What a delightfully deceptive dark knight is the Law, this great pleaser and breaker of hearts!! : “Consistent with the … Statute….”. And then the small matter of Article 69(3) of the Statute: “The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth.”
ASP didn’t change a thing: prior recorded evidence, even when recanted, can be admissible. DP William Ruto and Joshua Arap Sang need good lawyers and genuine prayers, not court jesters, Spin doctors and propagandist.
To remove confusion on ASP resolution and amended Rule 68
What really happened at the 14th Conference of the Assembly of States Parties(ASP14) in relation to Rule 68? The amended Rule 68( 2013) states clearly that the rule will not apply retroactively.
The ASP14 resolution reaffirmed that position. Consequently nothing changed (the only thing Kenya got was only this reaffirmation). The Rule was not suspended neither was the resolution included in the catch-all â€œomnibus resolutionâ€ on strengthening the ICC and ASP.
Therefore the insertion of the requested Kenyan language in the final report holds no obligations for states or the ICC.
You recall that Trial Chamber had ruled that the rule would not be retroactive and should it be applied it would not be to the detriment of the rights of accused person( read the Trial Chamber ruling HERE to full understand).
The Appeal Chamber will determine whether Trial Chamber erred or applied the rule in violation of the Rome Statute on issue of retroactivity and other related matters.The resolution of the ASP did not in anyway affect the appeal. In essence the Kenya fuss was irrelevant and unwarranted
It is still ICC Appeal Chamber judges with final decision on application of Rule 68
HERE is the summary as was captured in the official website of ASP/ICC:>>
ICC independence at center of last ASP day
The 14th session of the Assembly of States Parties concluded late this evening. States adopted final resolutions on the ICC’s 2016 budget, on cooperation and strengthening the ICC system. The Assembly elected a new member of the Trust Fund for Victims’ board and deleted article 124 from the Rome Statute, the ICC’s founding treaty.
After difficult negotiations and pressure throughout the week, the Assembly included in its final report language requested by the Kenyan government “affirming” the non-retroactive use of an ICC rule amended by the ASP in 2012 to allow the use of pre-recorded witness testimony in its proceedings. An appeal against the retroactive use of Rule 68 by the ICC prosecutor in the ongoing trial of Deputy Kenyan President William Ruto and broadcaster Joshua Sang is currently pending before the ICC Appeals Chamber. It remains for ICC appeals judges to decide on the application of Rule 68.