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The Price of Deference: Is the ICC Bowing to Pressure in the Kenya Cases?

Posted on Justice in Conflict September 16, 2013:


Prosecuting a sitting Head of State and his Deputy at the ICC was always going to be a complicated task. While the ICC can claim success in that the first of the two Kenya trials commenced Tuesday last week with William Ruto, the Deputy President of Kenya, present before Trial Chamber V(a), it is no secret that the trials are marred with controversy.

As the Prosecution continues to express concerns over the level of witnesses intimidation in the Kenyan cases, the Ruto Defence used his opening statement to deliver an all-out attack on the Office the Prosecutor, claiming that it is guilty of performing a “lazy prosecution”, being “indifferent to the truth” and constituting part of a “glaring conspiracy of lies”. At the same time, political leaders in Kenya – supported by countries in the region – are adding unprecedented pressure on the Court to have it their way. The African Union is reported to have planned an extraordinary summit to (once again) discuss what can be done to end the Kenyan ICC cases. And, as Mark discusses here and here, Kenya’s Parliament has been pushing for a withdrawal from the Rome Statute, although any action by the Kenyan government to this effect would have no impact on the obligation to cooperate with the Court with respect to the ongoing cases.

But there is another aspect to the enduring mobilization against the ICC which has so far received little attention, namely that political actors are increasingly focused on influencing the outcome of specific proceedings before the Chambers. This begs the question: is the Court able to deal with such pressure and protect its institutional interests?

During a status conference on September 9 – just one day before the trial hearings in the Ruto & Sang case commenced – Presiding Judge of Trial Chamber V(a) Eboe-Osuji announced that the Chamber had considered the matter of the two Kenya cases running simultaneously or on alternating days and had come to the conclusion that “running the cases simultaneously will not necessarily expedite them”. Accordingly, Judge Eboe-Osuji stated that it was “the Chamber’s preference that the Court sits on a four-weeks alternating period”.

Keeping in mind that two of three judges who sit on the Trial Chamber that is handling the Ruto & Sang case also have a seat in the Chamber that is handling the Kenyatta case, this might have seemed a reasonable decision, had it not been because the same Chamber, in a ruling of 29 August, rejected Ruto’s request that the Chamber sits on alternating periods on the basis that it would not be “an efficient way to conduct the proceedings in the present case”.

Curiously, this change of mind took place only one day after President Uhuru Kenyatta, whose trial is currently scheduled to commence on 12 November this year, made it clear that he would only continue to cooperate with the ICC if the Court’s schedule suits him:

 They should not make it impossible for the sovereign nation of Kenya to be led as its citizens democratically chose…We will work with the ICC but it must understand that Kenya has a constitution and Ruto and myself won’t be away at the same time…If they want us to cooperate, they must ensure that when Uhuru is there (at Hague) Ruto is in the country”

 One can’t help but speculate that the Trial Chamber’s reconsideration of the issue may somehow have been influenced by Kenyatta’s remarks, a suspicion that Judge Eboe-Osuji himself made no attempts at proving wrong when he failed to clarify what had made the Chamber change its mind.

The danger with making such decisions is that they easily give the impression that it is the accused, not the judges, who are in charge of the proceedings. The ICC’s legitimacy is not only contingent on the Court making sound decisions, but also on the appearance that these decisions are impartial and based on the Court’s preferences –  not the accused’s.

In a separate development last week, a number of African states engaged in what appears to be a well-coordinated attempt at influencing the Appeals Chamber’s soon-to-be-expected ruling on the Prosecutor’s appeal of the Trial Chamber’s decision to grant Ruto’s request for excusal from continuous presence at trial. Almost simultaneously, Tanzania, Rwanda, Burundi, Uganda and Eritrea filed applications with the Registry to be granted leave to file amicus curiae briefs under Rule 103(1) of the Rules of Procedure and Evidence. This is, to my knowledge, the first time that States Parties – not to mention non-States Parties – have sought the Court’s permission to file legal observations with respect to ongoing proceedings to which they are not parties and which do not directly affect any of their nationals.

The applications make it clear that it will be submitted that Article 63 of the Statute concerning the accused’s presence at trial must be interpreted in a “broad and flexible” manner. Put in simpler terms, the five States will argue that the Appeals Chamber should uphold the Trial Chamber’s ruling that Ruto, in light of his official functions in Kenya, should be excused from continuous presence at trial.

But there is clearly more to these applications than a wish to provide the Court with legal advice. By way of example, Tanzania’s application emphasizes that “the Appeal implicitly raises the issue of State cooperation”. In a similar tone, Rwanda’s application states that “there has been considerable debate, both at the domestic and international level, about whether non-state parties, such as Rwanda, need to sign the Statute”, and in this regard emphasizes that “the proper interpretation of Article 63 is germane to the current discussion on whether or not to become a state party”. Leaving aside that there are no good reasons to think that Rwanda is seriously considering becoming a State Party, these and other statements made in the applications clearly point to the extra-judicial nature of the anticipated filings.

This raises the question of whether they can be permitted at all. Rule 103(1) simply provides that a Chamber may, “if it considers it desirable for the proper determination of the case”, invite or grant leave to a State, organization or person to submit “any observation on any issue that the Chamber deems appropriate”. However, as Christoffer Wong points out, the Court’s case law has so far emphasized that “amicus curiae observations should be limited to matters of legal interest”. In the Kenya cases, Pre-Trial Chamber II allowed amicus curiae observations only on an “exceptional basis”, when it was of the view that such observations would provide “specific expertise” needed by the Chamber.

However, when on Friday September 13, the Appeals Chamber by majority granted the requests, the Chamber simply ignored the question of whether the amicus curiae briefs are likely to be limited to matters of legal interest as well as the question of whether the mentioned States are in possession of any relevant expertise on the matters at hand.

As dissenting Judge Anita Usacka points out, there may be serious implications of allowing observations from State Parties as well as non-State Parties which address issues relating to how judicial decisions may encourage or discourage State cooperation as well as ratification of the Statute.

Most obviously, should the States that drafted the Statute be allowed to influence the outcome of particular proceedings by raising issues that arguably amount to threats of non-cooperation and in other ways touch on fundamental aspects of the relationship between the Court itself and the States that created it? The question goes to the very heart of the Court’s independence and impartiality. As Judge Anita Usacka noted:

“[A] distinction must be drawn between the role of the judiciary, on the one hand, and the role of States Parties, on the other hand… A strict separation between these two roles must be observed in order to preserve the independence of the judiciary. In the circumstances of the present case, the intervention by five interested States of the nature proposed engenders the risk of distorting the judicial process or, at a minimum, creating the appearance that States have inappropriately encroached upon the functions of the judiciary.”

An amicus curiae has been defined as a “personality whose moral authority, scientific or human, is universally recognized and is asked by the judge to provide adequate information to clarify the disputes brought before it.” Notwithstanding that the moral authority of some of the States now involved in the proceedings can be questioned, might it not have been more appropriate had the Appeals Chamber required that the observations be clearly restricted to addressing legal issues relevant to the specific decision? It is not clear how observations that address issues relating to the relationship between the outcome of specific proceedings and particular States’ willingness to fulfill their obligations to cooperate with the Court can possibly be “desirable for the proper determination of the case”, as required by Rule 103(1).

Of course, the Appeals Chamber’s decision to grant leave might just have been a diplomatic exercise aimed at countering a perception that has gained popularity in some circles, namely that the “ICC gives more hearing to the civil society than it does to State Parties”, as the Majority Leader in the Kenyan Parliament Aden Duale, who has been instrumental in the push for a withdrawal from the Statute, recently claimed.

However, as I argue in more detail in this forthcoming case note, the Trial Chamber’s decision was – to put it mildly – based on an innovative reading of the Statute, which downplayed the importance of Article 63(1), according to which “[t]he accused shall be present during the trial”, as well as the intention of the drafters, while emphasizing non-Statutory international law rules, including those relating to privileges of State officials. What is more, the Trial Chamber’s ruling also paid scarce attention to the views of victims. Depending on the outcome of the Chamber’s decision and its reasoning, allowing five States to make submission to the effect that the Trial Chamber was right in affording Ruto special treatment due to his duties as a State official could end up portraying the Court as being more friendly to States that seek to uphold immunity than to those who seek to combat impunity – not to mention those who have suffered from it. As Judge Anita Usacka notes, such one-sided interventions are hardly compatible with the principle of equality of arms and the balance between the parties in the proceedings.

It remains to be seen what significance the Appeals Chamber will afford the observations of the five States. But should the Chamber choose to take into account their extra-judicial observations, this is bound to fundamentally change the relationship between the lawmakers and the judiciary. By allowing that observations are filed relating to the decision’s potential impact on States’ willingness to cooperate with the Court, the Appeals Chamber has already laid the ground for a new conception about the way in which States can legitimately interact with the ICC. Whereas efforts on the Court’s side to counter the perception that it is treating African States unfairly are in principle welcome, the types of interactions endorsed by the Appeals Chamber may ultimately harm the Court’s independence.