On 12 February 2016, the Appeals Chamber of the International Criminal Court (ICC) issued a ruling granting a Defense request to exclude certain prior recorded testimony from evidence pursuant to amended Rule 68 of the Rules of Procedure and Evidence (RPE). In doing so, the Appeals Chamber unanimouisly reverse a prior Trial Chamber decision to admit this evidence despite allegations that doing so would violate the Rule 51(4) prohibition against retroactively applying ammended RPE to the detriment of an accused. The trial of William Samoei Ruto and Joshua Arap Sang, charged with crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in the context of the 2007-2008 post-election violence in Kenya, commenced in late 2013.
The decision is noteworthy, since this was the first time that amended Rule 68 was being adjudicated before the Appeals Chamber, and the subject of witness tampering and the reliability of testimonial evidence has been highly controversial at the ICC. It is important to understand this new piece of jurisprudence, insofar as it will certainly impact the investigative practices and trial procedure at the ICC in general. Moreover, given the apparent importance of these witnesses for the Prosecution case, the Appeals Chamber decision is likely to affect the outcome of the Defense’s pending ‘no case to answer’ motion. In anticipation of the Trial Chamber’s decision on that mid-trial motion, this report offers a close analysis of the key legal and procedural issues raised throughout the proceedings on the admissibility of the prior recorded statements. It explains in detail the submissions by the parties, the reasoning by Trial Chamber V(a) in its decision of 19 August 2015, and the judgment issued by the Appeals Chamber on 12 February 2016.