When the International Criminal Court’s member countries gathered in November 2015 for their annual meeting, both Kenya and South Africa raised issues about developments at the ICC over the previous year that affected their countries.

Kenya raised an issue relating to the trial of its deputy president, William Ruto, and a co-defendant, Joshua arap Sang, which is in progress before the court. Kenya contended that a change in rules that allowed the introduction of recorded testimony should not apply because the case began before the rules were changed.

South Africa sought clarification of rules related to the visits of fugitives to member countries after President Omar al-Bashir of Sudan went to South Africa without arrest to attend an African Union summit. Bashir is wanted under ICC arrest warrants on charges of genocide, war crimes, and crimes against humanity committed in Darfur.   

  1. Developments at the annual ICC meeting regarding the Kenya situation

 

  1. What action did Kenya’s government seek at the annual Assembly of States Parties meeting in November 2015 regarding Rule 68?

Kenya petitioned the annual meeting of ICC member countries—known collectively as the Assembly of States Parties—to confirm that when the ICC’s Rules of Procedure and Evidence were amended in 2013, states parties had agreed that the amendments to Rule 68 regarding the use of prior recorded testimony should not apply to the cases arising out of the Kenya situation. The government contended this was necessary to avoid purported “retroactivity,” given that the cases began before the amendments were adopted.

The government asked for the clarification since prior recorded testimony had been accepted by the trial chamber in the Ruto and Sang case since the rule was changed. The government sought a debate on this issue and proposed language for the Assembly to adopt confirming this understanding. The Assembly agreed to debate the issue.

  1. What is Rule 68? How has it been used in the Ruto and Sang case?

Rule 68 allows the use of prior recorded testimony, for example the written statements or transcripts of recorded interviews with witnesses, in addition to or instead of testimony in court.

The Assembly of States Parties amended the rule in 2013 to increase circumstances under which such testimony can be used. The amended rule permits the admission of prior recorded testimony if the person has since died, is presumed dead, or “due to obstacles that cannot be overcome with reasonable diligence, [is] unavailable to testify orally.” It also permits the use of prior recorded testimony if there has been interference with the witness, such as bribery or intimidation.

In the Ruto and Sang case, the court has used the amended Rule 68 to accept into evidence the prior testimony of five witnesses. Four had appeared in court, but recanted testimony on the stand. The judges were satisfied that there had been interference with the witnesses. The fifth witness has disappeared.

  1. What is known about witness interference in the Ruto and Sang case?

There are outstanding ICC arrest warrants, issued in 2013 and 2015, against three Kenyans, on charges of witness tampering in the case against Ruto and Sang. The trial chamber has noted an “element of systematicity of the interference of several witnesses in this case which gives rise to the impression of an attempt to methodically target witnesses of this case in order to hamper the proceedings.” The prosecution claims that at least 16 witnesses stopped cooperating and refused to testify, most frequently citing threats, intimidation, or fear of reprisal. Social media and blogs have also been used to expose the identities of purported ICC witnesses.

In addition, a person the Ruto ICC defense team had said it would call as its witness was murdered in early 2015. Investigations into his death have yet to yield public results.

  1. What did the Ruto and Sang trial chamber say about the “retroactive” application of Rule 68?

Article 51(4) of the ICC treaty, the Rome Statute, prohibits applying Rule amendments “retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted.”

The Ruto and Sang trial chamber found, however, that applying the amended Rule 68 would not be retroactive as it was being applied in a forward-looking manner to admit items into evidence. It also held that even if it could be considered a retroactive application, it would not be to the detriment of the defendants because the rule is neutral on its face, and could be used by all parties to the proceedings.

  1. Will this “retroactivity” issue be considered by the ICC appeals chamber?

Yes, the defense was given leave to appeal the trial chamber’s use of Rule 68, and a decision from the appeals chamber is pending. Whether Rule 68 can be applied in this case in a manner consistent with Rome Statute article 51(4) and article 24(2)—another provision dealing with retroactivity—is one of the issues on appeal.

The appeals chamber has accepted, as potentially relevant to this issue, a “friend of the court” brief by the African Union that aims to “plac[e] before the Court all relevant material arising out of the negotiations of [R]ule 68 of the [Rules of Procedure and Evidence] during the Twelfth Session of the [ASP] […] in November 2013.”

  1. What was so problematic about what Kenya sought regarding Rule 68 at the Assembly of States Parties?

Kenya’s requests amounted to an invitation to interfere with or put pressure on ongoing judicial deliberations since the issue of whether Rule 68 can be applied in a manner consistent with the Rome Statute is already pending before the appeals chamber. The trial chamber, in its decision, considered arguments about the amendments’ legislative history. It is up to the judges to protect their own independence, but efforts to litigate judicial decisions before the Assembly are incompatible with full respect for that independence.

  1. What happened during the debate by the Assembly about Kenya’s requests, and will the outcome of the meeting have an impact on the Ruto and Sang case?

During the debate, only one country—Uganda—appeared to support Kenya’s understanding that Rule 68 was not applicable to the Kenya situation. Statements by other member countries primarily emphasized the court’s independence and the importance of refraining from interference with its judicial decision-making.

Following negotiations, member countries agreed to include the following language in the report of the Assembly’s proceedings: “Following the debate…the Assembly recalled its resolution ICC-ASP/12/Res.7, dated 27 November 2013, which amended rule 68 of the Rules of Procedure and Evidence, which entered into force on the above date, and consistent with the Rome Statute reaffirmed its understanding that the amended rule 68 shall not be applied retroactively.

It is important to note that this language does not change the fact that a decision about the use of Rule 68 in the Ruto and Sang case remains with the appeals chamber. The Sang defense asked to place the report of the Assembly proceedings before the appeals chamber, but it is unclear whether the report will be considered by the appeals chamber.

  1. Developments at the annual ICC meeting regarding South Africa

 

  1. What happened at the ICC’s recent Assembly of States Parties session regarding South Africa?

Ahead of the November session, South Africa sought to have an item added to the assembly’s agenda, which appeared to relate to the visit by President Omar al-Bashir, who is under an ICC warrant, to South Africa on June 13 through 15, 2015, without arrest.

Specifically, South Africa asked to add an agenda on the application and implementation of Articles 97 and Article 98 of the Rome Statute. Article 97 relates to consultations by an ICC member with the ICC if a country identifies problems in complying with a request for cooperation (such as arrest). Article 98 addresses countries’ pre-existing obligations when they are inconsistent with ICC requests for cooperation.

South Africa’s request led to a debate at the session and the following language in the session’s report: Following the plenary debate…States Parties expressed their willingness to consider, within the framework of the appropriate subsidiary body of the Assembly, proposals to develop procedures for the implementation of Article 97.

The final report of the session also discussed the relationship between Article 27, which provides that an individual’s official position is not relevant before the court, and Article 98: The report concluded that interested parties could refer this issue to the assembly’s bureau for further consideration.

  1. What happened when al-Bashir visited South Africa in June to attend an African Union summit?

On June 13, 2015, the ICC judges issued an order clarifying that South Africa was obligated to arrest al-Bashir and that any immunity he had as a sitting head of state had been implicitly waived as a result of the UN Security Council’s referral of the Darfur situation to the ICC.

On June 14, South Africa’s High Court issued an interim order that al-Bashir should not be permitted to leave South Africa absent further proceedings. On June 15, South Africa’s High Court issued an order that South Africa was obligated to arrest al-Bashir. The court found that al-Bashir was not immune from arrest and that AU decisions that member countries should not cooperate in al-Bashir’s arrest could not trump South Africa’s obligation to cooperate with the ICC.

But by the time of the June 15 order, al-Bashir had left the country.

In October, the General Council of South Africa’s ruling party, the African National Congress, issued a resolution as part of its annual meeting calling for South Africa “to begin the process of withdrawal of its membership of the ICC, preceded by the discussions that are taking place among the member states of the ICC and those taking place within the African Union on the ICC matter.”

  1. What is the status of litigation at the ICC and in South Africa’s domestic courts regarding al-Bashir’s visit without arrest?

The South African government has sought the opportunity to appeal South Africa’s High Court ruling that South Africa was obligated to arrest al-Bashir. The High Court denied the request, but South Africa’s Supreme Court of Appeal is considering the request. A hearing on the request with South Africa’s Supreme Court of Appeal is scheduled for February 13.

In September, the ICC began proceedings on South Africa’s possible non-cooperation with the ICC in allowing al-Bashir to visit without arrest. This may or may not lead to the ICC judges issuing a finding of non-cooperation with the court by South Africa. In October, the ICC had granted South Africa an extension to submit views on the issue while domestic litigation was pending.

  1. Africa’s overall relationship with the ICC

 

  1. Is the ICC targeting Africa, as some African leaders claim?

Since it began operations in 2003, the ICC’s investigations have concerned eight African countries. However, in five out of the eight countries where the ICC is conducting investigations – Central African Republic, Côte d’Ivoire, Democratic Republic of Congo, Mali, and Uganda – the investigations arose through a request or a grant of jurisdiction by the concerned governments. In two other countries – Darfur, Sudan; and Libya – the ICC prosecutor acted only following a referral by the UN Security Council. In Kenya, the Office of the Prosecutor received the authorization of an ICC pre-trial chamber to open investigations.

  1. Is there unevenness in international justice?

While the ICC is not targeting Africans, international justice has been applied unevenly. Powerful countries and their allies have been able to evade the reach of justice when serious crimes are committed on their territories. This is due at least partly to the role of the UN Security Council in determining which situations to refer to the ICC when serious crimes are committed in countries that are not ICC members and to the fact that some states have not joined the ICC. Human Rights Watch campaigns for justice wherever serious crimes are committed and for justice to advance irrespective of political considerations. Independent organizations and activists across Africa have called for African leaders to work to support the ICC, and not to undermine it.

The ICC is conducting preliminary examinations in multiple situations outside of Africa, including Palestine, Colombia, and Afghanistan. In October, the ICC prosecutor sought authorization to open an investigation into crimes committed in Georgia. If approved, this would be the ICC’s first investigation outside of Africa.

  1. Relevant Links

ASP, “List of supplementary items requested for inclusion in the agenda of the fourteenth session of the Assembly,” ICC-ASP/14/35, October 27, 2015, https://www.icc-cpi.int/iccdocs/asp_docs/ASP14/ICC-ASP-14-35-ENG.pdf.

The Prosecutor v. William Somoei Ruto and Joshua Arap Sang, ICC, Case No. ICC-01/09-01/11, “Public Redacted Version of Corrigendum: Decision on Prosecution Request for Admission of Prior Recorded Testimony,” August 19, 2015, https://www.icc-cpi.int/iccdocs/doc/doc2044015.pdf.

The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC, Case No. ICC-01/09-01/11 OA 10, “Decision on Applications for Leave to Submit Amicus Curiae Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence,” October 12, 2015, https://www.icc-cpi.int/iccdocs/doc/doc2086050.pdf.

The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC, Case No. ICC-01/09-01/11, “The African Union’s Amicus Curiae Observations on the Rule 68 Amendments at the Twelfth Session of the Assembly of States Parties,” October 19, 2015, https://www.icc-cpi.int/iccdocs/doc/doc2090973.pdf.

ASP, “Assembly of States Parties to the Rome Statue of the International Criminal Court, Official Records,” ICC-ASP/14/20/Vol. I, November 18-26, 2015, ICC-ASP-14-20-OR-vol-I-ENG.pdf.