Extraordinary Exceptions at the International Criminal Court: The (New) Rules and Jurisprudence on Presence at Trial

Abstract

After their election as President and Vice-President of Kenya, Uhuru Kenyatta and William Ruto asked to be excused from continuous presence during their trials at the icc. This request raised difficult questions for the Court’s Judges. First, can the accused be excused or is continuous presence a procedural requirement? Secondly, can an excusal be granted because the accused has to fulfil demanding functions as (Deputy-) Head of State or would this be a prohibited distinction on the basis of official capacity? Thirdly, under what circumstances would it be reasonable to excuse the accused? Do the daily tasks of a (Vice-) President justify an excusal? This article examines and criticizes how the Judges of the Trial Chamber(s) and subsequently of the Appeals Chamber have answered these questions. It concludes that the two Kenyan leaders have obtained extraordinary exceptions that cannot be reconciled with the relevant provisions of the Rome Statute.