Campaigners for international justice are warning that a decision that could allow Kenya's president and his deputy to absent themselves from trial in The Hague has sidelined the victims who are meant to play a central role.
Their concerns follow a decision by the Assembly of States Parties (ASP) in late November to make changes to the rules of the International Criminal Court (ICC) on when and how defendants can absent themselves from trial.
One amendment allows defendants who have "extraordinary public duties at the highest national level" to ask judges for leave of absence, as long as they are not subject to an arrest warrant. The other allows a defendant who needs to attend under a "summons to appear" to follow trial proceedings via video-link rather than being physically present. Both procedures would need to be approved by ICC judges in the case concerned.
The decisions followed heavy lobbying by the Kenyan government. The country's deputy president, William Ruto, is already on trial in The Hague, while President Uhuru Kenyatta is scheduled to make his first appearance in a separate trial next year. Both are charged with planning and financing crimes of murder and forcible population displacement that occurred over two months following a disputed presidential election in December 2007. The violence left more than 1,100 people dead and 650,000 others uprooted from their homes.
Some campaign groups see the concessions agreed by the ASP - a body made up of the states that signed the ICC's founding document, the Rome Statute - as far too big a compromise. They warn that an act of political expediency designed to ensure that the ICC trials proceed at all costs compromises the independence of the court and the interests of victims.
The ICC's founding agreement, the Rome Statute, gives victims a voice before the court, either in person or through a legal representative. If the trial ends in a conviction, they can also apply for reparations from the court.
This special place accorded to victims is separate from their appearance as witnesses for the prosecution or defence.
In speeches to the United Nations and in submissions to ICC judges, Prosecutor Fatou Bensouda has repeatedly said that those who have suffered from conflict are a central focus of her efforts.
"The victims of such crimes cannot be left unheard," Bensouda said in a December 9 statement condemning the continuing violence in the Central African Republic.
Since Kenyatta and Ruto were elected in March 2013 the Kenyan government has made repeated attempts to shield them from trial. It argues that forcing them to be present in The Hague jeopardises the security and stability of Kenya and the Horn of Africa.
In its latest effort, Kenya proposed that the Rome Statute be amended to grant sitting heads of state immunity from prosecution as long as they are in office. That was unsuccessful, but Kenyan pressure at the ASP conference paid off when two additional rules were agreed.
Karim Lahidji, chair of the International Federation for Human Rights (FIDH), was among the campaigners who condemned the rule change as an affront to victims of the 2007-08 violence.
"States have conceded to political pressure, thereby endangering the integrity of the Rome Statute and disregarding victims' interests and concerns," Lahidji said at the conclusion of the week-long annual gathering in The Hague.
William Pace, convener of the Coalition for the ICC, a non-government group that backs the court, warned that the rule change amounted to a "serious political threat" to the ICC and to the victims it serves.
An earlier meeting held by the African Union (AU) on the Kenya cases also raised concern among campaign groups.
At an emergency meeting in October, the AU issued a resolution stating that sitting heads of state should not face prosecution at an international court, and that Kenyatta should not attend the opening of his trial.
On November 15, the United Nations Security Council rejected a request from the Kenyan government to postpone the two Kenya cases - one against Kenyatta, the other against Ruto and journalist Joshua Arap Sang - for a year.
International justice advocates point out that there is no forum for victims or their representatives when the AU or the Security Council meet to discuss these matters, unlike at the ASP meeting.
At a recent IWPR debate in The Hague, Ambassador Gerald Thompson, representing the foreign ministry of Trinidad and Tobago, acknowledged that the focus on victims among the ICC's participating states was "not as great as it should be".
But Thompson insisted that when they approved the change to the ICC's rules, member states did take the concerns of victims into account.
"Delegates were conscious that you cannot just [consider] the prosecution and the accused in cases such as [Kenya], because the victims have rights as well," he said.
Britain was one of a few states that proposed changes to the rules to allow defendants to participate in their trials via video-link rather than attend in person.
In a statement, the British Foreign Office said it did not share the view that the new rules endangered the integrity of the Rome Statute or that they disregarded victims' interests.
"The UK is strongly committed to the Rome Statute principles of providing justice for victims and ending impunity," the statement said, noting that the final decision on whether to allow a defendant to be absent still lay with ICC judges.
While some critics say the ASP members were over-sympathetic to the concerns raised by the Kenyan government and the AU, others argue that the ICC itself has failed to engage adequately with victims on the ground.
Betty Okore, from the Civil Societies Organisations Network in Kenya, is concerned that The ICC opened investigations in Kenya in March 2010, but the court is yet to give victims enough information about their rights and how they can participate in the trials.
"Many victims, including some who have registered to appear in trials in the Kenyan cases, keep asking questions touching on their rights and reparations, among other issues on which they should have been informed long ago," Okero said.
She told IWPR that the Rome Statute should be amended to explicitly outline measures to inform victims about the ICC process and their rights before the court.
"The victims should be supported so that they register in large numbers to participate in trials," she said.
In June this year, 93 of the victims allegedly signed a letter to the ICC applying to withdraw from the case against Ruto and Sang. Only 47 of them are technically registered in the case, half of which have since confirmed their wish to withdraw.
However, other experts on international justice back the ICC's handling of victims.
During a recent IWPR recent debate at the ASP, David Donat Cattin of Parliamentarians for Global Action pointed to safety concerns, particularly in Kenya, that have constrained the court's ability to interact with people on the ground.
He also pointed out that while recognition of the victims' suffering is an important part of the criminal justice process at the ICC, expectations are often too high.
"What you can get out of a criminal trial is very limited," Donat Cattin said. The trial process "may be very important to the individual who suffered, but any type of reparations that the justice process puts on the table may not be comparable to the suffering that an individual has encompassed."
(See also IWPR Debate: Can ICC Prosecute Heads Of State?.)
The ICC's registrar, Herman von Hebel, told IWPR that victims remained at the heart of the Rome Statute and were "incredibly important" to the court's work.
He acknowledged the limits to the court's ability to engage with all victims, but said this would improve with the larger budget that was approved by member states last month.
"Increased funding will help the outreach team to have more activities including forums to [engage] victims in situation countries," Von Hebel said.
For its part, the Kenyan government rejected accusations that the changes to the ICC's rules enabling state officials not to attend trial would prejudice the victims.
Foreign minister Amina Mohamed said the change did not affect the victims' participation.
"The right of victims to be represented in trials is well enshrined in the Rome Statute, and we are not in any way touching on that," Mohamed said.
She added that allowing Kenyatta to miss proceedings and be represented by his lawyers would help to speed up his trial, and hence enhance the delivery of justice both to the defendant and to the victims.
"We cannot in any way overlook the fate of victims and their rights to be respected locally and internationally," Mohamed said.
Mathews Ndanyi is an IWPR-trained reporter in Eldoret.
This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.