What does this mean??

[Georgesoros]

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Happy thanksgiving to all of those in USA.

Back to ICC, what does this mean for those closely following it.

[Kim Jong-Un's Pajama Pants]

Happy Thanksgiving Parkerpen.  I think ICC remains just the same.

[Pajero]

There was no resolution passed by the ASP on Rule 68. Is is being misreported to save face and make it seem like a "victory". The ASP president only agreed to include Kenya's "language" in his final report. No legally binding decision was passed and over 50 states distanced themselves from it. Status quo remains, as it was before. The Court will have the final say.

[Kim Jong-Un's Pajama Pants]

There was no resolution passed by the ASP on Rule 68. Is is being misreported to save face and make it seem like a "victory". The ASP president only agreed to include Kenya's "language" in his final report. No legally binding decision was passed and over 50 states distanced themselves from it. Status quo remains, as it was before. The Court will have the final say.

The noise over Rule 68 is a lot of ado over nothing.  Even if the rule were to be worded The hustler and the dwarf cannot be affected by this rule and be legally binding, it can still be voided by article 69(3) of the Rome Statute.  Chile Ossuji points this out, for anyone who cares to read the decision.

If a rule differs with the statute itself, then it is legally moot.  I think MOON Ki already pointed this out. 

Should a jubilant be able to grasp this simple concept?  I often find myself believing they should.

[Real P]

I don't understand all the hullabaloo or wild uproar (tumult) over two individuals that had nothing to do with stolen election. Odinga and Kibaki should be facing the judges in Hague and not Mbilikimo or Ruto

[MOON Ki]

If a rule differs with the statute itself, then it is legally moot.  I think MOON Ki already pointed this out. 

Here, there is more than that, and it appears that many GoK types and supporters read Rule 68 without reading other relevant material on amendments and the actual decision from the trial chamber. 

For a start, the ASP statement is not in a resolution---it falls under "policy"---and is therefore not binding on the court, regardless of issues to do with conflicts between rules and statutes (which you correctly note).   Second, the "victory" is not what is claimed, for the following reasons.

What the ASP has said is that it reaffirms its understanding on the non-retroactive use of Rule 68.   GoK claims as a victory.

The ASP carefully did not explicitly state what its "understanding" is, but rule amendments are governed by Article 51, of which part 4 states that:

Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted ...

https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf

The court therefore had to consider non-retroactivity; and it did, contrary to the impression given by GoK types.

What GoK wanted has two parts (blue and red):

This 14th Assembly decides and clarifies that rule 68 as amended by the 12th session of the Assembly of State Parties (by resolution ICC-ASP/12/Res.7) has no retroactive applicability and cannot apply to situations commenced before the 27th November 2013

https://www.icc-cpi.int/iccdocs/asp_docs/ASP14/ICC-ASP-14-33-Add2-ENG.pdf

The ASP stated that it "reaffirmed its understanding" on blue, but did not say anything on red.   

The real issue, however, is that the court already considered non-retroactivity of the rule.   The OTP argued that, in the legal sense, its application did not involve retroactive use.   The argument is a bit long, but briefly:

25. Here, however, the application of the amendments to rule 68 to the present case is not dependent on "past occurrences or events", nor does it abrogate any preexisting rights or duties ... Therefore, the rule against retroactivity is not engaged.

https://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/icc01090111/court%20records/filing%20of%20the%20participants/office%20of%20the%20prosecutor/Pages/1866.aspx

The judges agreed with that:

23. Turning to Article 51(4) of the Statute, the Chamber does not consider the relief sought to be a retroactive application of the amended Rule 68. The Prosecution's Request is not seeking to alter anything which the Defence has previously been granted or been entitled to as a matter of right.

https://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/icc01090111/court%20records/chambers/tcVa/Pages/1938.aspx

So the real issue before the Appeals Chamber is not, as some think, whether the rule can be used retroactively; it is whether it has been used retroactively.  The ASP statement obviously has no effect on that question, and it is still the Appeals Chamber's understanding that really matters.   After that comes Osuji's Article 69 point.

The other part of the GoK request was that the ASP:

Decides to appoint an ad hoc independent mechanism of 5 independent jurists to audit the Prosecutors' witness identification and recruitment processes in the case of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Case Number ICC- 01/09-01/11, and establish and determine the veracity of allegations of irregular procuring and coaching of witnesses In the case.

Decides further that the ad hoc mechanism shall report to the Assembly within 6 months of its establishment.

That was completely rejected.   Instead, the ASP gave a vague statement that the Independent Oversight Mechanism should be fully implemented.

[Kim Jong-Un's Pajama Pants]

@MOON Ki,

Thanks for the clarification.  I had a rather amateurish understanding of the whole thing.  To be fair, nobody should expect a typical jubilant to understand all this.

On the question of detriment to the accused.  How do the judges determine that?  Can incriminating evidence be considered detrimental to the rights of the accused?

[MOON Ki]

Thanks for the clarification.  I had a rather amateurish understanding of the whole thing.  To be fair, nobody should expect a typical jubilant to understand all this.

Your understanding is correct, and no doubt it is one factor that the Appeals Chamber will consider.   I was only adding to that by noting that there are other significant issues whose implication is that GoK and supporters have not got much from a statement on non-retroactivity.

On the question of detriment to the accused.  How do the judges determine that?  Can incriminating evidence be considered detrimental to the rights of the accused?

In the ordinary sense of the world, as in "not helpful", one could say that; indeed it cannot be expected that evidence that is being admitted because the accused has finished, bribed, or intimidated witnesses will be helpful to the accused.

In the legal sense, the OTP argued that [lengthy details omitted]: :

29. In the present case, the application of the amended rule would not be to the detriment of the Accused, for the following reasons:

a. The Accused have been on notice of the evidence contained in the statements.

b. The amended rule is of equal application to the Prosecution and the Defence.

c. Even prior to the amendment, the admission of the statements was possible under other provisions of the Statute/Rules.

d. The amended rule 68 enshrines safeguards of equivalent, if not greater, value, as compared to the pre-existing legal framework.

e. The rights of the Accused have not been curtailed. 

f. In the case of witness interference, the admission of prior recorded testimony of witnesses can never cause detriment.

The Trial Chamber agreed:

24 ... The application of Rule 68 cannot be considered detrimental to the accused simply because it allows the Prosecution to request the admission of incriminatory evidence against the accused.
...
25. The amended Rule 68 is a rule of neutral application - it is an admissibility rule that can be equally taken advantage of by all parties to the proceedings before the Court. Its application is not inherently detrimental to the accused.
...

[Kim Jong-Un's Pajama Pants]

http://allafrica.com/stories/201511271454.html

In the link above, the jubilant celebrates victory in the rule 68 saga.  Kindiki and Murkomen are both lawyers.  Murkomen taught law at Moi University. 

These two would enjoy pride of place as some of the better informed jubilants.  Even if one wants badly to believe otherwise.

It means they spent ten days arguing the issue without as much as understanding it.  In front of the world.

[MOON Ki]

http://allafrica.com/stories/201511271454.html

In the link above, the jubilant celebrates victory in the rule 68 saga.  Kindiki and Murkomen are both lawyers.  Murkomen taught law at Moi University. 

These two would enjoy pride of place as some of the better informed jubilants.  Even if one wants badly to believe otherwise.

It means they spent ten days arguing the issue without as much as understanding it.  In front of the world.

Kenyans have tendency to lose their thinking capacity when they join politics and start eating.

Going back to a point you made earlier, I believe the evidence will end up coming in under Article 69(3).   There are reasons other than retroactivity issues that could justify a Defence win (even if only partial); but Osuji has some strong opinions about respect for the court and its independence, and, I believe he will push for 69(3).