The ruling of the Appeals Chamber on the issue of presence at trial by the Vice-President of Kenya (and, by implication, the President) was delivered Friday. The Appeals Chamber confirms the reading of article 63 as permitting absence from trial. The wording appears to be peremptory and absolute. The Prosecutor had argued that the only exception was that provided in the Statute concerning removal of a disruptive accused.
The argument for the strict and literal construction of article 63 relies in part on the observation that it is not there to protect the right of the accused to be present, something that is already found in article 67 dealing with the rights of the accused. The fact that there are two provisions dealing with presence at trial certainly raises a problem of interpretation.
Bismarck once said that if you love laws and sausages it is better not to see how they are made. His observation is probably applicable to the Rome Statute. It is difficult to discern any profound purpose in the decision of the drafters to specify presence at trial in two places and not one. According to the Appeals Chamber in the recent ruling, ‘part of the rationale for including article 63 (1) of the Statute was to reinforce the right of the accused to be present at his or her trial and, in particular, to preclude any interpretation of article 67 (1) (d) of the Statute that would allow for a finding that the accused had implicitly waived his or her right to be present by absconding or failing to appear for trial’. The more flexible view adopted by the Appeals Chamber that presence at trial is a right to be exercised by the accused that can be waived is surely the correct one.
In the Trial Chamber, much attention was devoted to the application of article 27. A quite imaginative suggestion was advanced that the prohibition of the defence of official capacity meant that it was improper to take into consider the special functions of Vice-President Ruto in applying article 63. The Appeals Chamber ignores this point entirely.
After acknowledging that the Trial Chamber has discretion to excuse the accused from presence at trial, the Appeals Chamber goes on to find that the discretion of the Trial Chamber was not exercised properly. This is the unconvincing part of the judgment. It seems as if we leave the legal environment, where the Appeals Chamber reaches conclusions based upon interpretation of the text in light of the drafting history and the case law, and move onto the terrain of the individual opinions of its members.
The Appeals Chamber doesn’t agree with the way the Trial Chamber used its discretion. It sets out a number of criteria for applying article 63. Where these come from is a mystery. Confronted with such a problem, the late Antonio Cassese would have canvassed the sources of applicable law in order to see if rules and guidelines could be derived from, for example, ‘general principles of law’ found in national court decisions. But here the Appeals Chamber does nothing of the sort. The final portion of the judgment in which it develops the standards for applying article 63 is exceedingly brief and does not seem to be rooted in any recognised sources of law.
I suppose the Appeals Chamber devised the criteria to be applied in its wisdom, based upon ‘common sense’. But then so, presumably, did the Trial Chamber. That’s the whole point of discretion. If legislation leaves a judge with discretion, then the exercise of that discretion should be respected absent evidence that it has been exercised in a grossly abusive manner or for improper motives, which has never been suggested in this case.
It is probably not helpful to the proper administration of justice for the Appeals Chamber to intervene with the Trial Chamber merely because in its view the latter ‘interpreted the scope of its discretion too broadly and thereby exceeded the limits of its discretionary power’, as the Appeals Chamber says. As things stand right now, we simply have a disagreement amongst judges about the use of discretion. Why should that be a matter for appeal?