Dear Readers – Please find the below article, the second in 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.

For the first time, the International Criminal Court (ICC) may allow an accused to attend his trial part-time. A decision to allow William Samoei Ruto, Deputy President of Kenya, to be excused from continuous attendance at his trial is currently on appeal. Whether or not the decision is upheld, the fact that the accused is even having such a conversation with the panel of judges shows that these proceedings will be different from those that have gone before. Two elements in particular set the case apart: Mr. Ruto’s cooperation with the Court, and his position as Deputy leader of Kenya.

The ICC exercises jurisdiction over Mr. Ruto and his co-accused, radio producer Joshua Arap Sang, pursuant to a summons to appear, not an arrest warrant. Unlike most individuals that find themselves answering accusations of crimes against humanity, Mr. Ruto and Mr. Sang have not seen the inside of a jail cell. Though other accused have appeared before the ICC pursuant to summonses, this is the first time that trial proceedings have commenced at the ICC where the accused have walked through the main entrance with their lawyers, rather than through the security entrance in handcuffs. It is therefore crucial to get the dynamic between the at-liberty accused and the judges right in this case. Mr. Ruto’s request for excusal is a chance to set the tone, and in choosing to grant the request, subject to certain limitations, the trial chamber has apparently taken a conciliatory, yet measured approach. It remains to be seen whether the Appeals Chamber will uphold it.

Mr. Ruto is a serving, democratically elected politician whose alleged crimes occurred before his election to office. While his position does not grant him immunity from prosecution, it does make the case unique and remains a factor at the forefront of the judges’ minds. This is evident in the trial chamber’s decision, which characterizes the request as an “opportunity to consider how international law appears to accommodate the democratic process of public office elections within States.” While the Majority concluded that democracy as an international legal norm must yield to accountability for crimes against humanity, it nevertheless concluded that Mr. Ruto’s duties as Deputy President of Kenya constitute exceptional circumstances that warrant his excusal from continuous presence at his trial.

The ICC has indicted serving politicians before, but so far none have made it to the trial stage. Other international tribunals have tried serving politicians for international crimes (Limaj at the ICTY, for example), but none have cooperated to Mr. Ruto’s extent. The trial chamber was correct when it observed that Mr. Ruto’s unique circumstances make “this case different from the average case.”

But should Mr. Ruto’s uniqueness – the “exceptional circumstances” of his case – urge a departure from the ICC’s standard practice of mandatory attendance at trial? It’s a dangerous line for the trial chamber to tread. On one hand (and as the Prosecution argues in its appeal), because the ICC is charged with indicting persons who bear the greatest responsibility for the most serious crimes, it is likely other accused politicians might avail themselves of the opportunity to take time out from their trials to attend to official business back home.

On the other hand, accommodation of Mr. Ruto’s request could be a necessary concession that justice must give to politics in order for Mr. Ruto’s trial to happen. Does the trial chamber need to work with Mr. Ruto to avoid him joining the ranks of the politicians that happily avoid the long arm of the ICC’s Statute? I don’t believe so. The chamber has recourse to revoke its excusal or issue an arrest warrant in the event that Mr. Ruto fails to show. While it is unlikely that Kenya will jump at the opportunity to execute an arrest warrant against its own sitting Deputy Prime Minister, it is infinitely more difficult for Mr. Ruto to pivot into position as a fugitive from justice now that he has engaged with the ICC so cooperatively. For one thing, the credibility of his office rests upon his promise to cooperate. For the sake of the conduct of the trial come September, the trial chamber must constantly calibrate the measure of autonomy is has afforded Mr. Ruto.

The Appeals Chamber now has an opportunity to reign in this autonomy by overturning the trial chamber’s decision to excuse Mr. Ruto’s continuous presence. Whether the Appeals Chamber allows Mr. Ruto to play the role of part-time accused or it imposes attendance obligations identical to the accused in detention remains to be seen. As will be examined next, wherever the Appeals Chamber draws the line on attendance will have consequences beyond the balance of power in Mr. Ruto’s trial.