President Kenyatta of Kenya attended a status conference this week at the International Criminal Court (ICC), beating out President Al Bashir of the Sudan to become the first sitting head of state to appear before an international criminal tribunal since Nuremberg. (Admiral Doenitz was technically still Germany’s head of state at the end of World War II, having been designated the heir apparent in Hitler’s last will & testament). Kenyatta tried to avoid this dubious distinction by invoking a never-before-used provision of the Kenyan Constitution (Article 1473) enabling him to temporarily step down and pass power to his Deputy President and fellow ICC defendant, William Ruto. Nonetheless, the press did not see through this “personal capacity” stratagem and was abuzz over the significance of his presence in The Hague. (The BBC, for example, called this week’s session a “landmark hearing”). To date, the three Kenyan defendants are subject to summons to appear vice arrest warrants. The Court might have issued such a warrant had Kenyatta refused to appear, a move that was apparently under contemplation and being urged by some of his supporters. Kenyatta convened a controversial special session of Parliament on Monday this week to announce his decision to travel to The Hague. Many members of the opposition boycotted the gathering.

Kenyatta had attempted to invoke the new ICC Rule 134quarter and appear by video-link rather than in person as he and Ruto had done in the past. That Rule traces its provenance to last year’s meeting of the Assembly of States Parties and emerged as a pragmatic compromise between states that wanted to amend the statutory provision invalidating the defense of head of state immunity in the ICC Statute (Article 27—Irrelevance of Official Capacity) and states that wanted the cases to go forward without impediment, even when heads of state are in the dock. This standoff materialized against a backdrop of heightened animosity toward the Court among some African Union members, ultimately unfounded rumors that there would be a mass African exodus from the Rome Statute, and the terrorist attack on the Westgate Mall in Nairobi. The Rule was promulgated with an eye toward relieving some of the tension between Kenya and the Court.

The new Rule, which unlike a statutory amendment could be immediately put into effect, allows the Trial Chamber to excuse an accused from continuous presence at trial when she has to perform “extraordinary public duties at the highest national level.” Although a convenient diplomatic solution to a potentially damaging impasse, the legality of the Rule change has been contested by academics on “constitutional” grounds, given that the Statute at Article 63(1) states that “the accused shall be present during the trial”—a provision that cannot be amended by way of a Rule. But, so far, the Rule has escaped legal challenge. Although both Kenyatta and Ruto had been excused from appearing in the past, the judges insisted on Kenyatta’s presence at this particular hearing on the grounds that the case had reached a “critical juncture”. Although he had been admonished that he could not make statements of a political nature or in his official capacity while in Court, in the end, Kenyatta remained silent throughout the hearing, enabling him to argue later that it was a waste of his time.

The courtroom public gallery—which is usually close to empty—was full of Kenyatta supporters, curious onlookers, the Kenyan Attorney-General (who was not allowed in the courtroom), and Kenyan MPs, presumably there in solidarity with their head of state. Crowds also greeted Kenyatta’s return to Nairobi yesterday, furthering indicating that the defendants have been able to turn the ICC proceedings to their advantage. Indeed, Kenyatta regaled his supporters with promises of resisting international meddling and intimidation.

Two narratives have emerged in the aftermath of the hearing. To supporters of Kenyatta, the hearing marked the death knell for the Prosecutor’s case. The Defense argued that if the Prosecution cannot marshal sufficient evidence for the trial to go forward, the charges should be dismissed, presumably with prejudice (although this concept does not find expression in the Statute). Indeed, it is not clear when double jeopardy will attach; the relevant provision of the Statute (Article 20(1)) implies that the defendant would have no right to invoke double jeopardy prior to his conviction or acquittal:

No person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.

This provision is consistent with the International Covenant on Civil & Political Rights, which states at Article 14(7):

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Under U.S. law, double jeopardy usually attaches at a much earlier stage: when the jury is sworn or, in a bench trial, when the first witness is sworn or evidence introduced.

By contrast, supporters of the Court and the victims pressed an alternative narrative: that the cases should be adjourned without prejudice to the Prosecution because Kenya, and the defendants, have withheld crucial and potentially damning evidence (including the President’s phone and financial records that will show that the President mobilized and bankrolled the Mungiki gangs responsible for the post-election violence in 2007-8). Furthermore, the Prosecution has argued that witnesses have been subjected to unprecedented intimidation, causing several to refuse to appear. It is urged that the Trial Chamber should cite Kenya for non-cooperation and refer the matter to the Assembly of States Parties for censure. Counsel for the victims spoke passionately about the need not to “reward” Kenya for its intransigence and non-cooperation.

The issue of recalcitrant witnesses has plagued the Kenya cases. The Appeals Chamber yesterday unanimously upheld a ruling by the Trial Chamber to compel witnesses to testify via video-link from Kenya in the parallel case involving Ruto and media personality Joshua arap Sang. The opinion noted that while the Court could not compel witnesses to travel internationally to the Court, it could request a State Party to compel witnesses to appear before the Court via video-link per Article 93(1)(b). The legal authority comes from specific statutory provisions that indicate that the Court may “require the attendance of witnesses” (Article 64(6)(b)), notwithstanding that the Statute is silent as to the penalty for non-compliance. Four such witnesses had already been compelled to testify while this appeal was pending. Indeed, while co-leading a study tour for Stanford Law Students to The Hague with my colleague Jenny Martinez, we observed the testimony of one compelled witness, who testified via video-link under protective measures (a pixelated image and voice distortion) and who had been declared “hostile” by the Trial Chamber—the first such instance at the ICC.

The Court has taken the Prosecutor’s request for an indefinite adjournment under advisement. Our prior coverage of the looming stand-off between Kenya and the Court can be found here.