The International Criminal Court on Presence at Trial:the (in)validity of Rule 134quater’

In November 2013, the ICC’s Assembly of States Parties adopted Rule 134quater as an amendment to the Rules of Procedure and Evidence of the Court. With the trials of Uhuru Kenyatta and William Ruto in mind, the States Parties agreed that the Trial Chamber should be able to excuse the accused from continuous presence at his or her trial when the accused has to perform “extraordinary public duties at the highest national level”. Almost immediately after the eventful meeting of the ASP, Ruto submitted an excusal request under this new Rule in which he argued that the Trial Chamber should relieve him from the obligation to attend all trial hearings for as long as he would be Vice-President of Kenya. The Prosecution strongly objected to this request, but the Trial Chamber unanimously decided to excuse Ruto under the new Rule from all trial hearings, except for the closing statements, the delivery of the judgement, hearings in which victims would present their views in person and the first five trial days after a judicial recess. This Brief for the International Crimes Database gives a critical commentary on the responses of the Prosecution and of the Trial Chamber to Ruto’s request for an unconditional excusal. It concludes that the Prosecution and the Trial Chamber have failed to recognize that Rule 134quater cannot be reconciled with the relevant provisions of the Statute. Both should have found the new Rule to be invalid under the Statute