International court members agree on trial exceptions for top leaders


The International Criminal Court’s member states on Wednesday agreed to changes to the court’s trial procedures that could help defuse tensions between the court and the African continent regarding the approaching trial of Kenya’s president.

The changes approved by the court’s 122 members will make it easier for suspects to participate in trial proceedings via video link and create a special exemption for top government officials, Western diplomats said.

Kenya and its African Union allies have been lobbying hard for the trial of Kenyan President Uhuru Kenyatta to be halted or postponed, saying the case threatens to destabilize the East African region.

Kenyatta and his deputy, former political rival William Ruto, face charges of crimes against humanity relating to ethnic clashes after Kenya’s 2007 elections, when 1,200 people died.

The new rules allow judges to grant an exemption to a suspect who is “mandated to fulfill extraordinary public duties at the highest national level,” according to the text seen by Reuters.

Earlier this month, Kenya and the African Union failed in their bid to have the trials of Kenyatta and Ruto deferred by the U.N. Security Council for one year, leading some African leaders to urge Kenyatta to boycott his trial, which is due to start on February 5.

A boycott would pose a dilemma to the 10-year-old ICC’s strongest supporters in Europe and North America, which see Kenya as an important ally in the fight against Islamist militancy in neighboring Somalia.

Samantha Power, the U.S. ambassador to the United Nations, welcomed the vote, which she said would make it easier for Kenyatta and Ruto to “mount a vigorous legal defense” while doing their jobs as Kenya’s top elected officials.

In a statement, she praised the court’s Assembly of States Parties for amending the court’s procedures “in a manner that appropriately protects the rights and interests of both victims and defendants while allowing the judicial process to proceed without delay.”

The United States is not a member of the court, but it has tacitly supported it since President Barack Obama took office in 2009, and has urged Kenya’s leaders to cooperate in their trials.

But Human Rights Watch cautioned the amendment would have little practical impact, while risking creation of “two-tiered justice” with exceptions for the powerful.
“This amendment keeps the decision on attending trial in the hands of the ICC’s judges, so it remains to be seen whether the change will make any practical difference whatsoever,” said Liz Evenson, senior counsel at Human Rights Watch.

Judges have been lenient in granting requests by Ruto to be excused from his trial, which began in September. They immediately allowed him to return home to deal with the attack by Somali militants on a shopping mall in Nairobi in October, in which at least 67 were killed.

The court, which has so far prosecuted only Africans, has long been under fire on the continent, where it is widely seen as an instrument of neo-colonial interference.