Much of the commentary on the Assembly of State Parties (ASP) added provisions to Rules 134 (bis, ter and quater) of the ICC Rules of Procedure and Evidence (RPE), which ease the requirement for an accused to be physically present at trial, has been disdainful. But before we consider potential effects of these new provisions, or lack thereof, let’s first look at the substance. Does the ICC Statute permit the Rules to be amended so accused – political leaders, no less – can be excused from attending parts of their trials due to “exceptional circumstances” or because of “extraordinary public duties”? Were the amendments necessary? Did the ASP exercise sound judgment? Though the answers to these questions seem to be yes, guarded cynicism is justified. From time to time, trial chambers will no doubt be tempted by the political siren calls for accommodation and realpolitik. Implementing these added provisions to Rule 134 will require prudence, finesse and judiciousness. As they saying goes: the proof of the pudding is in the eating.
Art. 63(1) of the ICC Statute requires the accused to be present during the trial. However, Art. 63(1) does not include language prohibiting any alternative to actual physical presence.
Art. 63(2) permits a trial chamber to banish disruptive accused from the courtroom and afford them the opportunity to follow the proceedings “through the use of communications technology.” Accused effectively waive their physical presence in court by purposely misbehaving. Providing video linkage to these accused ensures their right to follow the proceedings, if so desired. Fair enough.
Relying on Art. 63(2), however, to suggest that “presence” in Art. 63(1) exclusively means physical presence, is an ambitious stretch. (see e.g. Kevin Jon Heller’s thoughtful prognosis: Will the New PRE 134 Provisions Survive Judicial Review? (Probably Not.), Opinio Juris, 28 Nov. 2013). And, while the added provisions seemingly dilute the objective for holding public trials where the accused – especially political leaders – are accused of orchestrating mass atrocities, the recalibration of the RPE, in this instance, was necessary and reasonable. In reconciling the presumption of innocence accorded to the accused, with the need to prosecute and punish based on fair and public trials, Rule 134 bis, ter and quater enhanced the raison d’etre of the ICC.
Some preliminary remarks may help. Video conferencing is widely used at the international tribunals. It is used when accused do not wish to be physically present in trial, either because they are boycotting the proceedings or are too sick to physically attend, or are just simply disinterested. A simple waiver does the trick. An accused’s refusal to leave his cell to attend the proceedings constitutes a waiver. Witnesses, even highly critical witnesses, routinely testify through videoconferencing. The interests of justice are the usual justification. An accused’s right of confrontation, no matter how critical, is routinely, if not dismissively, balanced with the need to accommodate the prosecution in adducing its evidence. So, if there is no material difference in the use of videoconferencing when necessary to accommodate witnesses or disruptive or ailing accused, is it rational to claim that “presence” in the context of Art. 63(1) excludes presence through videoconferencing? Hardly. And, what about when accused in the middle of trial proceedings require medical treatment? Through a simple written waiver, the accused is effectively present through his counsel.
Presence, comes in many different forms; something widely accepted in both national and internationals courts. So why the drama?
Some argue that the added provisions , especially Rule 134quater, came about because of mounting pressure from some African States through the African Union, which see the ICC as unfairly targeting only Africans. No doubt. Finding an accommodation for the two 
highest elected officials of Kenya (President Uhuru Kenyatta and Vice President William Samoei Ruto), had much to do with this proposal, though, in the grand scheme of things, the added provisions to Rule 134 were an essential tweaking of the RPE.
The ICC was set up as the court of last resort to try, among others, political leaders, including sitting ones. Obviously, the ICC’s viability rests on State and individual acceptance of and cooperation with the ICC.
There is currency to be gained by accused who fully abide by and engage with the ICC. For instance, they may be out of custody during the pre-trial stage, and even run for political office. While it may seem odd to accord an accused such privileges, it bears remembering that accused are cloaked with the presumption of innocence during the pre-trial and trial stage, and up until such time as they may be convicted. And, what of a duly democratically elected president on trial: is he or she not entitled to this presumption of innocence? Is he or she impervious from a total acquittal, should the prosecution fail, and fail they occasionally do, to prove the charges beyond a reasonable doubt? Should not reasonable and necessary allowances be made to fully cooperating political leaders when critical State matters are at stake and no alternative means in addressing such matters exist? Do the chambers at the ICC not have discretionary authority to make allowances to accused for good cause and exceptional circumstances? If so, does the use of this discretionary authority not in some fashion result in disparate treatment of the accused? Of course it does. However, when incidental disparity results from the use of authorized judicial discretion based on necessity and not privilege or selectivity, Art. 27(1) of the ICC Statute, which mandates that all accused be treated equally and no distinction be made based on official capacity, is not violated.
While it may seem unfair to make certain allowances for certain accused, such as political leaders, the ICC cannot operate in a vacuum. Extraordinary circumstances require flexibility in balancing the various rights at stake. Victims do need to see the accused in the dock during the trial proceedings, but this right, if it is a right, must be counterbalanced against other relevant factors. Finding the right balance, therein lies the rub.
More to the point, Rule 134quater is by no means a carte blanche for the likes of President Kenyatta and Vice President Ruto. It is not as if they have an automatic right to be absent from their proceedings so they can pursue more desirous activities, whether professional or personal. Rule 134quater places significant restrictions on a trial chamber’s use of its discretionary authority in excusing an accused to be present during the trial proceedings. Let’s examine.
Rule 134quater reads:
1. An accused subject to a summons to appear who is mandated to fulfill extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be allowed to be excused and to be represented by counsel only; the request must specify that the accused specifically waives the right to be present at the trial.
2. 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 interest 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 the specific hearings in question and is subject to review at any time.
Thus, the onus is on the accused to satisfy the trial chamber that:
– the relevant public duties are “extraordinary”;
– the relevant public duties are at the highest national level;
– no alternative measures are adequate;
– it is in the interest of justice;
– his or her rights are fully ensured; and
– he or she waives in writing the right to be present at trial.
The trial chamber also:
– must consider the subject matter of the hearing to which the accused will be absent; and
– can review at any time its decision.
Any decision granted by a trial chamber is subject to appellate review. And, one need not read the proverbial tea leaves to guess how the Appeals Chamber is likely to review Rule 134quater decisions granting an accused’s request to be absent from trial proceedings to fulfill extraordinary public duties. Read its decision in Ruto. Edifying.
It is a bit early to see the effects of these added provisions to the RPE. Faced with the real threat of having droves of countries remove themselves from the ASP, thus weakening, if not fatally injuring, the ICC, the ASP opted for pragmatism over idealism. But does this set a bad precedent? Has the ICC exposed its Achilles heel? Will the ASP be rushing for compromise (or appeasement, as some see this set of events), whenever a State or set of States threaten to walk away from the ICC? Let’s hope not, though international criminal justice is inexorably entwined with politics and diplomacy.
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Michael this is a fine article that raises important issues relating to the latest amendment to Rule 134 RPE. But I think there is a more fundamental problem touching on article 27. This article is inextricably bound with similar provisions in the Nuremberg Charter, the Law Control Council no 10, the ILC Draft statutes, and the statutes of the Ad Hoc Tribunals. Apart from the Nuremberg Judgement which for historical reasons had to answer the question of immunity of heads of states from accountability for international crimes, there is not much useful jurisprudence one can glean from international criminal tribunals. I think the reason for lack of detailed opinions in this respect to be that these tribunals were dealing with collapsed or devastated states such as Germany, Rwanda, Yugoslavia or Iraq with no stable governments, their leaders had long fallen or been captured in battle to stand trial, so the immunity question was merely one of only academic interest. With the ICC this Court is different because it is a permanent and global international judiciary. What that means is that, apart from the Kenya problem, it may very well have to indict leaders of stable and democratic states in future who have states duties to perform and who may be engaged in some criminal activities calling for the intervention of the ICC. One such example could easily be Israel which is under investigations for the Flotilla incident. I think Article 27 was not well thought out in drafting and the legal thinking behind the Statutes of the ad hoc Tribunals may have influenced the formulation of Article 27. This is inappropriate and in the amendment of rule 134, the ASP was merely recognizing that the status of an accused person in some occasions may require consideration notwithstanding Article 27 provisions. The Article requires re-formulation so that the Court is able to proceed with its business while leaving stable states to continue also with their business