In a majority decision, the judges of Kenya case one have accepted Deputy President William Samoei Ruto’s request to skip some of his upcoming trial hearings but with conditions.

Two out of three judges of Trial Chamber V(a) said in a 53 page decision issued on Tuesday that they agreed to allow Ruto be absent from part of his trial as long as he attended hearings the judges specified and if his absence was due to his duties of state. Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr also required that Ruto’s lawyers file by June 25 a signed copy of a court-prescribed waiver form.

Ruto’s trial starts on September 10 at The Hague-based International Criminal Court (ICC). He is facing trial together with radio journalist Joshua arap Sang. A lawyer for Sang told the court on May 14 that Sang will be present in person for the entirety of his trial, changing an earlier position when Sang’s lawyers had applied to the court for him to attend part of his trial via video link.

The court-specified hearings that Ruto is required to attend in person include the entire opening and closing statements of all parties and participants, the testimony of victims, and the delivery of the judgement. Judges Eboe-Osuji and Fremr also left it open for the court to determine which other parts of the trial Ruto will be required to attend in person.

They warned that a violation of any of their conditions may result in them revoking the limited excusal they have granted Ruto. They also warned that a violation of the conditions they have set may lead to the court issuing an arrest warrant against Ruto.

Judges Eboe-Osuji and Fremr made clear that Ruto has been charged in an individual capacity and not as Kenya’s deputy president because the charges against him were confirmed nearly 15 months before Ruto became deputy president:

A careful look at the Court’s Statute in its particular provisions and in its entirely, and its particular context, as well as its broader context of general international law, does not lead to a finding of inevitable incompatibility between the conduct of the inquiry into questions of Mr Ruto’s individual criminal responsibility, on the one hand, and, on the other, the granting of the Defence’s request for the excusal of Mr Ruto from continuous presence during his trial, in order to allow him to attend to his duties as Deputy President of Kenya.

The majority said that both international law and Kenya’s constitution required Ruto to stand trial if the case against him began before his election to high office.

They also made clear that their decision is not to be a precedent for future cases at the ICC because they reached their conclusions based on the particular circumstances of the Kenya case.

The majority also noted that the prosecution is investigating allegations of witness intimidation or interference in Kenya case one, which is not complete and has not implicated Ruto or Sang. In light of these investigations, the two judges commented on Ruto’s statement to the court on May 14 during a status conference in which Ruto reaffirmed his commitment to cooperating with the court.

“Fine words are not enough. Necessarily coming within that pledge are effective actions that Mr Ruto takes in good faith as the Deputy President of Kenya to ensure that witnesses and victims are not intimidated,” the judges said.

“Desirable actions in that connection should include impressing upon his supporters – regardless of his own awareness of their actual links to him – the need to refrain from any conduct or utterance that may reasonably create intimidating or harassing atmosphere for victims and witnesses,” the judges added.

Judge Olga Herrera Carbuccia disagreed with her fellow judges, arguing in her dissenting opinion that the Rome Statute required an accused person to be physically present for the entirety of their trial. She, however, also stated that there may be exceptional circumstances that warrant a diversion from this requirement.

All the judges on Tuesday dismissed an earlier application requesting Ruto and Sang be allowed to attend part of their trial proceedings via video link.