There has been much speculation about whether the presence of the defendants in the two Kenya cases at the International Criminal Court will be required during their trials. Yesterday, the Appeals Chamber suspended the application of a June 2013 ruling by the Trial Chamber that permitted one of the defendants, William Ruto, who is deputy president of Kenya, to be absent from much of the trial that scheduled to begin in mid-September.
The Appeals Chamber has not ruled on the merits of the issue. It has merely decided that the Trial Chamber’s ruling should be suspended until the substance of the appeal is decided, something that could take several months.
Whether or not the appeal should even have been authorized by the Trial Chamber is debatable. Judge Eboe-Osuji dissented on the grant of leave to appeal the decision, but was outvoted by his colleagues.
Yesterday’s Appeals Chamber ruling, by a unanimous bench, is nevertheless subject to criticism. Essentially it endorses the arguments of the Prosecutor to the effect that implementation of the decision authorizing absence of Samuel Ruto ‘would be difficult to correct and may be irreversible’.
A simple solution to this problem, without the need to suspend implementation of a Trial Chamber judgment, would be for the judges of the Appeals Chamber to act with due haste and appreciation of the urgency of the matter. Leave to appeal was granted on 18 July, leaving the Appeals Chamber with more than seven weeks to reach a decision. That would be more time than it took the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia to render what is arguably the most important decision in modern international criminal law, the Tadic Jurisdictional Decision of 2 October 1995. And it is about the same length of time that the Rules of Procedure and Evidence of the International Criminal Court require for the issuance of a decision following a confirmation hearing.
Why would the decision of the Trial Chamber be irreversible and difficult to correct if the trial begins on 10 September and Ruto is not present? He might miss a few weeks of trial, until the Appeals Chamber reaches its decision. What is so serious and uncorrectable about that? There are many examples in international criminal law jurisprudence of temporary absences of the defendant, sometimes due to illness, sometimes to quite intentional boycott of the proceedings, and sometimes because they have been excused in order to work on matters related to the defence.
The logic of the Appeals Chamber’s decision seems to involve accepting the notion that the defendant’s presence must be required during every single minute of the proceedings. Otherwise, the temporary absence resulting from implementation of the Trial Chamber ruling on presence at trial would quickly be corrected, were that to be the whim of the Appeals Chamber, once its ruling on the merits of the appeal is issued.
It will be curious to see if the Prosecutor changes her position when the Court confronts the situation of an obstreperous defendant in detention who refuses to go to trial one morning, a situation not unfamiliar to judges at the ad hoc tribunals. At the ad hoc tribunals, it is the prosecutor who has insisted that the trial go on and that the shenanigans of a detained defendant who chooses to boycott a hearing not be allowed to delay things. An alternative – let us hope we never get to this in international justice – will be defendants who are bound and gagged and taken by force to court.
Suppose Ruto is ill when the trial begins. Wouldn’t it be within the powers of the Trial Chamber to proceed, assuming he were to agree? (Ruto has of course agreed – it was his request to be absent - so the issue of proceeding in his absence without consent does not even arise.) Can it really be the scheme of the Rome Statute to take such discretionary authority away from a Trial Chamber?
On the substance of the issue, the core of the issue concerns article 63(1) of the Rome Statute: ‘1. The accused shall be present during the trial.’ This is generally understood to prohibit in absentia proceedings. Trial in the absence of the accused was allowed at Nuremberg and is explicitly authorised by the Special Tribunal for Lebanon; it is left unresolved in the statutes of the other ad hoc tribunals, where the issue has never really been tested.
The principal reason to prohibit in absentia trials is to protect the rights of the accused, although there may also be other justifications for this. In the impugned Trial Chamber decision, the judges consider whether article 63(1) imposes an absolute rule and conclude that this is not the case. There is a short dissent by judge Herrera Carbuccia who contrasts article 63 with article 61, where absence of the accused from the confirmation hearing is permitted under certain circumstances. Judge Herrera Carbuccia notes that it is in the best interests of the accused to be present, and this is surely correct, but what is to be done when the accused person decides otherwise?
Even Judge Herrera Carbuccia understands that there must be exceptions to the seemingly strict formulation in article 63(1). Her exceptions are narrower and she does not approve of the very general absence during testimony that the other judges of the Trial Chamber accept. Is this really a disagreement about principle or nothing more than a different take on the exercise of discretion? Her willingness to accept exceptions to article 63(1) only reinforces the unreasonableness of the decision by the Appeals Chamber to suspend application of the Trial Chamber Decision on grounds that a temporary absence of Ruto would be ‘irreversible’.
Different legal traditions reach rather different solutions on these matters. For those that are comfortable with in absentia trials, absence of the accused during part of the proceedings cannot be very surprising. In systems where in absentia trials do not generally take place, the matter is often elevated – mistakenly, I think – to a question of principle. But even adversarial systems that do not countenance in absentia trials usually make exceptions in a case where an accused who is not detained absconds during the proceedings. Then, the trial proceeds nevertheless. Is it an exception to the principle, or merely an indication that no real principle is at issue?
Assuming a trial begins with an accused present but at liberty and, typically for the International Criminal Court, continues for at least a few years. As it nears completion, after a a huge investment in money, time and energy by judges, lawyers and witnesses, the accused senses that things are not going well and decides to make a run for it. Would that decisively sabotage the proceedings? Or could the Court continue. My hunch is that the trial would proceed, even in the absence of the accused and despite article 63(1). The Court will cross that bridge if it ever gets to it.
But in ruling on the Ruto application it needs to bear all of these eventualities in mind, including the ones of which I haven’t yet thought. The Trial Chamber crafted a nuanced compromise that would probably work. The temptation for the Appeals Chamber, urged on by the Prosecutor, may be to formulate an absolute rule from which it is difficult to depart in the future. Other judges might not be as inclined as the Ruto Trial Chamber to allow such broad exceptions to presence at trial. But to the extent this is a matter for judicial discretion, perhaps it is better to leave the ruling untouched. Impetuous attempts to overrule the Trial Chamber by means of a rigid application of article 63(1) may haunt the Court for many years and leave it helpless when confronted with the unforeseen.