ICC appeals judges will rule this Friday on whether the recanted testimony of several prosecution witnesses will be accepted as evidence in the trial of Kenyan Deputy President William Ruto and Joshua Sang. Defense lawyers have challenged the prosecutor’s attempt to use a rule to admit prior recorded testimony, arguing that the rule cannot be applied retroactively to trials that had begun before it was adopted in 2013.
Defense challenges use of recanted testimony
Ruto and Sang are accused of orchestrating crimes against humanity in Kenya’s 2007-08 post-election violence. The trial began in September 2013, but several prosecution witnesses have recanted their testimony. The ICC prosecutor alleged they were intimidated to withdraw and sought to have their original testimonies accepted as evidence. In 2015, trial judges agreed to the prosecutor’s request to use an amendment to Rule 68 of the ICC’s Rule of Procedure and Evidence to present pre-recorded witness testimony in the trial. Both Ruto and Sang challenged this decision, stating that the ICC’s governing body, the Assembly of States Parties (ASP), had explicitly decided when amending Rule 68 in November 2013 that it could not be used in (then) ongoing cases. The Appeals Chamber will this week rule on their interpretation of Rule 68.
Read more from the International Federation for Human Rights in this interactive timeline: Understanding Rule 68 Controversy through 15 Dates
Rule 68 explained
In November 2013, ICC member states agreed to allow for the admission of prior recorded testimony—as opposed to testimonies from witnesses present in the courtroom, be it in person or through a video-link— in the Court’s proceedings by amending Rule 68 of the ICC’s Rules and Procedures of Evidence.
Allowing such testimony can speed-up proceedings when, for instance, witnesses are unavailable. But it can also be used to protect against witness intimidation and the viability of cases brought by the prosecution. If witnesses are threatened into changing their story, as has been alleged by ICC prosecutor in the Ruto/Sang case, prior recorded testimony could still be used as evidence.
Kenya’s campaign to influence judicial decision making
Outside the courtroom, the Kenya government engaged in a political campaign at the November 2015 Asssembly of States Parties session to have governments explicitly state that when the Assembly amended Rule 68 it was not to apply to ongoing cases. All this while the defense appeal on Rule 68 was pending before the judges.
Using unfounded accusations of an anti-Africa bias at the ICC and threats to withdraw from the Rome Statute, the Kenyan government sought to gain concessions from the Assembly to put pressure on the decision-making of independent ICC judges.
As last year’s ASP was beginning, governments agreed at the last minute to debate a request by Kenya to have the Assembly affirm that when it amended Rule 68, the amendment was not meant to be used in ongoing cases. Following the debate, negotiations continued throughout the eight days of the Assembly session on whether to include the Kenyan proposal in the catch-all omnibus resolution that provides guidance on strengthening the ICC and ASP.
Civil society organizations had called on governments to reject the Kenyan request, saying it would infringe on the ICC’s judicial independence. After the debate, states were urged to ensure that there would be no reference to the interpretation of the amended Rule 68 in any of the formal resolutions adopted at the end of the Assembly, on the basis that doing so would amount to political interference in a matter being litigated in an ongoing ICC trial.
After difficult negotiations and much pressure from the Kenyan government, the Assembly included in its final report language “affirming” the non-retroactive use of Rule 68. The inclusion of the requested Kenyan language in the final report holds no obligations for states or the ICC. But the efforts to influence an ongoing trial set a dangerous precedent for the ICC’s ability to deliver fair and independent justice.
Independent judges to decide
Despite attempts by the Kenyan government to use its political power to try to influence the trial and erode the independence of the ICC, it is the five independent appeals judges who will rule on the law to be applied by this independent Court.
The situation in Kenya is the ICC’s fifth investigation. In March 2010, Pre-Trial Chamber II authorized the ICC prosecutor to open an investigation into crimes against humanity allegedly committed in Kenya in relation to violence that followed Kenya’s 2007 presidential election, which killed over 1,200 and displaced 600,000. This was the first time that the prosecutor used propriu motu powers to initiate an investigation without first having received a referral from a state party or the United Nations Security Council.
The ICC was invited by an independent commission to investigate in Kenya after the country’s lawmakers failed on three occasions to agree to set up a national mechanism to establish responsibility for alleged crimes against humanity during Kenya’s 2007-08 post-election violence. Pre-trial judges rejected a Kenyan government challenge to the admissibility of the Ruto/Sang case in May 2011, finding that there were no ongoing domestic proceedings in respect of the suspects. The Appeals Chamber confirmed this decision in August 2011.
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