ASP resolution on Rule 68 irrelevant, Bensouda says

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Bensouda-angryICC Chief Prosecutor Fatou Bensouda has described as “irrelevant” a recent Assembly of State Parties (ASP) resolution reaffirming amendments on Rule 68 of the court’s rules of procedure and evidence.

In a statement which could spark a fresh round of diplomatic and political fireworks, Ms Bensouda asked the ICC judges considering an appeal on use of the amended rule in the Kenyan cases to ignore the resolution.

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Joshua Sang, one of the accused, had written to the judges on December 17, last year alerting them of the resolution reached at the 14th session of the ASP between November 18 and 26, last year at The Hague. He wanted the resolution placed into the appeals record and considered by judges on the basis of its relevancy to the matter under appeal.

“Mr Sang does not identify the procedural basis for adding the ASP statement to the appeal record nor does he substantiate its relevance to the appeal. The Prosecutor submits that this ASP statement is irrelevant, and should not be added to the appeals record,” Bensouda claims in her response dated January 4, but released to the public this week.

The prosecutor says, however, the appeals chamber is of the view that the relevance of the ASP statement requires further analysis and judges should order Sang to substantiate the procedural and legal bases for its addition to the record. She also wants to be allowed to offer responses if the matter goes to that level.

The resolution, tabled alongside the full report of the ASP meeting by Sang, restated that the amended rule would not be applied retroactively:

“The Assembly recalled resolution ICC-ASP/12/Res.7, dated November 27th, 2013, which amended rule 68 of the Rules of Procedure & Evidence, which entered into force on the above date, and consistent with the Rome Statute reaffirmed its understanding that amended rule 68 shall not be applied retroactively.”

Sang claimed the resolution is relevant to the issue under appeal as it relates to the matter of interpretation of the amended rule. Sang and his co-accused William Ruto filed the appeal on the use of the Rule in early October last year.

“Mr Sang respectfully places the ASP resolution into the record of the present appeal for consideration by the Appeals Chamber when assessing his appeal,” lawyer Katwa Kigen for Sang said in the notice.

The full report of the 14th ASP tabled by Kigen also includes a statement issued by Kenya in which it expressed hopes that the court would recognise and implement the “new understanding” of Rule 68 arrived at the ASP.

Kenya was at the forefront of pushing the agenda of revisiting Rule 68 at the ASP following its application by the court. She successfully lobbied for discussion but the final outcome did not succinctly capture what the country had originally wanted.

“We shall be alive and alert to everything that will happen in respect of this resolution. Indeed, it will be a test of whether our voices have been listened to or not,” Foreign affairs Cabinet Secretary Amina Mohamed told the assembly at its closure.

In the statement, Ms Mohamed also claimed that the understanding arrived at was “unambiguous” in terms of the temporal scope of the application of rule 68, and that it does not apply retroactively to the cases that had commenced before November 2013, including the Kenyan ones.

She said the court should reinforce Kenya’s faith in Rome Statute by granting the ASP resolution judicial recognition and action.

“Given that the question of trust has been a major stumbling block to negotiation at this Assembly, it is our hope that the new understanding arrived at on rule 68’s non retroactivity will constitute the leitmotif in the rebuilding of this trust,” she said.

Other countries like Switzerland, Austria and Liechtenstein did not appear impressed by the resolution. In their statement annexed to the report tabled before the judges, the three countries issued a statement in which they expressed “serious concerns” on both “substance and process” of the ASP negotiations.

“The Assembly’s role is to provide strategic oversight and support to the Court, not to get involved in matters that pertain to the Prosecution or the Judiciary. Rather, the Assembly must preserve the integrity of the Statute and fully respect the Court and its independence,” the statement said.

On the process, the three countries said the ASP ought to listen to all voices of states, observers, civil society and the court.

They also complained about appointment of representatives of “geographical groups” to discuss matters of substance.

Canada also issued a statement on behalf of 34 member states in which it restated that the ICC is an independent judicial body “and as such must be free from political interference.” Ruling on the appeal filed in October last year may be out soon.

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