States parties approved to insert Kenya’s requested language on the non-retroactive use of amended Rule 68 on using pre-recorded witnesses testimony in the Assembly’s final report.
States did not include the language in the catch-all “omnibus resolution” on strengthening the ICC and ASP. The insertion of the requested Kenyan language in the final report holds no obligations for states or the ICC.
Kenya had requested that the Assembly “affirm” that the rule cannot be applied retroactively to ICC investigations begun before the 12th session of the ASP (when the rule came into force).
This retroactive use of rule 68 is currently before the ICC Appeals Chamber after the prosecutor used this new rule to introduce pre-recorded witness testimony in the ongoing trial of Kenyan Deputy President William Ruto and broadcaster Joshua Sang for allegedly orchestrating crimes against humanity during Kenya’s 2010-11 post-election violence.
It remains for ICC appeals judges to decide on the application of Rule 68.
#ASP14: Omnibus resolution is finally adopted after lengthy diplomatic negotiations – Kenya’s proposed paragraphs withdrawn. — Alice Banens (@AliceBanens) November 26, 2015
#Rule68 has not been suspended; will be up to #ICC judges to decide whether it can be applied, in manner consistent with Rome Statute #ASP14 — Liz Evenson (@liz_evenson) November 26, 2015
So that’s settled. No #Kenya language in Omnibus resolution. Likely language on retroactivity in #ASP14 report. Report not legally binding.
— Niklas Jakobsson (@Nik_Jakobsson) November 26, 2015
Adopted from CICC
Our faith in ICC will be reinforced if the affirmation receives judicial imprimatur in Court #twitter— AMB:Amina Mohamed (@AMB_A_Mohammed) November 27, 2015
