MOON-Ki, Please Dissect For Laymen

[Kim Jong-Un's Pajama Pants]

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The ruling on recanted evidence.  Kizungu mingi.

https://www.icc-cpi.int/iccdocs/doc/doc2199652.pdf

[RV Pundit]

The short: This is the end game for Bensauda. It is over for her as far as Ruto & Sang goes.

[RV Pundit]

The long: The appeals chamber totally rejected the recanted evidence on first ground that it would be detrimental to Ruto-Sang; and did not even see the need to go into details. So all that recanted evidence will be removed and Bensauda limping case will come a gropper.

[MOON Ki]

Terminator:

I find puzzling all the excitement over this decision.  What I found most interesting were the pointed messages to the AU, politicians, and others who have been keen to interfere with judicial processes.   To the extent that you are interested in anything else, I suggest you skip its details and consider the mere fact that it's been made and the implications as to what is coming next.   For that, you should look at the OTP's original application to get the testimony in.   The OTP asked for the application on Rule 68 or, in the alternative, Article 69 of the Rome Statute; the Trial Chamber went with the former.  The OTP will now go back---and very soon, I believe---to ask that the evidence to come in via the latter.

Article 69 allows the judges to admit into evidence anything they think will help uncover the truth.     In this case, although the judges in the Trial Chamber disagreed on the initial ruling, they all agreed that the evidence should go in on that basis.   So it will go in, unaffected by this Appeals-Chamber decision; what's more, the Appeals Chamber will be very reluctant to interfere with  an Article 69 decision.

[Kim Jong-Un's Pajama Pants]

Terminator:

I find puzzling all the excitement over this decision.  What I found most interesting were the pointed messages to the AU, politicians, and others who have been keen to interfere with judicial processes.   To the extent that you are interested in anything else, I suggest you skip its details and consider the mere fact that it's been made and the implications as to what is coming next.   For that, you should look at the OTP's original application to get the testimony in.   The OTP asked for the application on Rule 68 or, in the alternative, Article 69 of the Rome Statute; the Trial Chamber went with the former.  The OTP will now go back---and very soon, I believe---to ask that the evidence to come in via the latter.

Article 69 allows the judges to admit into evidence anything they think will help uncover the truth.     In this case, although the judges in the Trial Chamber disagreed on the initial ruling, they all agreed that the evidence should go in on that basis.   So it will go in, unaffected by this Appeals-Chamber decision; what's more, the Appeals Chamber will be very reluctant to interfere with  an Article 69 decision.

Thanks for the explanation.  The excitement is informed by the same knowledge/ignorance that saw spasms of joy and celebrations following the ASP victory.  To be fair, some of these ICC documents are pretty complicated, I bet even for some lawyers.

I did suspect Article 69 as a potential fall back but wasn't sure; the most some of us can do with these things is just scan the documents real quick and then fill in the gaps based on our hunches, persuasions and biases.

[Kim Jong-Un's Pajama Pants]

The long: The appeals chamber totally rejected the recanted evidence on first ground that it would be detrimental to Ruto-Sang; and did not even see the need to go into details. So all that recanted evidence will be removed and Bensauda limping case will come a gropper.

It is rejected as far as Rule 68 is concerned.  I agree the judges believe it was applied retroactively and that it is prejudicial to the accused.  I think it can still be admitted through Article 69 of Rome Statute.

@MOON-Ki,

Why did Fatou Bensouda not just rely entirely on Article 69 in her prayers?

[RV Pundit]

Hehehe, look like groping in the dark, in a matter that is as clear as day and night. Both article 68 and 69 were rejected. As long as any such evidence is detrimental to the accused, it cannot be allowed. Only evidence that are not detrimental....those with both sides don't have issues with..can be introduced. OTP had asked the appeals chambers to consider admitting the evidence based on article 69 if article 68 was defective..and it was rejected.

Terminator:

I find puzzling all the excitement over this decision.  What I found most interesting were the pointed messages to the AU, politicians, and others who have been keen to interfere with judicial processes.   To the extent that you are interested in anything else, I suggest you skip its details and consider the mere fact that it's been made and the implications as to what is coming next.   For that, you should look at the OTP's original application to get the testimony in.   The OTP asked for the application on Rule 68 or, in the alternative, Article 69 of the Rome Statute; the Trial Chamber went with the former.  The OTP will now go back---and very soon, I believe---to ask that the evidence to come in via the latter.

Article 69 allows the judges to admit into evidence anything they think will help uncover the truth.     In this case, although the judges in the Trial Chamber disagreed on the initial ruling, they all agreed that the evidence should go in on that basis.   So it will go in, unaffected by this Appeals-Chamber decision; what's more, the Appeals Chamber will be very reluctant to interfere with  an Article 69 decision.

[RV Pundit]

recourse  to  article  69  (2)  and  (4)  of  the  Statute  is  not
permissible.

[Kim Jong-Un's Pajama Pants]

Pundit,

The Article I have in mind is 69(3). 

About evidence detrimental to the accused.  My understanding is this is not an issue except when a rule or procedure is applied retroactively.  In other words Rule 68 wont apply to this case because it came in force after the case started.  And it is detrimental to the accused.

Article 69(3) would also be detrimental.  But it is not retroactive as far as this particular case is concerned.

[RV Pundit]

How does 69(3) help in admission of recanted evidence. 69(3) is for admission of any evidence. As long as it not recanted or detrimental. Prosecution has  closed their cases and the contention here is simple..without recanted evidence..OTP are runniing on empty.

Pundit,

The Article I have in mind is 69(3). 

About evidence detrimental to the accused.  My understanding is this is not an issue except when a rule or procedure is applied retroactively.  In other words Rule 68 wont apply to this case because it came in force after the case started.  And it is detrimental to the accused.

Article 69(3) would also be detrimental.  But it is not retroactive as far as this particular case is concerned.

[Kim Jong-Un's Pajama Pants]

How does 69(3) help in admission of recanted evidence. 69(3) is for admission of any evidence. As long as it not recanted or detrimental. Prosecution has  closed their cases and the contention here is simple..without recanted evidence..OTP are runniing on empty.

Pundit,

The Article I have in mind is 69(3). 

About evidence detrimental to the accused.  My understanding is this is not an issue except when a rule or procedure is applied retroactively.  In other words Rule 68 wont apply to this case because it came in force after the case started.  And it is detrimental to the accused.

Article 69(3) would also be detrimental.  But it is not retroactive as far as this particular case is concerned.

Just based on the plain reading.  I recall Osuji explaining it in his separate opinion.  I'll share when I get a chance.

The long and short of it?  While there is a Rule against admission of recanted evidence, for this case, the Article prevails if there is a contradiction.

[RV Pundit]

Yes you're correct, just re-read Osuji and the majority rulling. Osuji seem to think 69(3) is a catch all for everything. Apparently he thinks article 69(3) is not even bound to the rules and procedures of evidences!!!. The other judges didn't go much into 69(3) but seem appreciate it cannot be read alone...without other articles and of course the rules & procedures of evidences.

If chamber were to buy Osuji idea that 69(3) is catch-all for judges to admit ANYTHING in the interest of justice then this is once again headed to the court of appeal.

Just based on the plain reading.  I recall Osuji explaining it in his separate opinion.  I'll share when I get a chance.

The long and short of it?  While there is a Rule against admission of recanted evidence, for this case, the Article prevails if there is a contradiction.

[MOON Ki]

Yes you're correct, just re-read Osuji and the majority rulling. Osuji seem to think 69(3) is a catch all for everything. Apparently he thinks article 69(3) is not even bound to the rules and procedures of evidences!!!. The other judges didn't go much into 69(3) but seem appreciate it cannot be read alone...without other articles and of course the rules & procedures of evidences.

Conflicts between the rules and the statute do happen, and they are always settled according to Article 51(5) of the statute:

5. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.

If chamber were to buy Osuji idea that 69(3) is catch-all for judges to admit ANYTHING in the interest of justice then this is once again headed to the court of appeal.

That's not going to help much.  The Appeals Chamber has already had the chance to  take a couple of looks at the use of Article 69(3).   What they had to say in the Lubanga case indicates that an appeal at this stage (i.e. before the final verdict) would go nowhere.

[MOON Ki]

[@MOON-Ki,

Why did Fatou Bensouda not just rely entirely on Article 69 in her prayers?

Because of its discretionary nature---the judges may say "no" to an article 69(3) without even giving a reason---it would have been risky without knowing which way the judges would go.

[MOON Ki]

Hehehe, look like groping in the dark, in a matter that is as clear as day and night.

Desperation galore...

I wouldn't say that.

[RV Pundit]

As of now the majority in trial chamber do not think 69(3) applies. Only Osuji think so. So as of now that evidence is not admittable as directed by Appeals chamber. The judges I guess will use the no case to answer to close or re-open this issues...and then we have another round of appeals.

Because of its discretionary nature---the judges may say "no" to an article 69(3) without even giving a reason---it would have been risky without knowing which way the judges would go.

[MOON Ki]

As of now the majority in trial chamber do not think 69(3) applies. Only Osuji think so.

Where did you get that one?   Looking at the decision of the majority, here is what they say:

128.The Chamber considers that the admission of the prior recorded testimony of
[REDACTED] pursuant to Rule 68(2)(d) of the Rules is in the interests of justice.
Pursuant to Article 69(3) of the Statute, the Chamber may take into account all
evidence it considers necessary for the determination of the truth.

So as of now that evidence is not admittable as directed by Appeals chamber.

That much is not in dispute.   As I indicated above, the expectation is that the OTP will now go back, drop any references to Rule 68,  and make an Article-69(3)-only request.    The attitudes of all 3 judges suggests a strong likelihood that such a request will succeed.

[RV Pundit]

And what are OTP waiting for; coz in their opinion without the r68 evidence they are bound to lose the no-case to answer. This would be the time for OTP to refile the request under 69(3) --which I think CANNOT be read alone without other parts of stature and the rules & procedures of evidence.

That much is not in dispute.   As I indicated above, the expectation is that the OTP will now go back, drop any references to Rule 68,  and make an Article-69(3)-only request.    The attitudes of all 3 judges suggests a strong likelihood that such a request will succeed.