta.
A majority of the Ruto Trial Chamber subsequently granted the Prosecutor leave to appeal two issues: (1) the scope of the presence requirement in Article 63(1) and the extent of the Trial Chamber’s discretion, if any, to excuse the accused from attending trial; and (2) whether the applicable law supports the Trial Chamber’s test for an excusal of the accused. Notably, Tanzania, Rwanda, Burundi, Eritrea, and Uganda filed joint observations, arguing that there was no legal basis to prevent the accused from discharging their political responsibilities in Kenya during trial, subject to the control of the ICC Trial Chamber.
The Appeals Chamber Decision
The Appeals Chamber reversed the Ruto Trial Chamber, holding Trial Chamber discretion under Article 63 to be “limited” and “exercised with caution.” The Appeals Chamber identified several limits on this discretion, such as that any absence must be limited to what is strictly necessary and that the accused must have explicitly waived his or her right to be present. The Appeals Chamber also recognized that, given that unforeseen circumstances could arise necessitating the accused’s absence, Article 63(1) is not an absolute bar to the continuation of trial proceedings without the accused.
In light of the Ruto Appeals Chamber Decision, the Kenyatta Trial Chamber reconsidered its original decision and held that Kenyatta must be present at trial as a general rule, with any future excusal requests to be considered on a case-by-case basis.
A Turn to Diplomacy
While such proceedings were ongoing in The Hague, the controversy surrounding presence of accused at trial at the ICC was also playing out in the African Union (AU), UN Security Council, and Assembly of States Parties to the Rome Statute (ASP).
The African Union and UN Security Council
Though African countries have called for withdrawals from the Rome Statute at least as early as 2009, their diplomatic attempts to halt and discredit the Kenya proceedings increased as the cases moved closer to trial. During an October 2013 extraordinary session of the African Union in Addis Ababa, the AU issued a “Decision on Africa’s Relationship with the International Criminal Court.” While affirming its “unflinching commitment” to fighting impunity, promoting human rights and democracy, the AU Assembly reiterated its concern regarding “the politicization and misuse of indictments against African leaders” at the Court, including the indictments against Kenyatta and Ruto. The AU thus decided that no international tribunal may commence proceedings against any African Union Head of State or government, thus “safeguard[ing] the constitutional order, stability and, integrity of Member States.” It also called for the suspension and postponement of the Kenyatta and Ruto trials, respectively, until the UN Security Council considered a Kenyan request for deferral. The AU also moved to create a special group to engage the UN Security Council and a “fast track” expansion of the mandate of the African Court on Human and Peoples’ Rights to try international crimes.
The following month, the UN Security Council rejected a Rwandan proposed resolution to suspend the Kenyatta and Ruto trials for one year. Seven Council members voted in favor of suspension (Azerbaijan, China, Morocco, Pakistan, Russian Federation, Rwanda, and Togo), none voted against, and eight abstained (Argentina, Australia, France, Guatemala, Luxembourg, South Korea, United Kingdom, and the United States).
The Assembly of States Parties
Less than two weeks later, at the twelfth session of the ASP, a Special Segment was held at the request of the African Union on “Indictment of Sitting Heads of State and Government and Its Consequences on Peace and Stability and Reconciliation.” The segment—which included a panel discussion with Professors Cherif Bassiouni and Charles Jalloh, and Githu Muigai, Attorney General of Kenya—reached a conclusion that amendment of the Rome Statute was unlikely but that there was “broad agreement” that the Rules of Procedure and Evidence (RPE) could be amended to address AU concerns. By November 27, 2013, the ASP adopted three new rules permitting the accused to not be physically present in the courtroom. First, Rule 134 bis permits the Trial Chamber to grant, on a case-by-case basis, the request of an accused subject to a summons to appear to be present through the use of video technology during parts of his or her trial. Next, Rule 134 ter provides that an accused subject to a summons to appear may submit a written request to be excused and represented by counsel during parts of the trial. The Trial Chamber shall only grant the request if satisfied that:
(a) exceptional circumstances exist to justify such an absence;
(b) alternative measures, including changes to the trial schedule or a short adjournment of the trial, would be inadequate;
(c) the accused has explicitly waived his or her right to be present at the trial; and
(d) the rights of the accused will be fully ensured in his or her absence.
According to the rule, Trial Chambers must consider such requests on a case-by-case basis, with regard for the subject matter of the specific hearings. Furthermore, any absence must be limited to what is strictly necessary, without becoming the rule.
Finally, Rule 134 quater regards accused who must “fulfill extraordinary public duties at the highest national level.” Under this rule, such accused may also submit a written request to the Trial Chamber to be excused and represented by counsel and explicitly stating his waiver of the right to be present at trial. The rule also mandates that the Chamber rule on such request expeditiously and grant the request when alternative measures are inadequate, it is in the interests of justice, and the rights of the accused are fully ensured.
The requisite two-thirds majority approved these amendments to the RPE.
In January 2014, the Ruto and Sang Trial Chamber, ruling on a defense request pursuant to Article 63(1) of the Rome Statute and Rule 134 quater of the RPE, conditionally excused Ruto from continuous presence at trial, provided he file a waiver and be physically present for essentially the same hearings enumerated in its June 2013 Decision. In making its determination, the Chamber reasoned that Rules 134 ter and quater clarified Article 63(1) of the Statute and were not inconsistent with any of the Statute’s other provisions. The Chamber also considered that all requirements of Rule 134 quater were satisfied. Though the Prosecutor subsequently applied for leave to Appeal the Trial Chamber’s decision, a majority of the Trial Chamber denied the motion. Furthermore, in September 2014, a majority of the Kenyatta Trial Chamber ordered him to appear at an October status conference it deemed a “critical juncture in the proceedings.” However, by December 5, 2014, the Prosecutor stated that she was withdrawing charges against Kenyatta on the ground that she lacked sufficient evidence for conviction, and on March 13, 2015, terminated proceedings in the case.
Furthermore, in June 2014, the African Union voted to amend the Protocol on the Statute of the African Court of Justice and Human Rights, potentially paving the way towards establishing a domestic forum that would prevent a case from reaching the ICC on the principle of complementarity. The Protocol—which will enter into force thirty days after the deposit of the instruments of ratification by fifteen Member States—governs the merger of the current African Court of Justice and the African Court on Human and People’s Rights into one main judicial organ of the AU. This Protocol has now been amended to include a provision regarding immunity for sitting AU leaders and senior state officials. As of July 2014, only five countries had ratified the Protocol.
Many themes emerge from this recent chapter at the ICC. First, it reaffirms that the ICC is a still-maturing institution, confronting sensitive legal issues of first impression that inextricably carry political implications. In that regard, the Trial and Appeals Chambers continue to each face challenges interpreting their legal mandate. Indeed, in the future, the Appeals Chamber may be called upon to revisit this issue and could strike down the recently-adopted rules as being inconsistent with Rome Statute provisions relating to the presence of accused at trial.
Second, the events of the past year have revealed the ASP’s willingness to proactively shape the RPE and course of proceedings, especially in legal matters with broader diplomatic implications. The ASP’s engagement has transpired alongside other regional or international institutions, such as the AU and UN Security Council. Some would say that the ASP has improperly interfered with ongoing proceedings and infringed fundamental values enshrined in the Rome Statute. Others frame the ASP’s actions as necessary and pragmatic, particularly in the face of threats of withdrawal from the largest regional group of states in the ICC system.
Finally, the Court continues to manage a complex relationship with Africa, especially given that all accused have thus far been African. The most recent developments regarding the African Court of Justice and Human Rights add another layer of complexity to this dynamic, given that the ICC may ultimately need to rule on the admissibility of future cases in which the African Court has jurisdiction.
The ICC’s mission of “end[ing] impunity for the perpetrators of the most serious crimes of concern to the international community” is undoubtedly a noble one. In light of this recent chapter regarding high-ranking accused, it is clearer than ever that the ICC must pursue this legal goal in the midst of complex political and diplomatic realities.
About the author: Steven Arrigg Koh is a Trial Attorney in the Office of International Affairs at the U.S. Department of Justice (Criminal Division). He previously served as Senior Fellow and Interim Attorney-Editor at the American Society of International Law. Koh has also worked as an Associate Legal Officer at the ICTY, Visiting Professional at the ICC, and law clerk to the Honorable Carolyn Dineen King of the U.S. Court of Appeals for the Fifth Circuit.
The views expressed herein are those of the author alone and do not necessarily reflect the views of the U.S. Department of Justice or U.S. government.
 About the Court, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx (last visited Apr. 29, 2015).
 Rome Statute of the International Criminal Court, art. 63 July 1, 2002, 2187 U.N.T.S. 90 [hereinafter Rome Statute], available at http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.
 Id. arts. 27, 64, 66.
 Prosecutor v. Ruto & Sang, Case No. ICC-01/09/01/11, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ¶¶ 8–9 (June 18, 2013) [hereinafter Ruto Trial Chamber Decision]. In 2007, a Kenyan election year, Uhuru Kenyatta and William Ruto were senior members of competing political movements and also members of two of the larger Kenyan ethnic groups. In the wake of the December election, political and inter-ethnic violence resulted in, by some accounts, 1,100 killed, 3,500 injured, and up to 600,000 forcibly displaced. Id. ¶¶ 4–5; Security Council: Bid to Defer International Criminal Court Cases of Kenyan Leaders Fails, UN News Centre (Nov. 15, 2013), http://www.un.org/apps/news/story.asp?NewsID=46499#.VUJFptJVhBc. On March 31, 2010, Pre-Trial Chamber II authorized the Prosecutor to open an investigation proprio motu in the situation in Kenya, which has been a State Party to the Rome Statute since 2005. Following the issuance of summonses to appear, six Kenyan citizens voluntarily appeared before Pre-Trial Chamber II in April 2011. The confirmation of charges hearings in the Kenyatta and Ruto and Sang cases took place in late 2011, and in January 2012, the Pre-Trial Chamber confirmed the charges of crimes against humanity against, inter alia, William Samoei Ruto, Joshua Arap Sang, and Uhuru Muigai Kenyatta, and committed them to trial.
 Situations and Cases, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx (last visited April 30, 2015).
 Ruto Trial Chamber Decision, supra note 4, ¶¶ 6–7.
 Prosecutor v. Ruto & Sang, Case No. ICC-01/09/01/11, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ¶ 110 (June 18, 2013). In her dissent, Judge Carbuccia reasoned that Article 63(1) is not only a fundamental right of the accused, “but also an obligation of the accused and a procedural requirement” in light of a plain reading of this and other provisions of the Rome Statute. Prosecutor v. Ruto & Sang, Case No. ICC-01/09-01/11-777-Anx2, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, Dissenting Opinion of Judge Herrera Carbuccia ¶¶ 4–7, 9–10 (June 18, 2013). Any excusal, she reasoned “cannot be made in abstracto” and “may be permissible in some specific and limited circumstances, where objective and reasonable circumstances exists” and only if the accused personally requests such authorization. Id.
 Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, ¶¶ 66–67, 127 (Oct. 18, 2013). Presiding Judge Ozaki dissented, reasoning that both the ordinary meaning of Article 63(1) and broader context of the Rome Statute require the accused to be present at trial, with a very limited discretionary power for the Chamber to grant conditional excusal on a case-by-case basis. Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11-830-Anx2, Partially Dissenting Opinion of Judge Ozaki (Oct. 18, 2013).
 Prosecutor v. Ruto & Sang, Case No. ICC-01/09/01/11 OA 5, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(a) of 18 June 2013 entitled “Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial,” ¶ 7 (Oct. 25, 2013) [hereinafter Ruto Appeals Chamber Judgment].
Id. ¶¶ 40–41. Subsequent requests by Ethiopia and Nigeria to submit amici curiae observations were rejected on the ground that they were repetitive and in order to avoid unnecessary delay. Id. ¶ 13.
 Id. ¶¶ 55–65.
 Id. ¶ 55.
 Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Decision on the Prosecution’s Motion for Reconsideration of the Decision Excusing Mr Kenyatta from Continuous Presence at Trial, ¶ 16 (Nov. 26, 2013).
 Dapo Akande, Is Kenya Pushing for a Mass African Withdrawal from the ICC?, EJIL: Talk! (Jan. 14, 2011), http://www.ejiltalk.org/is-kenya-pushing-for-a-mass-african-withdrawal-from-the-icc/.
 African Union, Decisions and Declarations, Extraordinary Session of the Assembly of the African Union, Decision on Africa’s Relationship with The international Criminal Court (ICC), AU Doc. Ext/Assembly/AU/Dec.1 (Oct. 12, 2013), available at http://www.au.int/en/sites/default/files/Ext%20Assembly%20AU%20Dec%20&%20Decl%20_E.pdf.
 Press Release, UN Security Council, Security Council Resolution Seeking Deferral of Kenyan Leaders’ Trial Fails to Win Adoption, With 7 Voting in Favor, 8 Abstaining, U.N. Press Release SC/11176 (Nov. 15, 2013), available at http://www.un.org/News/Press/docs/2013/sc11176.doc.htm; UN Rejects Africa Bid to Halt Kenya Leaders’ ICC Trials, BBC News (Nov. 15, 2013), available at http://www.bbc.com/news/world-africa-24961169. The U.S. abstained on the ground that the Court and Assembly of States Parties were the proper venues for resolving the dispute. Russia, by contrast, argued that the sponsors had presented “compelling arguments at a critical time for Kenya,” and China reasoned that Africa’s request was “a matter of interest to the entire continent.”
 Assembly of States Parties, International Criminal Court, Twelfth Session, The Hague, Nov. 20–28 2013, Special Segment as Requested by the African Union: “Indictment of Sitting Heads of State and Government and its Consequences on Peace and Stability and Reconciliation,” ICC-ASP/12/61 (Nov. 27, 2013), available at http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-61-ENG.pdf.
 Int’l Crim. Ct., R. Proc. Evid. 134 bis.
 Id. 134 ter.
 Id. 134 quater.
 See Rome Statute, supra note 2, art. 51.
 Prosecutor v. Ruto & Sang, Case No. ICC-01/09/01/11, Reasons for the Decision on Excusal from Presence at Trial Under Rule 134 quater, ¶ 10 (Feb. 18, 2014), available at http://www.icc-cpi.int/iccdocs/doc/doc1734492.pdf. The Chamber also included the requirement that the accused be present during “the first five days of hearing starting after a judicial recess as set out in Regulation 19 bis of the regulations of the Court.”
 Id. ¶¶ 48–61.
 Id. ¶¶ 62–78.
 Prosecutor v. Ruto & Sang, Case No. ICC-01/09/01/11, Prosecution’s Application for Leave to Appeal the Decision on Excusal From Presence at Trial Under Rule 134 quater, ¶ 1 (Feb. 24, 2014).
 The Chamber reasoned that its decision did not involve an issue that would significantly affect the fair and expeditious conduct of proceedings or the outcome of the trial, and further that an immediate resolution by the Appeals Chamber would not materially advance the proceedings. Prosecutor v. Ruto & Sang, Case No. ICC-01/09/01/11, Decision on ‘Prosecution’s Application for Leave to Appeal the Decision on Excusal from Presence at Trial under Rule 134 quater’, ¶¶ 17–19 (Apr. 2, 2014).
 Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Decision on Defence Request for Excusal from Attendance at, or for Adjournment of, the Status Conference Scheduled for 8 October 2014 (Sep. 30, 2014), available at http://www.icc-cpi.int/iccdocs/doc/doc1842118.pdf.
 ICC drops Uhuru Kenyatta charges, BBC News, Dec. 5, 2014, available at http://www.bbc.com/news/world-africa-30347019; Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Decision on the Withdrawal of Charges against Mr Kenyatta (Mar. 13, 2015), available at http://www.icc-cpi.int/iccdocs/doc/doc1936247.pdf.
 Protocol on the Statute of the African Court of Justice and Human Rights, art. 2, July 1, 2008, available at http://au.int/en/sites/default/files/PROTOCOL_STATUTE_AFRICAN_COURT_JUSTICE_AND_HUMAN_RIGHTS.pdf (“The African Court on Human and Peoples’ Rights established by the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights and the Court of Justice of the African Union established by the Constitutive Act of the African Union, are hereby merged into a single Court and established as ‘The African Court of Justice and Human Rights’.”).
 Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, African Union, art. 46A bis, No. STC/Legal/Min/7(I) Rev. 1, May 15, 2004 (“No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”).
 List of Countries Which Have Signed, Ratified/Acceded to the Protocol on the Statute of the African Court of Justice and Human Rights, African Union (Feb. 3, 2014), http://www.au.int/en/sites/default/files/Protocol%20on%20Statute%20of%20the%20African%20Court%20of%20Justice%20and%20HR_....
 Rome Statute, supra note 2, art. 51(5) (“In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.”).
 Situations and Cases, supra note 5. The Court may exercise its jurisdiction with respect to genocide, war crimes, or crimes against humanity in one of three ways: (1) a State Party refers to the Prosecutor a situation in which one or more of such crimes appears to have been committed; (2) the U.N. Security Council, acting under Chapter VII of the U.N. Charter, refers such a situation to the Prosecutor; or (3) the Prosecutor initiates his or her own investigation in respect of such a crime. Rome Statute, supra note XX, at art. 13. To date, the OTP has brought twenty-one cases in eight situations before the Court; all have related to African countries. Four of the situations have been State referrals: Democratic Republic of Congo (DRC), Northern Uganda, the Central African Republic, and Mali. The situations in Libya and Darfur, Sudan are Security Council referrals. Pre-Trial Chambers have authorized the Prosecutor to open investigations proprio motu in Kenya and Côte d’Ivoire.