"Such political decisions endanger the independence of the Court and may put the Judiciary in a difficult position, where it might not be able to apply a rule that is inconsistent with the Rome Statute" , said Paulina Vega, FIDH Vice-President, who led FIDH delegation to the ASP. "It is regrettable to witness how States Parties have favoured political compromise over the interests and rights of victims, that they said to support a few days before, during the ASP plenary special session dedicated to victims" , she added.
FIDH, along with other civil society organisations, conveyed victims’ views to the States’ delegations. As stated by legal representatives of victims and local NGOs, victims and affected communities prefer to have no trials than having them at a compromised Court.
"We understand that the Kenyan Government, through the African Union, put a lot of pressure on States Parties, especially on the issue of excusal from presence at trial for Heads of States or Governments. By caving in to Kenya’s diplomatic pressure, States Parties are setting themselves on a collision course with the Court, especially where the adopted amendments to Rule 134 are expected to bring the court under the ambit of political considerations by forcing it to consider making rulings which are contrary to Article 27 of the Rome Statute. In a nutshell, the Assembly of States Parties has thrown the rule of law out of the window and replaced it with the rule of politics. It is sad to note that the interests of the victims, who do not have the same diplomatic and political gravitas as do Kenya’s President and Deputy President and whose voices were only strenuously articulated by the civil society in this Assembly, have been severely compromised at the altar of political expediency" . said George Morara, Senior Programme Officer, KHRC.
"States Parties should have paid attention to the concerns of the ICC and civil society in their discussions. Indeed, while the rights of the accused must be respected, there are other rights that must be balanced by the judges in the courtroom, such as those of victims" , said Patrick Baudouin, FIDH Honorary President.
"FIDH and its member organisations will remain highly mobilised against possible States attempts to undermine the Rome Statute and the ICC judges integrity" , said Karim Lahidji, FIDH President.
States decided to amend the procedural rules of the ICC under political pressure from Kenya and other African countries. They opened the possibility, under Rule 134 of the Rules of Procedure and Evidence, for high ranking government officials, who “fulfill extraordinary public duties at the highest national level”, to be excused from being present in the courtroom during their trials in The Hague. This contradicts the principle of equality before the law and the spirit of the Rome Statute that intends to send a strong message that all alleged perpetrators of international crimes should be held accountable for their crimes, regardless of their official capacity, as stated in Article 27 of the Statute.
The Rome Statute requires the accused to be present during trial and does not recognise special treatment for any accused person. However, the amendments approved during this Assembly seem to turn exceptions into a rule in order to respond to a political situation created by the election, early March 2013, as President and Vice-President of the Republic of Kenya of two accused, Mr. Kenyatta and Mr. Ruto.
While diplomats were discussing compromises, the Trial Chamber of the ICC ruled on 26 November that the Kenyan President, Uhuru Kenyatta, would only be excused from the courtroom in exceptional circumstances, and that his absences would not become the rule. Moreover, Judges emphasized that any absence of the accused should be limited to what is strictly necessary.
States Parties also decided to adopt a Rule that allows accused to participate in their trial through the use of video technology, stating that this would amount to presence. However, FIDH and KHRC estimate that this video participation does not constitute presence according to the Statute, and should be considered in very limited exceptional circumstances, taking the views of all the parties and participants into account.
Paradoxically, during the present Assembly, States Parties dedicated a special plenary session to address the importance of victims’ rights and the value of their participation in the proceedings and for the ICC in fulfilling its mandate.
States also approved a budget that, while inferior to the budget required by the Court, still reflects an effort from States to provide the Court with more resources to deal with the growing workload. We call upon the Court to pay due consideration, in its implementation of the budget of 2014, to victims’ rights to a meaningful participation, legal representation and reparation.