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Original: English No.: ICC-01/09-02/11Date: 18 Octob er 2013

TRIAL CHAM BER V(B)

Before: Judge Kun iko Ozaki , Presiding JudgeJudge Robert FremrJudge Chile Eboe-Osuji

SITUATIO N IN THE REPUBLIC OF KENYAIN THE CASE OF

IHE PROSECUTOR v. UHURU MUIGAIKENYATTA

PublicDecision on Defence Request for Conditional Excusai from Continuous

Presence at Trial

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Decision to be notified, in accordance w ith R egulation 31 of the Regulations of theCourt, to:The Office of the ProsecutorMs Fatou BensoudaMr James StewartMr Benjamin Gu m pertLegal Represe ntatives of VictimsMr Fergal GaynorUnrepresented Victims

Counsel for the DefenceMr Steven KayMs Gillian H iggins

Legal Representatives of Applicants

Unrepresented Applicants forParticipation/Reparation

The Office of Public Counsel forVictimsMs Paolina M assidda

The Office of Public Counsel for theDefence

States Representatives Amicus Curiae

REGISTRYRegistrarMr Herm an von Hebel Deputy Registrar

Victims and W itnesses U nitMr Patrick Craig

Detention Section

Victims Participation and Rep arations Oth ersSection

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Trial Chamber V(B) (the 'Chamber') of the Intemational Criminal Court (the'Court'), in the case of The Prosecutor v. Uhuru Muigai Kenyatta, having regard toArticles 27, 61, 63, 64 and 67 of the Rome Statute (the 'Statute'), by Majority, issuesthis Decision on the Defence Request for Conditional Excusai from ContinuousPresence at Trial.

I. OVERVIEW

1. W henever a national traum a is inflicted upo n a country, the eyes of the nationinvariably turn to one personthe executive head of state or govemmentwithquestions and for answers and demands for solutions and hopes of future safety. Itis so with natural disasters or massive accidents or intentional acts of terror. Butthere is much m ore that the executive head of state or govem m ent m ust do in goodfaith, often unsung and out of sight, to prevent national traumas. And, beyond themanag emen t and prevention of emergencies, he or she does so much m ore. Indeed,the functions of the executive head of state of the average nation will be toonum ero us to list here. In the outlines, the picture is usefully framed in the followingw or ds of Vattel, w riting in his Law of Nations: 'a faithful adm inistra tor, to wa tch forthe nation, and take care to preserve it, and re nder it mo re perfect; to better its state,and to secure it, as far as possible, against everything that threatens its safety or itshappiness.'^ Hence, the sovereign functions of an executive head of state orgovemment are significantly different from those of any other citizeneven of thosew ho ru n the most im portant commercial enterprises within the state.2. In m od em intemational law, however, the conducts of even incumbent headsof state or govemment must be subjected to judicial inquiry (criminal type), when ithas credibly been alleged that serious reasons exist to suspect their complicity in acalculated infliction of a national trauma in the manner of crimes that shock the

1 Emer de Vattel, The Law of Nations, Bk I, ch IV (1758) [Indianapolis: Liberty Funds, 2008, edited by BKapossy and R Wh atn\ore] 42, p 99.N o. ICC-01/09-02/11 3/55 18 O cto be r 2013

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conscience of hum anity. T he Rome Statute requ ires it. An d it is wh olly right that it isso . In the case at bar, the Prosecutor has alleged that the accused had a directinghand in the death, maiming and displacement of many. The judicial inquiry into thatallegation must go on.3. Yet, it is entirely possible to conduct such an inquiry in this Court, in amanner that permits the concemed head of state or govemment reasonable leewayto manage the affairs of his or her nation, when compatriots have given him or herthat sovereign mandatethrough the democratic processin full knowledge of anycriminal charge laid against that individual as an accused person, enjoying thepresumption of innocence, before this Court. The Rome Statute, when construedproperly, implicates no jural dissonance that necessarily precludes such anarrangement.4. In the circumstances, it is correct to conditionally grant the Defence request ofthe Cham ber to excuse U hur u K enyatta from continuo us presence at trial, in order topermit him to discharge his functions of state as the executive President of Kenya;while his trial proceeds, as it m ust d o, in this C ourt.5. The conditional excusai is in the following terms:

a. Mr Kenyatta must be physically present in the courtroom for thefollowing he arings:

i. the entirety of the opening statements of all parties andparticipants;

ii. the entirety of the closing statements of all parties andparticipants;

iii. when victims present their views and concerns in person;iv. the entirety of the delivery of jud gm en t in the case;V. the entirety of the sentencing hearin gs (if applicable);

vi. the entirety of the sentencing (if applicable);vii. the entirety of the victim impact hearings (if applicable);

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viii. the entirety of the reparation hearings (if applicable); andix. any other attendance directed by the Chamber.

b. Mr Kenyatta is excused from continuous presence at other timesdurin g the trial. This excusai is strictly for pur pos es of acco mm odatingthe discharge of his duties as the President of Kenya. The resultingabsence from the trial m ust therefore always be and seen to be directedtow ards performance of those duties of state.

c. The majority of the Cha mb er further requ ires the Ke nyatta Defence tofile with the Registry, no later than one day after the time-limit forrequest for leave to appeal this Decision, a waiver signed by MrKenyatta, in the form attached as an annex to this D ecision.

6. As wa s stressed in the Ruto decision, it need s also to be stressed here that theconditional excusai granted to Mr Kenyatta in this decision is purely a matter ofreasonable accommodation of the demanding functions of his office as the Presidentof Kenya, and not merely the gratification of the dignity of his own occupation ofthat office.

II. BACKGROUN D A ND PROCEDURAL HISTORY

7. In the Kenyan election year 2007, U hur u Kenyatta w as und ersto od to be asenior member of a political movement that competed in the elections against theparty to which William Ruto belongedRuto too was a senior member.^ It isund ersto od that the two m en belong to tw o of the larger ethnic group s in Kenya, andthat they enjoyed prominent social and political status in Kenya.^ It is also said that

2 See Annex A to Prosecution submission on agreements as to evidence, ICC-01/09-02/ll-704-AnxA;Annex A : First Joint Submission by the Prosecution and the Defence as to Agreed Facts and CertainMaterials Contained in the Prosecution's List of Evidence, ICC-01/09-01/ll-451-AnxA.3 Annex to Prosecution's Updated Document Containing the Charges pursuant to the Trial Chamber'sOrder (ICC-01/09-01/11-439), ICC-01/09-01/11-448-AnxA, para 10; Annex to Prosecution submission ofN o. ICC-01/09-02/11 5/55 18 O cto be r 2013

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Mr Kenyatta is Kikuyu and Mr Ruto is Kalenjin.^ It is alleged that the manner inwhich the two men conducted themselves and their political contest during thatelection resulted in the violence now generally known as the Kenyan Post-ElectionViolence 2007-2008, which allegedly had a distinct inter-ethnic dimension.^ It is alsoalleged that hundreds of persons were killed and many more were maimed ordisplaced.^ This resulted in the Prosecutor of this Court laying charges against MrKenyatta and Mr Ruto for crimes against humanity.8. Co nsequ ently, on 23 Janu ary 2012, Pre-Trial Ch am ber II, by a Majority,confirmed, separately, certain charges against each of Mr Kenyatta and Mr Ruto inconnection with their alleged roles in the Kenyan Post-Election Violence 2007-2008.^On 29 March 2012 both cases were transferred to Trial Chamber V (as it then was)for the purpose of trial.9. At all stages of both the Pre-Trial Cham ber and relevant Trial Cham bersproceedings, the attendance of both Mr Kenyatta and Mr Ruto has been governed bythe summons to appear regime, in addition to their own recognisances andundertakings of continued cooperation with the Court.^ That is to say, they have atno time in these proceedings been subject to deten tion.

Second Updated Document Containing the Charges and the Updated pre-trial brief, ICC-01/09-02/11-732-AnxA-Red, paras 3 - 5 ." Annex A to Prosecution submission on ag reements as to evidence, ICC-01/09-02/ll-704-AnxA, para10 ; Annex A : First Joint Submission by the Prosecution and the Defence as to Agreed Facts andCertain Materials Contained in the Prosecution's List of Evidence, ICC-01/09-01/ll-451-AnxA, para 3.5 See Upd ated Docum ent C ontaining the Charges Pu rsuant to the Decision on the content of theupdated document containing the charges (ICC-01/09-01/11-522), ICC-01/09-01/11-533-AnxA-Corr;Corrigend um of the Second Up dated Document Containing the Charges, ICC-01/09-02/ll-732-Conf-AnxA-Corr.^ See Upd ated Docum ent C ontaining the Charges P ursuan t to the Decision on the content of theupdated document containing the charges (ICC-01/09-01/11-522), ICC-01/09-01/11-533-AnxA-Corr;Co rrigen dum of the Second Up date d Docum ent Containing the Charg es, ICC-01/09-02/ll-732-Conf-AnxA-Corr.7ICC-01/09-02/ll-382-Red, paras 428-429; ICC-01/09-01/11-373, pa ra 349.8ICC-01/09-02/ll-382-Red, Disp osition ; ICC-01/09-01/11-373, para 349; ICC-01/09-02/11-T-22-ENG, p .5,lines 6-8.N o. ICC-01/09-02/11 6/55 18 O cto be r 2013

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10. On 28 February 2013, the defence team for Mr Kenyatta ('Kenyatta Defence')filed a mo tion requesting perm ission that Mr Kenyatta be permitted to participate inthe trial via video link ('First Motion').^ On 8 March 2013, the Victims' LegalRepresentative ('LRV')^^ and, on 22 March 2013, tiie Office of the Prosecutor('Prosecution'),^^ each filed responses opposing the First Motion. Pursuant to anorder of the Chamber, ^ on 9 April 2013 the Registry also filed observations on thenecessary modalities for implementing video link attendance.^^11. While their cases were awaiting trial, Mr Kenyatta and Mr Ruto teamed up tocontest in the 2013 Kenyan presidential election on the sam e ticket on which Mr Rutowas Mr Kenyatta's ruiming mate for the post of President of Kenya.^^12. On 4 March 2013, Mr Kenyatta and Mr Ruto were elected as President andD epu ty President, respectively, of the Republic of Kenya.13. On 17 April 2013, the defence team for Mr Ruto made an application for theexcusai of Mr Ruto from continuous presence at trial, to enable him to perform hisdut ies as the D epu ty P reside nt of Kenya. ^14. In a decision delivered on 18 June 2013 (the 'Ruto Decision'), Trial C ham berV(A), by a Majority, granted Mr Ruto a conditional excusai from continuouspresence at trial (the 'Ruto relief').^^ On 18 July 2013, Trial Chamber V(A), byMajority, gran ted the Prosecution leave to appeal the Ruto Decision on the followingtwo issues:

9ICC-01/09-02/11-667. A similar request was filed on the same day in respect of Mr Ruto (see (ICC-01/09-01/11-629).^oiCC-01/09-02/11-686.^iICC-01/09-02/11-703.12ICC-01/09-02/11-705.13ICC-01/09-02/11-715.4 Tran script of Status Conference of 15 M ay 2013, ICC-01/09-01/1 l-T-23 -Red -EN G, p 27, lines 19 -22

15ICC-01/09-01/11-685.^^Decision on Mr R uto's Requ est for Excusai from C on tinu ou s Prese nce at Trial, 18 June 2013, ICC-01/09-01/11-777 (the"Ruto Decision").N o. ICC-01/09-02/11 7/55 18 O cto be r 2013

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A. The scope of the requirem ent und er Article 63(1) that the accused bepresent during the trial and whether, or to what extent, the TrialCham ber has a discretionary pow er to excuse an accused from attendingmost of the trial; and

B. Whether the test for an excusai of the accused developed by the Majorityis supported by the applicable law (together the 'Ruto Appeal Issues').^^

15. On 20 Aug ust 2013, the Appe als Cham ber gran ted su spensive effect in respectof the Ruto Decision.^^ The Ruto Appeal Issues are currently before the AppealsCh am ber. O n 17 Septem ber 2013, five African states (U nited Repub lic of Ta nzania,the Republic of Rwanda, the Republic of Burundi, the State of Eritrea and theRepublic of Uganda), jointly filed before the Appeals Chamber amicus curiaesubmissions opposing the Prosecution's appeal ]omt Amicus Submissions').^^16. On 19 September 2013 two other African States (the Federal DemocraticRepublic of Ethiopia and the Federal Republic of Nigeria) also sought leave to join inthe appeal, with the objective of addressing the importance of giving to Article 63(1)a broad and flexible interpretation, which 'encourages State cooperation in thewidest possible set out circumstances and without jeopardising the constitutionalresponsibilities of leaders', as well as the 'balance to be struck b etwe en those subjectto the Court's jurisdiction but who also occupy high office'. But the AppealsChamber denied leave on grounds of the need to proceed with speed in thedisposition of the appeal, noting that the two States were of the same position as theearlier five S tates wh o h ad bee n g ran ted leave to file the Joint Amicus Submissions.^^17. On 30 August 2013, the Chamber issued a scheduling order and agenda for astatus conference to be held on 6 September 2013.-^ The parties and participants were

17ICC-01/09-01/11-817.18ICC-01/09-01/11-862.19ICC-01/09-01/11-948.20ICC-01/09-01/11-988.2iScheduling Order and Agenda for Status Conference, ICC-01/09-02/11-799.N o. ICC-01/09-02/11 8/55 18 O cto be r 2013

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instructed to notify the Chamber, by 3 September 2013, of any other issues they maywish to raise at the status conference.^18. On 3 September 2013, the Kenyatta Defence sent an emaiP^ listing, amongother things, a request for dispensation from attendance at trial on the part of MrKeny atta as an issue the Kenyatta Defence 'w ishe[d] to raise' at the statu s conferenceun de r agen da item D (Other m atte rs) ."19. At the status conference o n 6 September 2013, the K enyatta Defence m ade, asdescribed in further detail in the submissions section below, an oral application forwhat they described as a 'Ruto Relief', or words to that effect, excusing Mr Kenyattafrom continuous presence at trial ('Kenyatta Defence Oral Submissions').^^ TheProsecution and LRV opposed the application.^^20. Pursuant to an order of the Chamber,^^ on 23 September 2013 the KenyattaDefence filed the 'Defence Request for Conditional Excusai from ContinuousPresence at Trial' (together with the Kenyatta Defence Oral Submissions, the'Exc usai Request').^^21. Also on 23 September 2013, Trial Cham ber V(A) adjourned the proceedings inthe Ruto and Sang trial and permitted Mr Ruto to return to Kenya to attend to hisfunctions as Deputy Head of State in the resolution of the terrorist attack thenoccu rring at th e W estgate Mall, in Nairobi.^^

22ICC-01/09-02/11-799, para 3.23E-mail sent by the D efence to th e Ch am ber on 3 Septem ber 2013 at 16:26.24E-mail sent by the Defence to the Chamber, Prosecution and Legal Representative on 3 September2013 at 20:20. The Defence's email was init ially sent to the Chamber only on 3 September 2013 at16:26. I t was re-sent to the Prosecut ion and Legal Representa t ive upon the d irect ion of the Chamber ,issued by e mail on 3 September 2013 at 18:11.25ICC-01/09-02/11-T-26-ENG.26 Ibi d,27Email from the C ham ber to the pa rties on 12 Septem ber 2013 at 15.40.28ICC-0109-02/11-809.29ICC-01/09-01/11-T-35-ENG and ICC-01/09-01/ll-T-37-Red-ENG.N o. ICC-01/09-02/11 9/55 18 O cto be r 2013

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22. On 1 Octob er 2013, the Prosecution^^ and the LRV^^ each filed sub missio nsoppo sing the Excusai Request.

IIL SUBMISSIONSA. The Defence S ubm issions

23. In the Excusai Request, the Kenyatta Defence seeks that Mr Kenyatta begranted a conditional excusai from continuous presence at trial on such terms thathis physical presence in the courtroom be only required at the opening, closing anddelivery of the judgment. It is submitted that, at any other time his presence isrequired, or he wishes to participate, this should be satisfied by way of video link.^^In the alternative, it is requested that Mr K enyatta's c ontinuou s presence be satisfiedby means of video link ('Alternative Request').^^ It was submitted that thesearrangements would be with 'full responsibility for [the accused's] own actions andconduct in relation to develop m ents in the trial'.^24. The Kenyatta Defence specifies that the Excusai Request supersedes the FirstMotion.^^ Consequently, save where specifically incorporated by reference in thesubmissions of the parties and participants, the Chamber has not considered priorsubmissions m ade in relation to the First Motion.25. The Kenyatta Defence subm its that the election of M r Kenyatta as President ofKenya constitutes 'significantly changed' circumstances since the time the FirstMotion was filed, as the accused now has 'extraordinary and exceptional roles and30ICC-01/09-02/11-818.3^ICC-01/09-02/ll-819.32ICC-01/09-02/11-809, paras 1, 28, 38; ICC-01/09-02/11-T-26-ENG, page 18, lines 14-22.33 ICC-01/09-02/11-809, paras 4 and 39.34ICC-01/09-02/11-T-26-ENG, page 18, lines 14-22.35 ICC-01/09-02/11-809, pa ra 2. Ho wever, see a lso ICC-01/09-02/11-T-26-ENG, pag e 25 , lines 11-20,whe re the Kenyatta Defence stated that the video link request is not an a lternative request but rathershould be an op tion for whe n the accused, having been granted an excusai, wished to participate butwas unable to come to The Hague. Based on the written submission the Majority of the Chamberassumes that the Kenyatta Defence has now changed their submission on this matter.N o. ICC-01/09-02/11 10/55 18 O cto be r 2013

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responsibilities as an incumbent Head of State'.^^ The 'extensive duties' of MrKenyatta, as President, are elaborated upon in the submissions of the KenyattaDefence by reference to relevant provisions of the Kenyan Constitution.^^ TheKenyatta Defence further refers to the Joint Amicus Submissions in support of the'exceptional nature of the duties' faced by a Head or Deputy Head of State orGovemment.^^ These duties are submitted as additional to the role of the Presidentas a 'figureh ead and sym bol of auth ority for the nation'.^^26. The Kenyatta Defence submitted that, as Head of State, the need for such anord er is even greater in the case of Mr K enyatta than wa s the case for M r Ruto, as theoffice 'inhe ren tly carries greater responsibility'.^27. The Kenyatta Defence submits that resolving the question of attendance attrial in a manner that 'permits the Head of State to fully to discharge hisconstitutional duties' is a 'matter of fundamental importance of Kenya'.^^ It is furtherargued that as the people of Kenya were 'fully informed' about the ICC proceedingsagainst Mr Kenyatta at the time of the election, they have a 'legitimate expectation'that 'their country's democracy' be 'respected' and the outcome of the election be'accorded recognition and given effect'.^^ In support of this view, the KenyattaDefence quotes the Joint Amicus Submissions to the effect that mechanisticallyrequiring continuous presence wou ld 'deprive the electorate of the best gove m m entthey a re entitled to'.^^28. Regarding the interpretation of Article 63(1) of the Statute, the KenyattaDefence submits that the intention of the provision was to protect the rights of

3 6 ICC-01/09-02/11-809, pa ras 3 and 29; ICC-01/09-02/11-T-26-ENG , pa ge 18, lines 1-22. See also ICC -01/09-02/11-T-26-ENG, page 24, lines 18-21.3 7 ICC-01/09-02/11-809, para 30.3 8 Ibid, para 30.3 9 Ibid, para 29.^Ibid, para 30; ICC-01/09-02/11-T-26-ENG, page 18, line 23.41 ICC-01/09-02/11-809, para 30.4 2 Ibid, para 32.4 3 Ibid, para 31.N o. ICC-01/09-02/11 11/55 18 O cto be r 2013

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accused to be present and to prevent trials in absentia."^ The Kenyatta Defencesupports the majority opinion in the Ruto Decision that 'it is neither reasonable nornecessary to interpret the provision in a manner that eliminates the discretion of theTrial Chamber reasonably to permit the accused to carry out his duties'.^^ TheKenyatta Defence argues that a 'balanced approach' between the Court continuing toexercise its jurisdiction and enabling the accused to 'perform his functions of state'should be adopted.^^ Additionally, quoting the Ruto Decision, the Kenyatta Defenceargues that Article 64(6)(f) of the Statute provides a 'residual power and discretion'to do w ha t is 'fair, re ason able an d just' in the circumstances.^^29. Moreover, it is argued that no definition of 'presence' for the purposes ofArticle 63(1) of the Statute is set out in either the Statute of the Rules."^^ In response toquestions from the bench, the Kenyatta Defence confirmed that they considerpresence by video link to constitute 'presence' within the meaning of the Statute anddre w a parallel to a witness pro viding evidence by w ay of video link.^^30. The Kenyatta Defence additionally submits that in light of the 'quality of theprosecution' and the 'evidence that is to be challenged', Mr Kenyatta should beentitled to exercise his judg m ent as to his need to be present.^ T he Kenyatta Defenceargues that the purpose of these proceedings is 'not to punish an innocent m an' andthat, given that the Kenyatta Defence act with the full instructions of their client, theaccused's continuous presence is not required.^^ It argued that the 'spectacle' ofhaving an accused person present in court throughout is not a necessary function ofthe court and that if an acquittal should result, there would have been a 'totally4 4 Ibid, para 24.4 5 Ibid, pa ra 31 (quoting the Ruto Decision, su^ra, para 53).4 6 ICC-01/09-02/11-809, p ara 31 (quoting the Ruto Decision, supra, para 92).4 7 ICC-01/09-02/11-809, para 26 (quoting the Ruto Decision, supra, para 33).4 8 ICC-01/09-02/11-809, para 24.49ICC-01/09-02/11-T-26-ENG, page 24, line 22- page 25, lines 4, 21-23.50ICC-01/09-02/11-T-26-ENG, page 19, lines 16-21. See also ICC-01/09-02/11-809, para 34 where it issubmitted that Mr Kenyatta has 'every reason to be fully confident as to the merits of his defencebeing accepted by the Chamber'.51 ICC-01/09-02/11-809, paras 33 and 37.N o. ICC-01/09-02/11 12/55 18 O cto be r 2013

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unne cessa ry spectacle in relation to a He ad of State'.^^ It is further sub m itted, relying,inter alia, on the Joint Amicus Submission, that, in the event of an eventual dismissal,it will have been 'in the best interests of Kenya' to enable the accused to 'continueuninterrupted' his constitutional responsibilities.^^31 . In response to the Prosecution subm issions regard ing A rticle 27 of the Statute,the Kenyatta Defence submits that the 'clear intention' of the provision is to preventthe official position of an accused being used as a shield against individual criminalresponsibility, but that such an intention does not impact the discretion of a TrialChamber regarding the issue of continuous presence.^32. The Kenyatta Defence confirms that the reasoning underlying the ExcusaiRequestbased on the accused's position as Head of State and the quality of theevidence in this casew ould be slightly different from that a dop ted in the Ruto andSang case.^^33. Finally, the Kenyatta Defence sub mits that Trial Cham ber V (A), in per mittingMr Ruto to return to Kenya on 23 September 2013, has 'recognised the need toaccom mo date imp orta nt political duties'.^^

B. Prosecution Submissions

34. The Prosecution opposes the Excusai Request on three principal grounds,namely that: it lacks a legal basis; the granting the Excusai Request would becontrary to the interests of justice; and considerations of judicial economy favourawaiting the Appeals Chamber to determine the merits of the appeal of the RutoDecision.^^

52ICC-01/09-02/11-T-26-ENG, page 19, line 22 - page 20, line 7.5 3 ICC-01/09-02/11-809, para 34.5 4 ICC-01/09-02/11-809, para 35.55ICC-01/09-02/11-T-26-ENG, p ag e 20, line 12 - pa ge 21, line 1.56 ICC-01/09-02/11-809, para 36.57ICC-01/09-02/11-818.N o. ICC-01/09-02/11 13/55 18 O cto be r 2013

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35. The Prosecution submits that, pursuant to Article 63(1) of the Statute,presence at trial is a requirement, and not just a right.^^ It is submitted that this issupported by both a plain text and contextual reading, and that there is 'nouncertainty as to the meaning of [Article 63(1) of the Statute]'.^^ The Prosecutioncites, in particular. Articles 63(2), 61(2)(a), 58 and 67(l)(d) as supporting the positionthat, wh en A rticle 63(1) is considered w ithin the sta tutory framework, the 'legislativeintent' to require the accused's presence at trial 'is clear'.^ Additionally, theProsecution submits that this interpretation is further clarified and confirmed by thedrafting history of the Statute.^^36. Moreover, relying upon statements of Trial Chamber IV and the ICTRAppeals Chamber, the Prosecution submits that presence, within the meaning ofArticle 61(3) of the S tatute, m ean s physica l presen ce in th e courtroom.^^37. The Prosecution argues that Article 64(6)(f) is a 'catch-all' provision ratherthan a 'trump-all' one, and does not permit a Trial Chamber to exercise a discretionto disregard 'controlling' or 'unambiguous statutory requirements'.^ TheProsecution submits that intemational and domestic precedents are inapplicable as,while many have an equivalent provision to Article 67(l)(d) of the Statute, none ofthe jurisdictions app ear to have the equ ivalent of Article 63(1) of the Statute .^38. The Prosecution contend that the 'limited relief' afforded in the Bemba case,where the accused was permitted to be absent for four court sessions, does notsupport granting of the broad relief requested in the Excusai Request whereby Mr

5 8 Ibid, paras 4-5.5 9 Ibid, paras 6 and 10.6 0 Ibid, paras 11-14.61 Ibid, paras 7-9.6 2 Ibid, paras 15-17.6 3 Ibid, paras 18-20.6 4 Ibid, para 22.N o. ICC-01/09-02/11 14/55 18 O cto be r 2013

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Kenyatta would be absent for all but the opening, closing and delivery ofjudgment.^^39. The Prosecution submits that the 'policy arguments' made by the KenyattaDefence in the context of the Excusai Request should 'have no bearing on theCh am ber's assessm ent and can be sum m arily discarded'.^^40. The Prosecution submits that all persons should be equal before the Courtciting for additional support. Articles 27(1) and 21(3) of the Statuteand that thisrequest sho uld therefore not be granted on the basis that the accused is the Presidentof Kenya. It is submitted that to d o so wo uld violate the 'bedroc k legal principle th atall person s are to be treated equally und er the law'. ^41 . Moreover, it was argued that the granting of an order in the form soughtwould be contrary to the interests of justice because it could 'invite a flood of excusairequests' as many of the accused likely to appear before this Court could present areason why they have functions that would justify non-participation.^^ It wassubmitted that it would also compromise the 'seriousness and integrity' of theproceedings which the accused's presence serves to demonstrate.^^ The Prosecutionargued that the presence of the accused also assists the Chamber in determining theveracity of the evidence by providing an opportunity for the Chamber to observe the'dem ean ou r a nd c ondu ct' of the accused d urin g its presentation.^^42. The Prosecution rejects the Kenyatta Defence contention that the presence ofthe accused would amount to a 'spectacle' or an 'attempt to punish an irmocentman', noting that following a full confirmation hearing a Pre-Trial Chamber has

65Ih'd, p a r a 2 1 .66 Ibid, para 23.67ICC-01/09-02/11-T-26-ENG, pa ge 22, line 19 - pa ge 23 , line 6; ICC-01/09-02/11-818, para s 24-26.68ICC-01/09-02/11-T-26-ENG page 23 , lines 7-11; ICC-01/09-02/11-818, par as 27-29.6 9 ICC-01/09-02/11-818, para 30.7 0 Ibid, para 31 .No. ICC-01/09-02/11 15/55 18 O cto be r 2013

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committed Mr Kenyatta to trial and that requiring his attendance at that subsequenttrial is the 'faithful applica tion of the law agreed to by the States Parties'.^^43. With respect to the video link component of the request and the AlternativeRequest, th e Pro secutio n refers to its respon se to the First Motion.^^44. Finally, the Prosecution submits that while the matter is before the AppealsChamber and the law is 'in such a state of flux' the debate is academic and that itwould be more timely to make concrete submissions once the Appeals Chamber hasrendered its decision on the Ruto Appeal Issues.^^

C. Submissions of the Victims' Counsel

45. With respect to the video link component of the request and the AlternativeRequest, th e Victims' C oun sel (the 'LRV') refers to his respo nse to the First Motion. ^46. The LRV submits that both the plain language of Article 63(1) of the Statuteitself, and reading the provision in the context of the Statute as a whole,'unambiguously reflects an obligation' on the accused to be physically present in thecourtroom for the entire trial.^^ It is argued that the Statute does not envisage that aperson who is accused of crimes against humanity would be 'at liberty' in thecountry in which the crimes were committed, in proximity to the surviving victimsand far from the co urtro om for 'alm ost all of the trial'.^^47. The LRV argues that Article 27(1) reflects the 'fundamental human right' ofequality before the law and th at no accused may be treated preferentially o n accountof their 'official capacity'.^ It is submitted that the language in Article 27 of the

71 Ibid, para 32.7 2 Ibid, para 3.73ICC-01/09-02/11-T-26-ENG, page 22, lines 13-18; ICC-01/09-02/11-818, para 33.74ICC-01/09-02/11-819, pa ra 2.7 5 Ibid, paras 11-16.7 6 Ibid, para 14.^ Ibid, paras 17-27.N o. ICC-01/09-02/11 16/55 18 O cto be r 2013

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Statute reinforces this guarantee of equality in even stronger terms than the statutesof the hybrid and ad hoc tribunals.^^48. The LRV subm its that the C ham ber's discretion pu rsu ant to Article 64(6)(f) ofthe Statute is a 'residual power' which cannot be applied to areas 'unambiguouslycovered' by other provisions of the Statute.^^ The LRV further submits that to theextent that a residual power to permit excusai exists in intemational criminal law, itappears to have only been recognised in relation to accused persons who are incustody and either require short-term medical treatment or refuse to attend thecourtroom. In particular, the LRV emphasizes that in all cases where an accused'sability to waive the right to attend has been upheld the accused person was incustody. It is submitted that there is no precedent for an intemational tribunalallowing an accused to be at liberty in the country in which the alleged crimes werecommitted.^49. The LRV submits that to set aside the requirement of presence at trial on thebasis that the accused is a serving Head of State creates a 'dange rou s prec eden t' w ithan alarm ing 'po ten tial d om ino effect'.^^50. In relation to the arguments presented by the Kenyatta Defence regarding thenecessity of Mr Kenyatta fulfilling his 'constitutional duties', the LRV submits that itis for the Republic of Kenya to present these arguments, by way of an amicussubmission, rather than for the accused, who is on trial in his personal capacity, todo so.^2 Moreover, the LRV notes that within Article 64(2) of the Statute, theobligations of the Chamber in ensuring the fair and expeditious conduct of

7 8 Ibid, paras 24-26.7 9 Ibid, paras 28-30.8 0 Ibid, paras 31-34.81 Ibid, paras 36-39.8 2 Ibid, paras 40-42.N o. ICC-01/09-02/11 17/55 18 O cto be r 2013

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proceedings are to the accused as well as the victims and witnesses, but not theinterests of a state.^51 . The LRV argues that the accused, having been fully aware of the impendingtrial, and having been in fact committed for trial at the time of deciding to run forelection, should not be permitted to rely on circumstances which he has knowingly,voluntarily and deliberately brought into being. It is submitted that the accusedmade no attempt to 'arrange his affairs in a manner best suited to ensure his fullcooperation with the Court' and, through his selection of Mr Ruto as his Deputy,exacerbated rather than attem pted to reduce the impact of the trials on state affairs.^52. The LRV submits that all accused benefit from the presumption of innocenceand all accused have an obligation to attend trial; the presumption does not displacethe obligation. Moreover, it is noted that 'jurisdictions across the world', includingth e U.S., require the presence of an accused wh en charged with 'serio us' crimes.^^53. The LRV additionally submits, quoting Justice Kennedy of the U.S. SupremeCourt and the Crown Court of England and Wales in support, that the physicalpresence of an accused at trial is a 'vital element' as it enables the trier of fact toobserve the 'dem ean ou r a nd ex pressions' of the accused throughout.^^54. The LRV notes that the question of the attendance of Mr Kenyatta at trial hasbeen frequently raised at meetings he has held with victims over recent months. Hestates that there is 'trenchant opposition from the vast majority' of victims to theaccused being perm itted to be absent from the courtro om . He advises that '[t]hevictims ap pear to consider the presence of the Accused in the courtroom to be a vitalelement of a fair trial'. The LRV additionally submits that many of the victimsexpress a 'fervent and sincere faith' in the Court, in contrast with their view of the

8 3 Ibid, para 43.8 4 Ibid, paras 44-49.8 5 Ibid, para s 50-53 and 57.8 6 Ibid, paras 54-56.N o. ICC-01/09-02/11 18/55 18 O cto be r 2013

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domestic court system, and that being seen to grant 'preferential treatment' to'powerful accused' w ould send an 'unfo rtuna te message to the victims'.^^55. Finally, the LRV also endorsed the Prosecution's arguments that it is nottimely to consider the matter while the Ruto Decision is still pending before theA ppe als Chamber.^^

IV. DISCUSSION

Preliminary matter

56. As a preliminary matter, the Chamber notes that in recent filings,^^ includingthe one currently under consideration, the Kenyatta Defence refers to Mr Kenyattaand their team repeatedly by using his title as President.^ In the Ruto Decision, theTrial Chamber had occasion to issue the following caveat:

It must be clearly stressed from the outset that the Deputy President of Kenyaas such is not on trial before this Chamber. The accused person over whom theCham ber is exercising jurisdiction is William Samoei Ruto . He is being tried inhis individual capacity for allegations of crimes made against him personally. Itmay also be noted that the charges against him were laid and confirmed andthe case transferred to the Trial Chamber for his trialand indeed an initialdate for the trial was once setbefore he was elected into office as DeputyPresident of Kenya. Although Mr Ruto has come into that office in themeantime, while his trial remained pending, let it not be understood that theDeputy President of Kenya is on trial in that capacity. There is a materialdifference in the law in this regard. ^

57. Precisely the same consideration applies here. These proceedings are againstMr Kenyatta in his personal capacity and not in his capacity as President. In thecircumstances, the Chamber does not consider the use of this title appropriate in

87 Jbzd, paras 58-61.88ICC-01/09-02/11-T-26-ENG, page 24, lines 6-10.8 9 See, e.g., ICC-01/09-02/11-816-Conf.9 0 See, e.g., ICC-01/09-02/11-809, p ara s 1, 5, 29, 34, 37-39.91 Ruto D ecision, supra, para 28.N o. ICC-01/09-02/11 19/55 18 O cto be r 2013

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filings in this case. The Chamber therefore directs the Kenyatta Defence to refrainfrom includ ing M r Ke nyat ta's official title in its filings.

Judicial Economy58. The Majority of the Chamber will now consider the urge of both theProsecution and LRV for a deferral of this decision pending the Appeals Chamber'sdetermination of the Prosecution appeal against the Ruto Decision, considering thatthe decision of the Appeals Chamber may be dispositive of the Kenyatta request.This urge for deferral is supposedly motivated by concerns of judicial economy.^^59. The Majority of the Chamber does not consider that the argument on thispoint has been adequately made out in a manner that would facilitate consideration.While the Chamber will always welcome amply considered and researchedsubmissions aimed at assisting the Chamber in the determination of issues before it,it remains the prerogative of the Chamber to worry about judicial economy. Theconcern is neither made out in this case, nor does the Majority of the Chamberconsider the rendering of this decision in its own time as inconvenient to judicialeconomy. In the peculiar circumstances of this case, the contrary may well be thecase. In the result, the submission is rejected.

A Lesson worth Keeping in M ind at All Times

60. In the litigation now before this Chamber, the Prosecution maintains theposition that it should not be possible to proceed with a trial if the accused is notprese nt at trial. For that reason, they oppo se the Excusai Request.61 . In their written submissions. Defence Counsel noted that the trial in the caseof Ruto and Sang had to adjourn in order to permit Mr Ruto to return to Nairobi toattend to his duties as regards the terrorist incident at the Westgate Mall.

92 ICC-01/09-02/11-818, p ara 33; ICC-01/09-02/11-T-26-ENG, pag e 22, lines 13-18.N o. ICC-01/09-02/11 20/55 18 O cto be r 2013

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62. Indeed, the Westgate Mall incident por tend s a very imp orta nt object lesson inthe circumstances of the litigation u nd er consideration. It exposes, in a very obviousway, not only the dilatory potentials of the resistance to the Ruto relief now soughtby M r Kenyatta; it also exposes the dam aging possibilities of the refusal to g rant therelief. It is a veritable 'early warning sign' as to what is reasonable in theinter pre tatio n of Article 63(1) of the Rom e Statute . It is no t a sign to be igno red.63. Right in the middle of the examination-in-chief of the first prosecutionwitness in the Ruto and Sang case, the siege at Westgate Mall occurred. The very nextday, the Defence for Mr Ruto applied for an adjournment of the case, in order toenable Mr Ruto to return to Nairobi and play his part in managing the incident, inhis capacity as the Deputy President of Kenya. It was telling, of course, that theProsecutor did not oppose the Defence motion for Mr Ruto to return home. Indeed,the good sense of the request was doubly underscored by the fact that theProsecution had insisted th at the examination-in-chief of a prosecution witness m ustbe suspended for one week or possibly more while Mr Ruto was away.^^ This wasnotwithstanding the clear and unequivocal recommendation of the VWU that thetestimony of the witness be not interrupted at all, in view of the peculiarvulnerabilities rega rding h er security and psychological well-being. In the result, thetrial in the Ruto and Sang case was d elayed for seven c our t day s.64. The worry persists as to the very real potential that the resistance to the ideaof discretion of the Trial Chamber to proceed with a trial when the accused is notpresent, if judicially sustained, will one day mean that a case will be aborted,because an accused person has absconded following an earlier promise to appear.Such an abortion ma y resu lt in the frustration of the victims' yea rning for justice. Onno view could it be reasonably supposed that these outcomes are what the draftersof the Statute wanted for the Court. Yet, that is precisely what the Prosecutor's

93This was on account of an order for suspensive effect that the Appeals Chamber had made at theinstance of the Prosecution that prevented the Cham ber from proceeding with a trial in the absence ofMr Ruto.N o. ICC-01/09-02/11 21/55 18 O cto be r 2013

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position st ands for. To the contrary, these are outcom es that the Ruto relief preciselysoug ht to avoid. As Trial Cham ber V(A) observed in that decision:

[A]n interpretation [of Article 63(1)] that imposes the duty on the Chamber [tonot proceed with a trial in the absence of the accused] will not only fosterjudicial inefficiency by constraining the Chamber to stop the trial on everyoccasion that the accused is unable with good reasons to be present during thetrial although he consents that the trial may proceed in his absence ...; but itwill also hold the Court hostage to impunity by negating the power of theChamber to proceed with the trial of an accused who deliberately abscondedfrom his own trial in circumstances that are precisely calculated to frustrate thetrial and the course of justice. The outcome indicated in the latter scenario andthe view that supports it are wholly detrimental to the overall purpose of theestablishment of the Court. It plays into the han ds of the very impunity that theStatu te eschew s so fundamentally.^^

65. Given the lessons learnt so early in the Ruto and Sang trial when the trial hadto be adjourned for Mr Ruto to return h om e and attend to his duties in connection tothe Westgate terror attack, we find highly unsafe the Prosecutor's persistence in thephilosophical rectitude of her o pposition to the Ruto relief being granted in this case.

Application of the Ru to Decision66. In its decision of 18 June 2013, the majority of Trial Cham ber V(A) granted MrRuto a conditional excusai from continuous presence at trial, in order to enable himto perform his functions as the Deputy President of Kenya. It should be said fromthe outset that the entirety of the material reasoning employed in that decision isfully applicable to the cu rrent reque st of Mr Kenyatta, with necessary variations. A nimportant point of variation, however, is that Mr Kenyatta is the President. That isall the more reason that the Ruto relief should apply to Mr Kenyatta in a strongerway. In this connection, it is noted that the Majority of Trial Chamber V(A)considered that Mr Ruto had qualified for the conditional excusai granted him,because his position as Deputy President of Kenya involved 'important functions of

94Ruto Decision , supra, para 44.N o. ICC-01/09-02/11 22/55 18 O cto be r 2013

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an extraordinary dimension'.^^ Mr Kenyatta as the President deserves thatconsideration even more.67. The reasoning of the majority in the Ruto Decision is therefore fully adoptedfor purposes of the present decision. Strictly speaking, no more needs be said thanhas already been said in the decision of the majority of the Trial Chamber V(A).Nevertheless, the following further thoughts may be expressed, in fulleramplification of the reasoning already indicated, and to recognise evidentdevelopments that have since occurred.

Is Article 63(1) of the Statute so plain as to require no construction?

68. The Prosecution's position proceeds from the proposition that the wording ofArticle 63(1) of the Statute is so plain and straightforward that it requires noconstruction at all.^^ That und ersta ndin g of how the law w orks has lon g an drepeatedly been rejected by eminent publicists. To begin with, Francis Bennion'scaution that '[a]n enactment is not to be construed as if it were a piece of ordinaryprose'.^^ But perhaps more directly to the point. Lord McNair, notably, observed asfollows:

Plain terms. Many references are to be found in judgm ents, opinions, and otherdocumentary sources (British and others) to the primary necessity of givingeffect to the 'plain terms' of a treaty, or construing words according to their'general and ordinary meaning' or their 'natural signification' and so forth, andof not seeking aliunde for a meaning 'when the terms are clear'. But this so-called rule of interpretation like others is merely a starting-point, a prima facieguide, and cannot be allowed to obstruct the essential quest in the applicationof treaties, namely to search for the real intention of the contracting parties inusing the langu age em ployed by them.^^

9 5 Ruto D ecision, supra, para 49.9 6 ICC-01/09-02/11-818, par as 1, 6 and 22-23.9 7 Francis B ennion , Statutory Interpretation, 5 ^ edn [London: L exisNexis, 2008] p 474.9 8 Lord McNair, The Law of Treaties [Oxford: Clarendon Press, 1961 (reprinted 2003)] p 366.N o. ICC-01/09-02/11 23/55 18 O cto be r 2013

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69. In rejecting the obv ious point of such propo sitions. Lord McN air concluded asfollows:

In short, it is subm itted that w hile a term m ay be 'p lain' absolutely, w hat atribunal adjudicating upon the meaning of a treaty wants to ascertain isthe meaning of the term relatively, that is, in relation to the circumstancesin which the treaty was made, and in which the language was used. If thatis what is meant by the doctrine of 'plain terms', no objection is raised toit. But if it me ans tha t tribunals m ust stop sho rt at applying the term in itsprimary and literal sense and permit no inquiry as to anything further, itis subm itted tha t the do ctrine is wrong.^^

70. Given the view of Article 63(1) as a provision of notable conciseness. LordMcNair's choice of an example to illustrate the conclusion quoted above is perhapsworth repeating here:

An instance may be taken from another sphere of legal interpretation. Aman, having a wife and children, made a will of conspicuous brevityconsisting merely of the words 'All for mother'. No term could be'plainer' than 'mother', for a man can only have one mother. His widowclaimed the estate. The court, having admitted oral evidence whichpro ved that in the family circle the deceased's wife w as always referred toas 'mother', as is common in England, held that she was entitled to applyfor administration with the will annexed, which in effect meant that shetook the whole estate. 'Mother' is, speaking abstractly, a 'plain term', but,taken in relation to the circumstances surrounding the testator at the timew hen the will w as m ade , it was an ything b ut a 'plain term'.^

71 . In his own book on statutory interpretation. Justice G P Singh has similarlyobserved as follows: 'The rule, that plain words require no construction, starts withthe premise that the words are plain, which is itself a conclusion reached afterconstruing the words. It is not possible to decide whether certain words are plain orambiguous unless they are studied in their context and construed.'^^^ In their recentbook. Justice Scalia and Bryan G am er similarly observed as follows: 'It is som etimessaid that a plain text w ith a plain mea ning is simply applied and n ot "inte rprete d" or

^ Ibid, p 367.100 Ibid.101 G P S ingh, Principles of Statutory Interpretation, 8 ^ edn [Nagpur, India: Wadhwa & Co, 2001] p 4 5.N o. ICC-01/09-02/11 24/55 18 O cto be r 2013

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"cons trued." W hether th at is true is perh aps a matter of definition. A s we see things,"if you seem to meet an utterance which doesn't have to be interpreted, that isbecau se yo u ha ve int erp rete d it already."' ^^72. In the very correct observations of Scalia and Gamer: 'Any meaning derivedfrom signs involves interpretation, even if the interpreter finds the taskstraightforward.'^^^ That, too, is consistent with an earlier observation of Singhunde rscorin g the difficult task of statutory interpretation:

The task is often not an easy one and the difficulties arise because of variousreasons. To mention a few: Words in any language are not scientific symbolshaving any precise or definite meaning, and language is but an imperfectmedium to convey one's thought, much less of a large assembly consisting ofperso ns of variou s sh ades of opinion. ^

73. Matters are even more complicated when a court of law is confronted with asituation that the legislator had evidently not anticipated in the full clarity of theparticular situation presented after the enactment. Singh recognised that complexityin the following w ord s: 'It is impossible even for the m ost imaginative Legislature toforestall exhaustively situations and circumstances that may emerge after enacting astatute where its application may be called for.'^^ [As will be seen below in thecontext of a related discussion. Sir Hersch Lauterpacht had made a similarobservation in the sphere of intemational law.] The practical solution appears inSingh's observation as follows: 'In all real controversies of construction, if it wereopen to consult the Legislature as to its intention, the answer of most of thelegislators in all probability w ill be: "such a problem never occurred to us, solve it asbest as you can, consistent with the words used, and the purpose indicated by us inthe statute".'^^^ Therein lies what Bennion described as the 'dynamic processing' of

102 An to ni n Scalia a nd Bry an Ga rne r, Reading Law: The Interpretation of Legal Texts [St Pau l, M N :Thom son/W es t , 2012] p 53 .io3ftzd.10 4 Singh, supra, p 3.1 0 5 I b i d ,10 6 Ibid, p 7.N o. ICC-01/09-02/11 25/55 18 O cto be r 2013

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statutory language that is 'carried out from time to time by the courts.'^^^ And,according to him, the court in that regard 'has a certain degree of delegatedlegislative power'^^^; provided 'that the judge must bear always in mind whose wordshe or she is expounding!^^^ This underscores the role of policy considerations and thechoices that judges m ust m ake in that regard , is discussed in a related context below.74. In a nutshell, what is entailed in the task of statutory constructionwhichconcerns identification of the meaning of words in contextis possibly captured inthe following words of Lord NichoUs of Birkenhead:

Statutory interpretation is an exercise which requires the court to identify themeaning borne by the words in question in the particular context. The task ofthe court is often said to be to ascertain the intention of Parliament expressed inthe language un der consideration. This is correct and may be helpful so long asit is reme mb ered that the "intention of Parliament" is an objective concept, no tsubjective. The phra se is a shorthan d reference to the intention which the co urtreasonably imputes to Parliament in respect of the language used. It is not thesubjective intention of the minister or other persons who promoted thelegislation. Nor is it the subjective intention of the draftsman, or of individualmembers or even a majority of individual members of either House. Theseindividuals will often have widely varying intentions. Their understanding ofthe legislation and of the words used may be impressively complete orwoefully inadequate. Thus, when the courts say that such-and-such a meaning"cannot be what Parliament intended", they are saying only that the wordsunder consideration cannot reasonably be taken as used by Parliament withth at meaning. ^^

75. The reasoning of the majority of Trial Chamber V(A) in the Ruto Decision isconsistent w ith the foregoing.

1 0 7 Bennio n, supra, p 470.10 8 Ibid, p 471 .io9/bzd,p475.110 R V Secretary of State for the Environ ment, Transp ort and the Regions ex pa rt e Spath Ho lme [2001] 2 A C349 at 396 [House of Lords].N o. ICC-01/09-02/11 26/55 18 O cto be r 2013

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The Limited Value o/T rava ux Pr para toires

76. It is not necessary to refer to the travaux prparatoires in the settlement of theissues in this litigation. In this regard, it is noted that intemational law neitherrequires nor recommends consultation of travaux prparatoires in treatyinterpretation. It merely permits it in limited circumstances, as indicated in Article 32of the Vierma Convention on the Law of Treaties.^^^ As the Appeals Chamber hasheld, the travaux prparatoires of th e Sta tute may, in accordanc e w ith Article 32 of th eVCLT, be resorted to as a 'supplementary means of interpretation designed to provide(a) confirmation of the meaning of a statutory provision resulting from theapplication of Article 31 of the Vienna Convention of the Law of Treaties and (b) theclarification of ambiguous or obscure provisions and (c) the avoidance of manifestlyabsu rd or u nrea son able results'.^^^77. The constant tendency (clearly evident in the Prosecution's submissions inthis litigation) to refer to travaux prparatoires has a correlative tendency towards anexpectation that consultation of travaux prparatoires is something that should bedone as a matter of best practices in treaty interpretation, whenever there is adisagreement as to the correct interpretation. There is a certain fallacy in thatsuggestion in light of its implications. Intemational law has not seen fit to requirecons ultation of travaux prparatoires for an y reaso n in the task of treaty interp retatio n.What was done in Article 32 of the VCLT was to permit resort to travauxprparatoiresas a supplementary aidfor the limited purposes therein indicated. Itis obvious that such a permissive rule was a compromise achieved between theopposing stances of the system of law (the common law) that traditionally forbadeconsultation to preparatory material and the systems that did not similarly forbid it.

iiiArticle 32 of the Vienna Convention on the Law of Treaties reads, in relevant part, 'Recourse may behad to supplementary means of interpretation, including the preparatory work of the treaty and thecircumstances of its conclusion,' (emphasis added).112ICC-01/04-168, para 40 (em phas is ad de d) .N o. ICC-01/09-02/11 27/55 18 O cto be r 2013

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Had the intemational community (speaking through the instrumentality of theVCLT) found a policy need to prefer resorts to travaux prparatoires, a correspondingpolicy statement would have been clearly communicated in Article 32 of the VCLTin terms stronger than the mere gr ant of permission to do so. In the absence of such aclear policy statement, caution is called for against a practice that results by accretionto an ever-present expectation that consultation shoidd be had to travaux prparatoiresas a m atter of anyo ne's conception of 'best practices' in treaty interpretation. T hus, inthe circumstances such as the present, it is the Chamber's responsibility to construethe text of a particular provision in the Rome Statute which is a living legaldocument. The Chamber must be free to construe the existing text in the best way itsees that achieves the ends of faimess, reasonableness, good faith and justice in thecase; having particular regard to the text of the provision in context and bearing inmind the overall object and purpose of the Statute. The Chamber must be free toundertake that responsibility, unshackled from the need to make composite sense ofthe inchoate unused materials and other shavings (in the manner of possiblyunresolved disputes, partial texts, competing texts, revised texts, disparate views,and so on, in the drafting comm ittee) collected from the wo rk floor of those w ho haddone their own job of drafting the text as best they could in their own time and hadsince left th e scene. Indeed, intem ational law, in any of its aspects, will be muc h thepoorer in its purpose of service to the living world, if important treaties are fossilisedin the remains of travaux that may not embody improved content or understandingof other necessary tributaries of the law than at the time the treaty was drafted.Happily, the drafters of the VCLT appear to have understood the concern. That isw hy they did n ot requ ire consultation of the travaux for any reason.78. Moreover, resort to travaux prparatoires may be inappropriate in theinterpretation of treaties, like the Rome Statute, which sets up an intemationalorganisation. As AkehursVs teaches: '[T]ravaux prparatoires are used less forinterpreting treaties setting up intemational organisations than for interpreting other

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kinds of treaty. Treaties setting up international organisations are intended to lastlonger than most other types of treaty, and recourse to travaux prparatoires wouldnot always be appropriate in such circumstances, because it would mean looking atthe (possibly distant) past, instead of looking at the present and the future ...'^^^.Accordingly, the intentions of the States Parties at the time of conclusion of a treatymay have evolved overtime. Moreover, the fact that a large number of States Partieswho joined the international organisation may not have been represented at thenegotiation and conclusion of the treaty will make it 'politically awkward to rely onthe travaux prparatoires' o i th e treaty.^^^79. Other commentators have similarly diminished the value of travauxprparatoires. As Aust explained: '[T]ravaux are by their nature less authentic than theother elements, being often incomplete and misleading'.^^^ For his part. Lord McNairobserved: 'The Perm anent Court and the Intem ational Cou rt of Justice haveexercised great caution in [the matter of referring to preparatory work] and it is noteasy to extract from their references to it any clear principle [footnote omitted]. Theyhave sh ow n a reluctance to exclude resort to prepara tory wo rk e limine and at thesame time an unwillingness to accord to the practice anything like a decisive role.'^^^And according to Oppenheim's: 'It would be possible to argue that since it is theintention of the parties which is being sought, an examination ab initio into theirintentio ns is admissible, t hu s justifying a liberal use of travaux prparatoires, or evenof evidence wholly extrinsic to the treaty and the negotiations leading to it.However, the text of the treaty is normally the only authentic and the most recentexpression of what the parties intended, and consequently interpretation may be

113 Akehurst's Modem Introduction to International Law, 7^ revised edn (Peter Malanczuk) [London:Rou tledge, 1997] p 366.i i4 /hUii5Anthony Aust, Modem Treaty Law and Practice, [Cambridge: Cambridge University Press, 2007] atp244.ii6McNair, supra, at p 413 .N o. ICC-01/09-02/11 29/55 18 O cto be r 2013

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tho ugh t of as essentially a textual ma tter. Or again, there is the view th at the pa rties'intentio ns a re to be discerned from the object and pu rpo se of the treaty.'^^^80. As an optional and often unreliable aid, it is preferable to avoid, wherepossible, resorting to travaux prparatoires. In the present instance, they offer noassistance and, as discussed below, do not confirm the interpretation urged by theProsecution.81. The Prosecution submits, both in these proceedings and in the complaintagainst the Ruto Decision, that to interpret Article 63(1) in any way other thanrequiring continuous presence would be merely an exercise in a judicial choice ofpolicy amounting to re-writing the Statute. The Prosecutor registered that complaintin another forum, in the following w ay:

W hateve r "discre tion" a Trial Cha m ber m ay h ave , it does not permit it to discardcontrolling statuto ry requirements, or to substitute its own policy preferences for thoseof the States Parties. The Majority it is bound to apply the law as it stands. TheDecision fails to d o th is, and is incorrect a s a result.^^^

82. It needs to be said from the outset, that there is no reliable evidence that theStates Parties to the Statute had clearly indicated their own 'policy preferences' inany manner that should reasonably lead to the factual conclusion that they clearlyforesaw and carefully considered the negative results indicated earlier and accepted them aspart of the incidence of Article 63(1) as it should be applied. Evidence as to such aserious proposition is not achieved by the reconstruction of statutory history, m erelyby piecing together d isparate bits and pieces of not o nly inconclusive information inthe Statute's travaux prparatoires but also analytical inferences and conclusionsdrawn by researchers.^^^

117 Oppenheim's Intemational Law, Volum e 1 (Peace), 9th edn (Sir Robert Jennings an d Sir Arth ur Watts)[London: Longman, 1996], p 1271.118 See 'Prosecution appeal against the "Decision on Mr Ruto's Request for Excusai from ContinuousPresence at Trial"' 29 July 2013, ICC-01/09-01/11-831, para 4 (emp hasis ad de d).119 Ibid, paras 1822 and relate d footnotes.N o. ICC-01/09-02/11 30/55 18 O cto be r 2013

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83. Nor is there any reliable evidence from the preparatory material tending toshow that States Parties had settled any policy preference that precluded thediscretion that enabled Trial Chamber V(A) to grant Mr Ruto the excusai, as such,from continuous presence at trial. Available commentary appears to show thefollowing: First, the plenary session of the Rome Diplomatic Conference did notconsider any proposal that precluded from the Trial Chamber the discretion to granta Ruto relief. Second, delegates in the drafting committee did not consider thatArticle 63(1) precluded the discretion to conduct a trial in the absence of the accused.The extent of the agreem ent in the Drafting Com mittee is repo rted to have been onlyto the following effect: 'The general rule, i.e. the presence of the accused at trial, wasnot controversial. There was also agreement that measures to prevent the accusedfrom disrupting the trial and procedures for preservation of evidence had little to dowith the issue of trials in absentia.'^^^ The observation that measures to preventdisruption of trialseventually reflected in article 63(2)were viewed as havinglittle to do w ith trials in absentia is fully consisten t w ith t he following obse rvation s ofTrial Chamber V(A): 'Article 63(2) is unique and particular in its context; and that ithas a purpose that is not inevitably explained by a legislative intention to exclude aTrial Chamber's power to grant permission to an accused to be absent from his owntrial. The prim ary pur po se of Article 63(2) is to grant to the Trial Chamber the p ow erto (positively) prevent the accused from exercising what is also a right (the right topresence), w hen the accused insists on exercising that righ t in a disruptive w ay. Thatunique context of a positive power to effect lawful deprivation of the right of theaccused to presence at trial, by way of enforced absence against his will, does not, assuch, implicate any intention on the part of the drafter to exhaust the circumstancesin which a Trial Chamber may permit an accused at his own prayer to be absent

120 Ha kan Friman, 'Rights of Persons Suspected or Accused of a Crim e' in R oy S Lee (ed). TheIntemational Criminal Court: The Making of the Rome Statute [The Hague: Kluwer Law International,1999] 247 at p 259.N o. ICC-01/09-02/11 31/55 18 Octo be r 2013

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du ring his trial.' ^^ These are no t a safe basis to co nclude that the d iscretion to gra nt aRuto relief had been considered and rejected by the States Parties. Third, while therehad been a failure to agree to permit trial in absentia in express terms, there are tworeasons, among others, to reject the proposition that this had resulted from adeliberate policy preference of the States Parties. They are: (i) failing to agree upon acourse of action does not readily translate into an agreement against that course ofaction, such as might implicate a policy preference against that course of action; and(ii) there are serious reasons to consider that the failure to reach an agreement ontrials in absentia had resulted from a misapprehension of the law in significantrespects on the part of the common law delegates who had been generally creditedwith opposition to the idea. They appear to have been under the erroneousimpression that such trials were not permissible in common law jurisdictions or inintemational law, when in fact the opposite is true as to the correct position incommon law jurisdictions^^ and intemational law.^^s xhere also appears to havebeen a misap prehen sion that there w as a requirem ent to conduct trial de novowhenever an absconding accused turned up after a trial in absentia.^^"^ But, this is notalways the case. As the Demebukov case clearly shows, there is no obligation toconduce a trial de novo if it is shown that the accused had been reliably informed ofthe date of the trial, but he chose not to attend.^^^ Fourth, time had run out on thenegotiation to reach an agreement on trial in absentia. It could not, of course, besupposed that more time would have produced a clear agreement. Still, the runningout of time to conduct further negotiation, better research and consultation with

121 Ruto D ecision, supra, para 59.1 2 2 Ruto D ecision, supra, para 75, and footnotes cited therein.1 2 3 Ibid, para s 46 an d 76.1 2 4 United Nations, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of anIntemational Criminal Court, Rome, 15 June - 17 July 1998, Official Records, Volume III, Reports and otherdocuments. Doc No A/CONF.183/13 (Vol III) [New York: United Nations, 2002], Working paper onarticle 63, Docum ent A/CONF.183/C.1/WGPM/L.67, p 299, footnote 179; Also see Willam A. Schabas,The Intemational Criminal Court: Commentary on the Rome Statute [Oxford: Oxford University Press,2010] p 7541 2 5 Demebukov v Bulgaria, App licatio n No 68020/01, Judgment of 28 February 2008 [ECtHR].N o. ICC-01/09-02/11 32/55 18 O cto be r 2013

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experts, with a view to achieving a clear agreement in either direction is not a safebasis to conclude that the States Parties had arrived at a clear policy preference thatexcluded the discretion that Trial Chamber V(A) found to enable it grant the Rutorelief. It may be helpful here to remain mindful of Aust's caution that 'today eventhe records of a conference served by an independent and expert secretariat willgenerally not tell the whole story. The most important parts of a negotiation, and ofdrafting, often take place informally with no agreed record being kept. ... The reasonwhy a particular compromise formula was adopted, and what i t was intended tomean, may be difficult to establish. This will be especially so if the form of wordsw as d eliberately chosen to overco me a near irreconcilable difference of substance.' ^^This is especially the case where the conclusion of the treaty 'shows all the signs ofthe last-minute compromises which are needed to reach consensus.'^^784. Perha ps, more im portantly, th ere are four significant bits of information in theOfficial Records that make it unsafe to accept the suggestion that the reasoning ofTrial Chamber V(A) in granting the Ruto relief was inconsistent with the policypreferences of the States Parties. The first is that the text of Option 1 was consideredand rejected. Option 1 said as follows: 'The trial shall not be held if the accused is notpresent'.^2^ The second is that it was recognised that O ption 1 w ou ld have had theeffect of leaving no discretion in a Trial Chamber to conduct a trial in the absence ofthe accused. This recognition appears in footnote 179 at page 53 of the OfficialRecord: 'Option 1 prohibits trial in absentia without any exception; like option 2, itwould deal with procedures needed to preserve evidence for trial as a matterseparate from trial in absentia.' The third is that Article 63(1) was ultimately adoptedin a text that is different from the text of Option 1. The adopted text is this: 'Theaccused shall be present during the trial'. This was the precise text that the WorkingGroup had submitted to the Committee of the Whole in conference document1 2 6 Aust, supra, p 246 (emphasis added).127 Ib id .1 2 8 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an InternationalCriminal Court, Rome, supra, p 53.N o. ICC-01/09-02/11 33/55 18 O cto be r 2013

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A/CONF.183/C.1/WGPM/L.51. And, finally, the fourtii bit of information availablefrom the Official Records is that after careful consideration of the provisions ofArticles 64 and 67, the adopted text of Article 63(1) was found to best serve thepurp ose s of the Statute. The necessary information in that regard a ppear s in footnote178 at page 298 of the Official Record that says as follows: 'After having furtherreflected up o n t he pro vision s in Articles 64 and 67, it has bee n co nclude d tha t the textof parag raph 1 in docum ent A/CONF.183/C.1/WG PM/L.51 sho uld be reta ined.'[Emphasis added.] It is unhelpful, of course, to speculate as to the content of thefurther reflection alluded to in the footnote. But it is sufficient to note that theinterplay between Articles 63(1), 64 and 67 was ultimately considered by theWorking Group in definitively settling upon a text of Article 63(1) that is differentfrom the text of Option 1. It is significant then that the reasoning of Trial ChamberV(A) had similarly involved a careful analysis of the interplay among Articles 63(1),64 and 67 in arriving at a decision that, like the Working Group, similarly rejected anoutcom e tha t wo uld have been dictated by the text of O ption 1 in its effect asexplained in footnote 179 at pag e 53 of the Official Reco rd.85. While it is unhelpful to speculate as to the content of the reflection in whichthe Working Group had engaged in ultimately settling upon the eventual text ofArticle 63(1), it m us t be accepted as a practical m atter that, in its ou tw ard effect, suchreflectiondone in relation to the adopted text in its interplay with Articles 64 and67may reasonably be considered (as the Majority of the Chamber does indeedconsider it) to have overtaken any prior disagreements that might have been seen inthe negotiation of the text of Article 63(1). As seen earlier, Oppenheim's supports thisappro ach: '[T]he text of the treaty is norm ally the only authen tic and the mo st recentexpression of what the parties intended, and consequently interpretation may bethought of as essentially a textual matter.'^^Q ^ j ^ ^ ^ ^g ^^g^. concludes: 'Travaux must

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therefore always be approached with care. Their investigation is time-consuming,their usefulness often being marginal and very seldom decisive.'^^^86. In the light of the foregoing, the effects of Articles 64 and 67, particularly asTrial Chamber V(A) has explained, cannot be ignored for purposes of a properunderstanding of Article 63(1). Among those effects is the effect of Article 64(6)(f)that reserves for the Trial Chamber a general, residual power to rule as it sees fair,reasonable and just in the particular circumstances confronting the Chamber.^^^ It isthrough such ex aequo et bono power, as it were, that the Trial Chamber is able toprevent the generally accepted rule of presence of accused at trial from beingsomething that unwittingly produces injustice, unfairness or inefficiencies in theadministration of justice.87. In the circumstances, then, it is clear tha t the travaux prparatoires canno t safelybe relied upon to 'confirm' the interpretation of Article 63(1), as advocated for by theProsecution in their argument that there is no discretion in the Trial Chamber toproceed with the trial when the accused is not present. The suggestion thus becomesentirely unsustainable to the effect that in granting a Ruto relief, a Trial Chamberwould have been acting against the clear 'policy preference' of the States Parties tothe Statute. Indeed, it is not unreasonable to suppose that had the States Partiesclearly foreseen the situation in the present case, they would more likely than not,have expressly granted a Trial Chamb er the discretion to grant a Ruto relief.

The Superior or More Reliable Aids in Treaty Interpretation

88. Recalling the commentary in Akehurst's quoted above, it is appropriateinstead to focus our attention, for interpretative purposes, on the present and thefuture operation of the Rome Statute.

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89. In any event, the question at hand is more confidently resolved by resortingto the 'othe r elem ents' th an o n travaux prparatoires, as recom m ended by A ust (notedearlier). Some of the superior interpretative aids to which travaux prparatoires mustyield the right of way, pursuant to the hierarchy of aids established in Article 31(relative to Article 32) of the VCLT, are described in the paragraphs immediatelyfollowing b elow . In particular , it is no t necess ary to reso rt to th e travaux prparatoiresto 'determine' the meaning of Article 63(1), because the employment of the othersuperior aids indicated in Article 31 of the VCLT (as discussed below) do not leavethe me aning of Article 63(1) of the Rome Statute 'am biguo us or ob scure'; or lead to aresult which is 'manifestly absurd or unreasonable', such as would recommendresort to the travaux prparatoires in the optional way that Article 32 of the VCLTpermits. We will now review those superior aids.90. The object and purpose of the treaty [Article 31(1) of VCLT]. Here, it must beaccepted that any interpretation of the treaty that could defeat its object and purp osemust be rejected as a correct interpretation of the treaty. This is particularly the casewh en such an interp retation aims only to achieve a collateral, discrete objective th atis not necessary for the achievement of the more over-arching object or purpose ofthe treaty. It is for that reason that the Majority of the Chamber rejects aninterpretation the objective of which is only to secure the continuo us presence of theaccused: when the interpretative formula employed to achieve that limited objectivewill (a) foreseeably result in the denial of justice to victims, and foster continuingimpunity, when an accused person absconds after an initial appearance or presenceat trial, and the trial is required to be stopped indefinitely; or (b) delay theadministration of justice if undesirable adjournments were to be granted in a case,such as hap pen ed w hen Trial Cham ber V(A) adjourned hearing for over one week inorder that Mr Ruto may return to Nairobi and attend to his duties when theWestgate Mall was attacked by armed assailants.

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91 . The context of the treaty [Article 31(2) of VCLT]. This includes: the text of thetreaty, the preamble of the treaty, any annexes to the treaty, any related agreementby all the parties in connection with the conclusion of the treaty, and any otherdocument of one or more parties made in connection with the conclusion of thetreaty and accepted by the other parties as a related document. It is important toconsider that the enumeration of the context (in Article 31 of the VCLT) as includingthe text, the preamble, the annexes, any cognate agreement or even instrumentdeveloped by one party and accepted by others, lends further support to thegenerally accepted idea that a treaty must be read as a whole and not in its isolatedwords and parts, according to the principle of integration explained by Sir GeraldFitzmaurice as follows: 'Treaties are to be interpreted as a whole, and particularparts, chap ters or sections also as a whole.' ^^ In this connection, it is no ted that TrialChamber V(A) had adopted an integrated construction of the Rome Statute thatresulted in the grant of the Ruto relief. That appro ach in its entirety is adopte d in thedisposition of the present case.92. Relevant rules of international law in relations between the parties [Article 31(3)(c)of VCLT]. This must comprise both pre-existing and emergent rules of intemationallaw implicated by the circumstances. Pre-existing rules will, of course, comprisethose rules that have not been clearly displaced by the treaty applied in good faith,keeping in mind that included in the very first directive of Article 31 of the VCLT isthe principle that a treaty 'shall be interpreted in good faith'. Good faith must meannot only that parties must give the treaty a necessary effect, but that they mustrefrain from giving it unnecessary effect, especially when to do so will likely infringeup on im port ant interests of otiier states. In circumstances such as the prese nt case, acardinal consideration mu st be given to the need to avoid unnecess ary infringementof the sovereignty of states, if sovereignty is not legitimately supplanted to thatextent by a necessary application of the treaty.132 See Gerald Fitzmau rice, 'The Law and Proc edure of the Intem ation al Co urt of Justice 1951-4:Treaty Interp retation and Othe r T reaty Po ints', (1957) 33 British Yrbk Int'l L 203, at 211.N o. ICC-01/09-02/11 37/55 18 O cto be r 2013

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Judicial Choice of Public Policy in Statutory or Treaty Interpretation

93. What is ultimately implicated in the circumstances of the litigation nowpresented to the Trial Chamberand particularly in the light of the stark lessonslearnt from the need to adjourn the Ruto and Sang trial to enable Mr Ruto attend tohis duties related to the Westgate attackis better appreciated and resolved in thelight of Singh's earlier noted observation as follows: 'In all real controversies ofconstruction, if it w ere op en to consult the L egislature as to its intention, the answ erof most of the legislators in all probability will be: "such a problem never occurred tous, solve it as best as you can, consistent with the words used, and the purposeindicated by us in th e sta tut e" .' ^^ This is precisely the presc ient valu e of Article64(6) (f) tha t reser ves for the T rial Ch am ber a genera l, residu al p ow er to rule as itsees fair, reasonable and just in the particular circumstances confronting theChamber.94. Against the foregoing, it is next to be considered whether in the task ofstatutory or treaty interpretation, especially when unforeseen situations have beenencountered, it is legally correct for a Trial Chamber to make a public policy choicein finding workable legal solutions. The correctness of such an exercise in judicialchoices is to be evaluated against the validity of the Prosecutor's dura lex, sed lexargument, to the effect that the law must be applied as it stands regardless of theconsequences. In that regard, any complaint against the making of a judicial choiceof policy must labour under a serious misconception of the law. In the particularcircumstances of the present matter, such a complaint does more to validate theDickensian negative description of the law in colourful terms of asininity.^^ The

1 3 3 Singh, supra, p 7.1 3 4 "That is no excuse," replied Mr Brownlow. "You w ere present on the occasion of the destruction ofthese trinkets, and indeed are the more gu ilty of the two, in the eye of the law; for the law supposesthat your wife acts under yo ur direction.""If the law su pposes that," said Mr Bumble, squeezing his hat emphatically in both han ds,"the law is a assa idio t. If that's th e eye of the law, the law is a bachelor; an d the w orst I wish th eN o. ICC-01/09.02/11 38/55 18 O cto be r 2013

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purchase of the complaint is quite paltry, particularly because jurists of greateminence accept that statutory interpretation should comport to public policy whenthe legislator has not clearly indicated an ov erriding intention. They also accept tha tit is within the province of the court to identify the applicable public policy andcomport the statutory language to it.95. Francis Bennion, for instance, helpfully explains the role of public policy inthe following way: 'No [statute] can convey expressly the fullness of its legal effect.Indeed only a small prop ortion of this intend ed effect can be conveyed by the w ord sof the [statute]. For the rest. Parliament assumes that interpreters will drawnecessary inferences. One inference is that, unless the contrary intention appears.Parliament expects relevant aspects of legal policy (which is based on public policy)to be applied.'^^^ And, commenting further on the point, Bennion observed:'Whichever way legal policy falls to be applied in the construction of legislation itbears the same essential character, being the peculiarly legal aspect of the generalarea that judges call public policy. So we may find them referring to it either as legalpolicy or public policy.'^^^96. Oliver Wendell Holmes Jr also wrote in support of the view that public policyis a legitimate consideration in the administration of justice. According to him: 'Thelife of the law has no t been logic: it has been experience.' More t han m ere 'syllogism'to be automatically followed without regard to consequences, the development ofthe law has had more to do with human-intelligence factors, such as 'felt necessitiesof the time', 'prevalent moral and political theories', and 'intuitions of public policy,avowed or unconscious', etc. He rejected the idea that the law is properly to beunderstood 'as if it contained only the axioms and corollaries of a book of

law is, that his eye may b e ope ned by experienceby experience ": Charles Dicken, Oliver Twistavailable at http://ww w.online-literature.com/dickens/olivertwist/52/.1 3 5 Bennion, supra, p 769.1 3 6 Ibid, p 770.N o. ICC-01/09-02/11 39/55 18 O cto be r 2013

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mathematics.'^^^ The role of public policy is particularly never to be underestimated:'Every important principle which is developed by litigation is in fact and at bottomthe result of more or less definitely understood views of public policy ...'.^^^97. In the sphere of international law in particular, reference may be had to thescholarship of Professor Rosalyn Higgins (as she then was)eminent scholar whoeventually served as a judge of the International Court of Justice. According to her,'there is no avoiding the essential relationship between law and policy'.^^^Dismissing an assum ption that a court can arrive at 'the correct legal view ' sanitisedof 'considerations of non-judicial character' m ore ap pro priate 'for the political ratherthan th e legal arena', she wrote as follows:

Reference to ' th e correct legal v iew ' or 'ru le s' can never avoid the element of choice(though it can seek to disguise it), nor can it prov ide gu idance to the preferabledecision. In making this choice one must inevitably have consideration for thehum anita rian , m oral, a nd social pu rpo ses of the law. ' ^

98. As she had also observed m ore fully:Policy considerations, although they differ from 'rules', are an integral part ofthat decision m aking process w hich

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