This morning the Appeals Chamber delivered its Judgment in the Ruto case on the Trial Chamber’s decision to excuse him for most of his trial. It found that 1) The Rome Statute (Article 63(1)) does allow a person to be excused from his trial in exceptional circumstances, contrary to what the Prosecutor had argued and 2) the Trial Chamber abused its discretion in excusing Ruto for most of his trial even before the start of it. As a result, the Trial Chamber decision was reversed.
Just a few thoughts on the interpretation of Article 63(1) and what this means for Ruto and Kenyatta.
1) The interpretation of Article 63(1)
This article provides that: “The accused shall be present during the trial.” In a nutshell, the question is whether this means that this is a duty and that he cannot be excused (which is what the Prosecutor argued) or whether this is a right that can be waived (which is what Ruto argued). I won’t go into the details of the argumentation on both sides, but for those who have an interest in question of interpretation international law, and as pointed out by William Schabas, these decisions, especially the Kenyatta one, provide some interesting insights on how to interpret the Rome Statute.
I have a lot of sympathy for the Trial Chamber’s interpretation of the Statute, in terms of common sense and policy, but I must say that the Prosecutor, as well as the Appeals judges who issued the separate opinion this morning have a strong case. The fact is that the Statute does not provide for this kind of excusal and Article 63(2) which explicitly provides for one situation of removal from court suggests that if other exceptions were considered, they should have been put in the Statute. The result of ignoring this is that we have a Trial Chamber and an Appeals Chamber disagreeing about something that does not exist and discussing the conditions of the exercise of a discretion that is not provided for in the Statute.
This is not the first time that this happens. ICC judges have invented powers for themselves out of thin air before, and then disagreed on how to exercise them. For example in relation to conditional release, which is not provided for in the Statute or in relation to abuse of process proceedings, again not provided for in the Statute. It is a little bit like Asimov and Philip K. Dick arguing about how to design an alien spaceship… it’s fun to listen to, but ultimately you cannot say that one is right or wrong because neither argument is grounded in reality…
At the end of the day, the criteria laid down by the Appeals Chamber for the exercise of discretion in excusing a person is no less or no more arbitrary than those adopted by the Trial Chamber and in this case, I don’t see how this is not the Appeals Chamber substituting, on the substance, its own opinion to that of the Trial Chamber.
2) What does it mean for Ruto and Kenyatta?
The obvious reading of the judgment would be that Ruto now has to attend his trial. This is not entirely true. The Appeals Chamber reversed the Trial Chamber decision on the basis that they erred in the exercise of their discretion. This means that the Trial Chamber could very well revisit the issue in light of today’s judgment and, applying the new criteria laid down and possibly concluding, while phrasing it differently, that Ruto needn’t participate at various stages of the proceedings. The result might be the same, it will just be more time consuming because rather than 1 decision, there will be dozens of them.
What about Kenyatta? His Trial Chamber issued a decision excusing him from his Trial last Friday, along the same lines as the Ruto decision. The Trial Chamber decision is an interesting academic exercise in treaty interpretation, but is even less legally technical in explaining the specific circumstances allowing an excusal that the Ruto decision. Which means that there is little doubt that the Appeals Chamber Judgment today would apply to it.
So what happens now? The logical thing to do would be that the Trial Chamber reconsider its decision in light of the Appeal Chamber’s Judgment. However, this is not procedurally possible as there is no provision on reconsideration in the Statute.
This means that the “long route” needs to be taken, with that the Prosecutor applying for leave to appeal the decision and, if granted, leading to the Appeals Judgment most certainly reversing the decision. This long process could have been avoided if the Trial Chamber had waited for the Appeals Chamber Judgment, as the Prosecutor had requested, but who cares about judicial economy?
If this goes to the Appeals Chamber, the appeal will probably be given suspensive effect, so Kenyatta will be required to attend his trial. It should be noted that the Trial Chamber does not have to grant leave to appeal, so if it really disagrees with the Appeals Chamber, it can just ignore its Judgment and move forward. This is unlikely to happen of course, but would be interesting to witness on such an important issue.
3) A broader comment on Kenya and the ICC
This judgment of course needs to be read in light with the general context surrounding Kenya and the ICC, and more particularly the attempt by the African Union to get the cases against Ruto and Kenyatta “frozen” by the UNSC, as I discussed here.
Interestingly, in a separate opinion in the Kenyatta decision last week, Judge Eboe-Osuji seemed to suggest that excusal from the trial was the best solution between no prosecution at all and full presence which would disrupt the exercise of his presidential functions by Kenyatta. If we buy this argument, then there is no longer any middle ground solution here and the only option left is a deferral of the case.
On this point, I take the opportunity of answering a question I got after my previous post on whether this situation would actually fall within Chapter VII (threat to peace). First of all, there is in fact no control of UNSC use of Chapter VII, so it doesn’t really matter what I think. If the UNSC thinks it’s a threat, then it’s a threat. Second of all, this is something we can argue about forever because I think that in the past, Chapter VII was arguably used in situations that did not justify it.
Finally, if one does want to debate it, I think that Kenya’s best ally in arguing for this is ICC Prosecutor Bensousa! Indeed, in her most remarkable press release after the Westgate incident, she suggested that this could be considered as an international crime and therefore of concern to the ICC and the international community as a whole. If the Prosecutor of the ICC thinks so, then why should the UNSC not consider the same event as being a threat/breach to the peace justifying a deferral of the cases allowing Ruto and Kenyatta to deal with the situation?
Spreading the Jam 