Decision on Kenyatta's Presence at Trial

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A second Trial Chamber decision concerning presence at trial has just been released. It builds to a large extent on the earlier ruling in the Ruto case, discussed last month in this blog. The more recent ruling, issued Friday, concerns presence at trial of President Kenyatta. The result is the same, with the two majority judges in the previous ruling taking the same stance, and a dissenting judge (not the same as in the previous ruling), rejecting the defence motion.

Presumably the decision will be appealed immediately by the Prosecutor and the Appeals Chamber will again suspend the execution of Friday’s decision pending its final ruling, as it did with the Ruto decision.

Comparing the two Trial Chamber decisions, issued four months apart, it is interesting to take into account the changing circumstances. The Appeals Chamber decision suspending the Ruto decision and requiring him to attend all of the proceedings was itself, in practice, suspended when the recent terrorist attack on the Nairobi mall took place. Ruto was allowed to return to Kenya and the Prosecutor made no objection, but the trial had to be stopped. Had the Appeals Chamber not suspended the earlier decision the trial would have continued. Events proved the wisdom of the Trial Chamber's decision and the error of the Appeals Chambers move to suspend the decision.

Judge Eboe-Osuji pens a separate opinion to Friday’s ruling in which he comments on the political environment, including the Court’s apparent obsession with Africa. He discusses the criticisms that have been made of the Court in this respect, saying that ‘all efforts must be made to reassure African leaders that they and their people are not the only ones under the law of the ICC’ (para. 21).

The majority decision is rich in public international law, principally in its discussion of the role of preparatory work (travaux préparatoires) in treaty interpretation. Article 36 of the Rome Statute attaches a lot of importance to having judges with public international experience, but until recently there has not been much reflection of this in the case law. Fans of Hersch Lauterpacht (including myself) will be delighted at the lengthy discussion of his views, although it bears mentioning that Lauterpacht was really the pioneering international lawyer in his insistence upon the importance of the travaux préparatoires in treaty interpretation. The judges of the Trial Chamber make a good point in cautioning against over-reliance on the preparatory work. I have always been an enthusiast for study of the travaux, but not necessarily because of their technical role for purposes of interpretation but rather their intrinsic interest from an historical point of view. It is important to know what the drafters of a treaty thought, what they wanted, how they compromised, and so on, regardless of the importance that this may take on in subsequent interpretation.