UK welcomes new rules on ICC trials affecting Uhuru Kenyatta and William Ruto

The United Kingdom has welcomed the new rules for trials at the International Criminal Court (ICC) which will allow President Uhuru Kenyatta and his Deputy William Ruto to skip sessions or attend them via video link. (READ: UK supports video link trials for Kenya)

UK Parliamentary Under-Secretary for the Foreign and Commonwealth Office, Mark Simmonds, said on Friday the new rules create a balance of pursuing justice while ensuring the trials do not inconvenience suspects who also hold the highest offices in the land.

“These changes agreed will help address Kenyan and the African Union’s concerns around trial procedures, while upholding the principles of justice and accountability. It is right that these issues were addressed as part of the dialogue between State Parties on the Court’s work,” Mr Simmonds said in a statement posted on the Foreign Office website.

“The UK is strongly committed to the Rome Statute principles of delivering justice and ensuring accountability for the worst crimes. We welcome Kenya’s continued co-operation with the Court, and we will continue to engage with them and other ICC State Parties on this important work.

The comments came just hours after the United States also welcomed the decision by the Assembly of State Parties which has been meeting at The Hague for the past one week. The US Envoy to the UN said the amendment “protects the rights and interests of both victims and defendants while allowing the judicial process to proceed without delay”.

NEW RULES

On Wednesday, the Assembly of State Parties to the Rome Statute (ASP) adopted a set of new rules on procedures for trials at the ICC which allows accused persons with high level public duties to fulfil to be excused from attending their trials in person, instead being represented by their lawyers.

The Parties also agreed for the use of video conferencing in certain parts of ICC trials although the judges at the Court would still retain discretion on which mode to adopt.

The comments from both the US and the UK come in the wake of a cooling of relations between the Western powers and Kenya after the two abstained from a UN Security Council vote on a resolution proposing the suspension of the ICC cases against President Kenyatta and Deputy President Ruto. (READ: Leaders criticise UN council)

Kenya had also accused the UK of hijacking proposed amendments to a video-link proposal, when it was claimed Kenya was seeking total immunity for the president as endorsed by the African Union (AU).

But it later emerged that Kenya had in fact presented the request through Mr Kenyatta’s lawyers then later by Kenya’s envoy to the UN Macharia Kamau, long before the UNSC voted on the deferral bid.

On Friday, Mr Simmonds said the new rules reflect a “constructive working partnership between the UK, Kenya and all other State Parties.

Although these rules would give President Kenyatta and his Deputy some breathing space, they will not apply to the third suspect Joshua Arap Sang who does not fit the definition of “extra-ordinary public duties.”

Still, these rules would not apply if judges choose to go with Article 63 of the Rome Statute. The relationship between the Rules of Procedure for Evidence and that of the Statute is similar to that of the Constitution and an Act of Parliament; the Constitution remains supreme.

Article 63 reads: “(I) The accused shall be present during the trial. (II) If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.”

This article together with Article 27 of the Statute which says that the accused are taken in regardless of their standing in the society were not amended during the recent State Parties’ conference. However, the Kenyan delegation led by Foreign Affairs Cabinet Secretary Amina Mohamed has indicated that they had issued a notice for special meeting in February next year to discuss amendments to these articles.

WHAT THE AMENDMENTS SAY:

(a) Presence through use of video-link

(I) An accused subject to summons to appear may submit a written request to the Trial Chamber to be allowed to be present through the use of video-link technology during part of parts of his or her trial.

(II) The Trial Chamber shall rule on the request on case-by-case basis, with due regard to the subject matter of the specific hearings in question.

(b) Excusal from presence at trial

(I) An accused subject to a summons to appear may submit a written request to the Trial Chamber to be excused and to be represented by counsel only during part or parts of his trial.

(II) The Trial Chamber shall only grant the request if it is satisfied that:

- Exceptional circumstances exist to justify such an absence

- Alternative measures, including changes to the trial schedule or a short adjournment of the trial, would be inadequate

- The accused has explicitly waived his or her right to be present at the trial

- The rights of the accused will be fully ensured in his or her absence

(III) The Trial Chamber shall rule on the request on a case-by-case basis with due regard to the subject matter of the specific hearings in question. Any absence must be limited to what is strictly necessary and must not become the rule.

(c) Excusal from presence at trial due to extraordinary public duties

(I) An accused subject to summons to appear who is mandated to fulfill extra-ordinary public duties at the highest national level may submit a written request to the Trial Chamber to be excused and to be represented by Counsel only; the request must specify that the accused explicitly waives the right to be present at the trial.

(II) 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 that the rights of the accused are fully ensured. The decision shall be taken with due regard to the subject matter of specific hearings in question and is subject to review at any time.