AMINA MOHAMMED has done nothing – ICC judges still have power to decide UHURU/ RUTO excusal At the end of the Assembly of State Parties, Kenya’s Foreign Secretary Amina Mohamed took to social media, triumphantly declaring that “today is a win for our country and a win for our continent. No one should underestimate the unity of Africa.” She was referring to the decision of the Assembly which amended the rules of evidence as part of Kenya’s multiple-pronged efforts to save President Uhuru Kenyatta from facing the International Criminal Court, before which he has charges for his alleged role during the post-election violence of 2007/2008. But what exactly did these amendments achieve? To answer this question, the relationship between the Rome Statute, on the one hand, and the Rules of Procedure and Evidence, on the other, must be explained. The Rome Statute is the basic instrument that establishes and governs all aspects of the ICC. It is the “constitution” of the ICC. The statute mandates state parties to make rules of procedure and evidence to address the detailed management of trials. These rules derive from, and are subordinate to, the statute with which they must be consistent or be void. Kenya would have wanted the ASP to approve an amendment to the statute to provide for head of state immunity, consistent with the resolution made at the extraordinary summit of the African Union in October. However, such a proposal was time-barred and could not be discussed at the ASP. The African Union, however, forced the late inclusion in the ASP agenda of an item to discuss head of state immunity in a general, non-binding, manner. During this discussion, African states that had supported head of state immunity in Addis Ababa capitulated and failed to back Kenya’s quest for immunity. Kenya had also proposed an amendment to the rules of procedure to provide for the excusal of the President during the trial. Liechtenstein, Jordan and Botswana also suggested amendments of the rules similar to Kenya’s. The United Kingdom, pressured by the weight of the Security Council decision rejecting Kenya’s application for a deferral, offered its own amendment of the rules to enable the use of video technology as an alternative to physical presence. However, Kenya, enjoying the pressure under which it has put the UK, rejected this proposal. In the end, Kenya was prevailed upon to accept the UK proposal which all other delegations supported. Kenya wanted an automatic excusal from trial for persons mandated to fulfill “extraordinary public duties at the highest national level”. Although other states were prepared to allow the excusal, there was disagreement over whether this should be automatic or not. Most states were reluctant to make it automatic, arguing that the court should be allowed to decide this on a case-by-case basis. In the end, the text agreed on was that “persons mandated to fulfill extraordinary duties at the highest national level may submit a written request to the court to be excused from attendance” and to be represented by counsel and that, “the Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interests of justice and provided the rights of the accused are fully ensured.” Case-by-case The terminology of “case-by-case” was dropped from the final text, leaving much uncertainty if an excusal should be made once for the whole trial, or from time to time. In practical terms, therefore, when the Kenyatta case comes up in February 2014, his lawyers can apply to the court for an excusal arguing that, as President, he is weighed down by extraordinary duties in Kenya, and should not attend trial. Since Kenya failed to get the Assembly to take away the court’s discretion to adjudicate on such an application, it will be up to the judges to decide whether or not to grant the excusal. When Judge Sanji Monageng, the Deputy President of the ICC, met delegates at the ASP, she reminded them that rules of procedure, on which they were deliberating, are subsidiary to the statute and that since the statute requires presence at trial, they could achieve a change of this position through an amendment of the rules. Therefore, if Mr Kenyatta makes such an application, the court will still have to decide whether or not to allow him to skip his trial. Indeed, on the same day that the rule amendment was agreed on by the ASP, the ICC ruled that Mr Kenyatta must go for his trial in February. As a legal process, the amendments by the ASP are unhelpful and even confusing. They address an issue that rules of court cannot address since the statute does not allow that, and which, moreover, the court has already dealt with in its decisions. Further, they devalue the meaning of irrelevance of official status before the ICC, a foundational tenet of the statute. The amendments are, however, not without political implications. First, they signify that the ASP has caved in to Kenya’s pressure and is prepared to give Mr Kenyatta a trial of his liking, irrespective of the law. In this regard, Amina Mohamed’s triumphalism is on point. Second, they confirm that the ASP, which is the court’s political protector, has now turned hostile against the court, just like the AU before. The effect is that the ICC will come under immense political pressure to excuse Mr Kenyatta from trial irrespective of any other legitimate interests. Ambassador Amina is right to feel how she feels.
Posted on: Wed, 04 Dec 2013 07:38:21 +0000
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