Dear Readers – Please find the below article written by Leah Campbell, a former Associate Legal Officer at the ICTY, currently working as an Associate Political Affairs Officer at the UN Department of Political Affairs. The views and opinions expressed here are the author’s and do not necessarily reflect the views and opinions of the Open Society Justice Initiative or UN Department of Political Affairs.
Late last month, the International Criminal Court (ICC) Appeals Chamber overturned the Trial Chamber’s decision to allow Kenya’s Deputy Vice President, William Samoei Ruto, to be excused from attending a significant portion of his trial. Though the trial chamber’s decision was overturned, the legal and practical implications are somewhat measured. Mr. Ruto may still be absent from proceedings, but this freedom is no longer granted outright. The majority upheld the trial chamber’s legal analysis from the June 2013 decision but considered that it exercised its discretion too broadly. The Appeals Chamber ruling means that the trial chamber must consider and rule upon specific, short-term requests to be absent, having regard to a defined set of principles. President Uhuru Muigai Kenyatta’s trial is scheduled to begin in February 2014, and this law will also apply to him.
The Appeals Chamber’s pronouncement raises questions that cut straight to the core of international criminal law and the basic principles at play when the international community seeks to hold individuals accountable for mass atrocity. Fundamentally, the decision speaks to the delicate relationship between law and politics. Ruto and Kenyatta on trial sheds light upon a new dimension to this interplay: where does justice sit when the crimes alleged are too recent to be viewed through the lens of history, yet too distant to be addressed as part of a negotiated solution to the conflict?
Politics has a role to play in international criminal trials. The trial chamber’s decision on Mr. Ruto’s request to be absent for part of his trial is one example of this. Another is the role of the United Nations Security Council, which under the Rome Statute has ultimate power to refer cases to the ICC and to defer investigations or trials already underway.
The open question is exactly when and how politics complement justice. The international community is accustomed to holding perpetrators accountable for mass atrocity after enough time has passed for the dust of conflict to settle and the political landscape to become clear. Similarly, there are many examples where a negotiated settlement with suspected perpetrators is reached as part of a peace process. The former is heavy on the justice, the latter is heavy on the peace. What is the balance in the temporal middle-distance?
The Appeals Chamber decision in Mr. Ruto’s case takes the conversation out of the political arena and back into the courtroom (literally). However, there is one political dimension yet unresolved: the role of the United Nations Security Council. The Council is currently considering a request from the African Union (AU) to defer the Kenyan trials pursuant to Article 16 of the Rome Statute. Under this provision, the Council may order that a trial be suspended for a year, which can be renewed, for reasons relating to the maintenance of international peace and security. The three African members of the Security Council (Togo, Rwanda, and Morocco) have introduced a draft resolution granting the deferral. However, there is a likely split between the five permanent members (US, UK, and France against deferral, China and Russia in favor), and raising the nine votes required to pass the resolution looks set to be a difficult task.
As the Council consults, it is useful to consider how the Appeals Chamber’s decision could impact the outcome. The AU and those in favor of the deferral must argue that if the accused spend prolonged periods of time outside Kenya, it will negatively impact the maintenance of international peace and security. Presumably, arguments in favor of the deferral emphasize the critical role that Kenya must play in addressing the threat posed by Al-Qaeda and affiliated groups in East Africa – particularly in light of Al-Shabaab’s recent attack on Westgate Mall in Nairobi. The Appeals Chamber’s decision means that the options for Mr. Kenyatta and Mr. Ruto to remain involved in the day-to-day running of their country while on trial are far more limited than they would have been if the trial chamber’s decision was allowed to stand. Both men are left with little dexterity to respond to a crisis at home. Spontaneously jumping on a plane from The Hague to Nairobi is impossible – an application to be absent must be raised with the Prosecution, presented to the trial chamber, deliberated upon and decided before that can happen. This allows the Council to view its options for referral in much more of a zero-sum light: either the President and his Deputy are in The Hague facing trial, or they are in Nairobi overseeing East Africa’s largest economy and working to address the threat posed by extremist groups. The Appeal’s Chamber has narrowed the scope for the members of the Council to resort to creative solutions to avoid the deferral, such as attending proceedings predominantly via video link from Kenya. Attendance in The Hague is the rule, not the exception, and this will make the work of those opposed to a Security Council deferral even harder.