The prosecution and the defense in the two Kenya cases at the International Criminal Court (ICC) agree on one thing: the Rome Statute that guides the court’s work is silent on whether an accused person can attend their trial via video link.

The two sides, however, disagree on what that silence means. The prosecution argues the silence is deliberate because any accused person is expected to attend their trial in person under the Rome Statute. The lawyers representing victims in the two cases agree with the prosecution. The defense teams argue that the silence allows for trial judges to exercise their discretion in deciding the circumstance and conditions under which an accused person can attend their trial, including via video link.

The defense raised this issue during a status conference held on February 14, and the judges asked all involved to submit their legal arguments on the matter. The three accused in the Kenya cases are on summons before the ICC, which means their movements are not restricted. However, according to the conditions of their summons, once their trials begin, they are expected to attend all hearings in person.

The question of their attendance at the hearings has assumed greater significance since Kenya’s Supreme Court confirmed the election of Uhuru Muigai Kenyatta as President and William Samoei Ruto as Deputy President in March. Kenyatta faces five counts of crimes against humanity at the ICC and his trial is scheduled to begin on July 9, 2013. Ruto faces three counts of crimes against humanity and his trial, together with his co-accused, journalist Joshua arap Sang, is scheduled to start on May 28, 2013.

Steven Kay and Gillian Higgins, in their submission on behalf of Kenyatta, argued the legal justifications for the judges to allow the use of video link from time to time during the upcoming trial but did not explain why Kenyatta would need such an option. On the other hand David Hooper and Joseph Kipchumba Kigen-Katwa, in their submission on behalf of Ruto and Sang, offered an explanation why Ruto may need to attend his trial via video link.

Hooper and Kigen-Katwa described the use of video link as “presence at trial through other means,” in the submissions filed before the March 4 General Election.

“Depending on the outcome of Monday’s elections, or their subsequent ‘run-off,’ Mr. Ruto may become the Deputy President of Kenya. It is reasonable to seek to have some balance between such obligations and his duties to this court, duties that it is important to note he has consistently observed and will continue to do so,” the lawyers stated.

Both defense teams argue that Article 63(1) of the Rome Statute is clear that an accused is required to be present at trial but is not clear in what manner an accused may be considered to be present at trial.

“No such provision is specifically found relating to trial but the defence submits that it remains within the competence of a Trial Chamber to permit an accused to attend through video link and to determine the modalities of doing so,” said Hooper and Kigen-Katwa in their submission. “This arises from the inherent power that a court has to manage its proceedings, subject of course to such management being consistent with the fundamental object and purpose of the Statute.”

Kay and Higgins referred to the laws forming and decisions of the Special Tribunal for Lebanon, the Special Court for Sierra Leone, and the International Criminal Tribunal for the former Yugoslavia to support their submission.

ICC Prosecutor Fatou Bensouda, in response to the applications of Kenyatta and Ruto-Sang, stated the Rome Statute is only explicit about the use of video link in a situation where the accused has been kicked out of court for being disruptive requiring them to follow the trial proceedings from another room. She also argued that other international courts and tribunals have defined the presence of the accused as “physical presence.” Bensouda also pointed out that other international courts and tribunals do not explicitly require an accused person to attend their trial in person, which the ICC requires of every accused person.

“If witnesses are presumptively required to travel to the Court to testify, no less should be expected of the accused,” said Bensouda.

She also pointed out that the experience of the February status conference showed technology cannot be relied on to ensure the smooth and uninterrupted conduct of proceedings. Both Ruto and Kenyatta attended that conference via video link from Nairobi, while Sang traveled to The Hague. In the case of Kenyatta, the video link broke down at some points.

“If video link technology is used ‘from time to time’ as requested in the Defence application (which may result in the recourse of this practice on a regular basis), the cumulative effect of disruptions and delays in the proceedings may be significant,” concluded Bensouda.

Fergal Gaynor, the lawyer representing the victims in the Kenyatta case, noted that if the court grants the application for video link, it would be increasing the risk of flight by Kenyatta.

“The Trial Chamber might very reasonably conclude that Mr. Kenyatta’s incentive to cease to co-operate with the Court will increase as he hears first-hand the evidence against him, especially if he holds the office of President of Kenya with all its attendant powers and influence,” Gaynor stated in his submissions filed on March 8, one day before the Independent and Electoral Boundaries Commission declared Kenyatta the winner of the March 4 election. “It is also relevant, in considering flight risk, that Mr. Kenyatta has not denied that he has access to considerable wealth.”

Wilfred Nderitu, the lawyer representing the victims in the Ruto-Sang case, warned in his submission that if the court grants the defense applications, it risked being drawn into local Kenya politics.

“During the run-up to the Kenyan General election, various politicians and political analysts made reference to the ability of two of the accused persons in the Kenya cases to govern the country by way of internet technology from The Hague and attendance in Court by way of video link,” Nderitu wrote in his submission March 19. “It is submitted that the Court needs to remain alive to the implications and impact of allowing the accused persons to be present at the trial via video link on the authority of the Court, particularly in view of the likely perceptions by the Kenyan citizenry and victims.”

When asked by the judges to submit its observations in case one and case two, the Registry stated that to organize a video link between Nairobi and The Hague would require at least two staff members in Nairobi and one additional staff member in The Hague to manage the technical and legal requirements. The Registry noted that it would need to scout for a secure location in Nairobi so that once the equipment is set up it will not have to be moved after each session. The registry also said that it can assure a secure video link but will not be able to guarantee that the accused and their lawyers can have secure privileged telephone communication because any such communication will be taking place via the local mobile phone network.

In summary, the Registry estimated it would take two months to set up a video link between Nairobi and The Hague and would cost 49,600 euros for 12 months for each Kenya case.

The judges have not given a date by when they will make a decision on the matter, but they are expected to do so before the Ruto and Sang trial begins on May 28.