Dear Readers – Please find the below article, the last of a three-part series, written by Leah Campbell, a former Associate Legal Officer at the ICTY and Associate Political Affairs Officer at the UN Department of Political Affairs. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.
Much ink was spilled and hands were wrung in filings over how the trial chamber’s decision to excuse William Samoei Ruto, Deputy President of Kenya from continuous presence at trial would make the International Criminal Court (ICC) look. The Prosecution warned that excusing Mr. Ruto would have an “extremely negative impact on how the Court is perceived” and invite “a flood of excusal applications from accused who do not wish to attend trial.” Given that a blanket ruling on excusal at the outset of a trial has never before been made, it is reasonable to assume that certain stakeholders will be watching the Appeals Chamber closely. Two in particular will be watching: interested states and those accused of crimes under the ICC Statute.
It is likely that the Appeals Chamber will not address the issue of perception at all – though the issue is discussed by the trial chamber, it is not raised in the Prosecution’s appeal. Nevertheless, the appeal represents a crossroads moment for the ICC and the conduct of future trials – the message sent will inform the way that stakeholders interact with the Court and for that reason, perception warrants analysis.
The Prosecution is concerned that allowing an accused to waive their right to attend trial will create an image problem for the ICC. While introspection does not always sit well with strict statutory analysis, it cannot be denied that when it comes to bringing those most responsible for the most serious crimes to justice, the ICC cannot act alone. It needs friends. The Court cannot swoop in, pluck an accused from his or her home and force them into a courtroom the way domestic legal systems can – the impenetrable wall of sovereignty gets in the way. Though arrest warrants operate at the ICC to varying degrees of success, they only work when the necessary states cooperate. Without effective diplomacy, the Court is doomed to fail.
The ad hoc courts and tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), have a marginally easier time in this regard. Though still heavily reliant upon diplomacy to secure the appearance of an accused, the ad hoc courts and tribunals are at least afforded the luxury of being targeted in their approach: geography is limited and the mandate is finite. The ICTY, for example, was able to establish long-term working relationships with domestic and regional law enforcement agencies and use targeted diplomatic carrots such as European Union membership to great effect in support of its mandate. The ICC is a permanent court with an extremely broad reach, making states far more reticent to cooperate without defined parameters. It also presents challenges in the establishment of targeted, long-term partnerships. Not only does the ICC need friends, it has to work harder than other international courts and tribunals to win them over.
The question remains: does granting an accused partial excusal from attending his trial leave the ICC sitting by itself at lunchtime? The trial chamber thinks not, dismissing the Prosecution’s argument that granting Mr. Ruto’s request will reflect negatively on the ICC as “unpersuasive hyperbole with no hint of empirical support.” From one perspective, accommodating the accused’s request to waive a procedural requirement under the Rome Statute will portray the Court as pandering to the will of a high-profile accused. There is another way to characterize the message, particularly towards states that view the ICC as arrogant and disrespectful of sovereignty. Upholding the excusal decision could signal a willingness on the part of the ICC to ensure that the interests of justice are upheld in such a way as to respect the needs of a state under investigation and the democratic will of its people. The ICC will not swoop in and remove your democratically elected officials from power. Rather, it will pursue cooperation without compromising immunity.
Perception by interested states is one thing, but also relevant is the message that a confirmed excusal decision could send to other accused – those for whom an arrest warrant exists, as well as those under investigation. Three accused in particular will be watching – Mr. Banda and Mr. Jerbo, accused of committing war crimes in Sudan, are due to stand trial in May 2014 and the sitting president of Kenya, Uhuru Kenyatta, accused of crimes against humanity in Kenya, is scheduled to stand trial in November 2013. These men all appear before the ICC pursuant to summonses to appear and would presumably lead the charge towards the floodgates that the Prosecution fears.
The excusal decision can send several messages to these accused, as well as those individuals inclined to commit mass atrocity who do not yet find themselves the subject of ICC proceedings. From one perspective, the message states that if you cooperate with the ICC, you enjoy leverage to be demanding and exert some control over the conduct of the trial, especially if you hold senior political office.
Another message promotes the process as even handed: the ICC will respect and make concessions based upon the importance of your political office and the democratic will of your people, but will not compromise to allow impunity for mass atrocity. The situation in Kenya shows us that some accused are willing to cooperate with the ICC, and it is not unreasonable to assume that other indictees might consider a similar approach (although the assumption that a certain portion of accused will always act to defy the Court is just as, if not more, reasonable). If an accused can see that there is a middle way between a life on the run and detention following arrest, this can only be a good thing for the conduct of trials at the ICC. While I have no first hand experience inside the mind of one accused of crimes against humanity, I would venture a guess that Mr. Ruto and his excusal application might give such a person food for thought.
The Prosecution cautions against a flood of excusal applications should the trial chamber’s decision be allowed to stand. And rightly so – a Court with optional attendance for the accused lacks authority crucial to effective administration of justice. However, if the trial chamber’s test is properly applied in very limited circumstances, then couldn’t the creation of a middle way between evasion and apprehension be a good thing for a court so reliant upon diplomacy? The proof is in its application.
As Leah Campbell points out, the Trial Chamber’s decision to grant William Ruto’s request for excusal from continuous presence at trial is unprecedented. Notably, in no other case has the ICC afforded an accused person special privileges due to him holding high political office, nor has it allowed an accused person to be absent at trial hearings on a sustained basis (though in Bemba the trial hearings continued for very short periods in the accused’s absence while he was undergoing medical treatment).
Leaving aside the question of whether the Trial Chamber’s decision would actually prompt states and accused persons to cooperate with the Court, the important question of whether the decision complies with the Statute and other applicable law deserves some additional attention, here keeping in mind that perceptions of the Court are bound to questions concerning legality.
As I argue in further detail in a case note forthcoming with Cardozo Journal of International and Comparative Law (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2298603), the Trial Chamber’s decision relies on dubious interpretative methods which allowed the Chamber to circumvent the wording and intent of otherwise clear provisions in the Statute, notably Article 63(1) concerning the accused’s presence at trial and Article 27 concerning the irrelevance of official capacity and the obligation to treat all persons equally.
With respect to Article 63(1), as opposed to first looking at the text of the provision, which stipulates that “[t]he accused shall be present during the trial”, the Chamber took the starting point in reading the Statute as a whole, thus ignoring that conventional methods of treaty interpretation require that the text itself forms the basis of interpretation while context and the treaty’s object and purpose must inform its meaning. In this regard, the Chamber emphasized that Article 63(1) must be read in context of Article 64(6)(f), which gives it the powers to “[r]ule on any other relevant matter”. However, suggesting that Article 64(6)(f) authorizes the Chamber to rule in a manner that contradicts the text of any other provision pertaining to the trial seems is, to put it mildly, far-stretched. What is more, the drafting history clearly confirms that Article 63(1) should be understood to entail an obligation that the trial takes place only in the accused’s presence, a factor that the Trial Chamber simply ignored.
Importantly, the Trial Chamber also supported its departure from the text of Article 63(1) relying on the argument that while the provision does lay down a general obligation for the accused to be present at trial, this obligation does not extend to the Chamber. With this reading the Chamber seems to imply that it may nullify any duty arising from the Statute, so long as the relevant provision does not explicitly spell out that the Chamber is bound by the duty in question. But who would claim, for example, that a Chamber may rule that Article 54(1)(c), which stipulates that the Prosecutor shall “[f]ully respect the rights of persons arising under this Statute”, does not apply in a given case simply because the provision mentions only the Prosecutor, not the Chamber, as a duty-bearer?
Additionally, the test developed by the Chamber – whereby situations in which an accused person has “important functions of an extraordinary dimension to perform”, such as “the functions of the Deputy President of Kenya”, constitute “exceptional circumstances” that may make an accused’s excusal from presence at trial acceptable – is hardly compatible with Article 27(1), which states that the Statute “shall apply equally to all persons without any distinction based on official capacity”. Whereas the Chamber implied that it is acceptable to rule in a manner that contravenes the wording of the provision so long as the purpose of the provision – understood by the Chamber to ensure that public officials are not granted immunity for violation of international criminal law – is not “wholly defeated”, the rules of treaty interpretation do not allow a reading which clearly contradicts the text simply because doing so may not necessarily run counter to an objective of the provision.
While Campbell is right in stating that perceptions of the ICC, in part, depend on the Court’s ability to promote cooperation, perceptions of the Court certainly also depend on whether the Court is seen as an institution which interprets and applies the law in a reasonable manner. Should the Appeals Chamber agree with the Trial Chamber’s peculiar reasoning, this would likely lead to a loss of confidence in the ICC, not only among victims and witnesses but also among those who had expected that the Court would consider itself bound by principles of equality before the law, as spelled out in the Statute and other applicable law.