Wasn't there some amendment that went along with attendance excusals for Uhuru and Ruto? What I wasn't aware of is it retroactively affecting cases already in progress. However if Kenya was blinded by the need to have the excusal apply to Uhuru, then Bensouda squeezed this one in the same chink.
Yes, after Kenya's mischief, the Assembly of States parties decided that something had to be done to stop cases of people finishing or bribing witness. So at the 2013 session they amended Rule 68 (
Rules of Procedure and Evidence) to cover such cases. (The rule before the amendment did allow the admission of prior recorded testimony; they just modified it.)
On the other hand, Article 51 of the
Rome Statute has always stated that amendments to the Rules cannot be applied retroactively to the detriment of the accused. Nevertheless, the OTP is arguing that there is nothing here that is retroactive or detrimental to the accused; the argument seems to be a bit of a stretch, and it will probably be tough to make it fly.
Other things:
* The job in a typical court is basically to determine whether or not the accused did it. The ICC is different, in that judges also have a mandate to "uncover the truth".
In a typical court, if the accused jumps up and says "
Yes, I did it! And I would do it again! So there!", that would be the end of the trial phase. At the ICC, the judges can still order that the trial go ahead if that would help uncover the truth. So it is possible to imagine the judges letting in the evidence, to uncover the truth, even if it is not directly used against Ruto. At the end of the day, they could, for example, write a decision that says "there is strong evidence to say he did it, but not enough to convict him".
* The fact that prior testimony is admitted without the witnesses being tested on particular points on the stand does not necessarily mean that its worth cannot be determined. Consider, for example, a case where four witnesses all say that "X did Y on date Z". Three of those are tested in court, and their statements are verified, but the fourth now says he made it all up and recants. One does not then conclude that the fourth statement is all junk.
* A third point to keep in mind is that several of these recanting witnesses were questioned (via video-link), and the judges have no doubt formed an opinion on their recanting and sudden losses of memory. What that opinion might be is unknown.
It's hard to guess which way the judges will rule. But it seems fairly clear that even if the prior testimonies are admitted---and the Defence has a strong case against their admission---it will be difficult very to use much of it to damage Ruto. The OTP surely knows that, so perhaps they have other reasons for this tactic.
If I were a betting man, I'd go with a 51% chance of the evidence going on.
Topic: This going to be problematic for the ICC Judges. (Read 4194 times)