Were that to occur as it is the case with the trial decision in Prosecutor V Mr William Ruto and Mr Sang, it will be inconsistent with the very nature and purpose of the rules and procedures which is to ensure consistency, fairness in the trial proceedings while safeguarding the rights of due process to the accused. It is therefore reasonable to state that the amendment to article 68 of the Rules of Procedure and Evidence of the ICC entered into force on 27 November 2013 and therefore cannot reasonably be retrospectively applied to ongoing proceedings at the time of the amendment at least not in a manner that is inconsistent to the fair trial rights of accused persons before the court. The Rome Statute in its article 51 confers the power to establish and amend the rules of procedure and evidence of the ICC on the Assembly of States Parties and states that where such rules are established or amended, they enter into force immediately effectively establishing a timeline for its application. From inception, the amendment of Rule 68 was greeted with caution and even skepticism in some respects. The retroactive application the amendment to article 68 of the rules of procedure and evidence of the ICC to admit the witness statements of some witnesses in the case of the Prosecutor V Mr William Ruto and Mr Sang by the TC of the ICC is arguably mired in controversy. Article 64 of the Statute of the ICC provides in paragraph 2 that the Trial Chamber( hereafter ‘’TC’’) shall ensure ‘’that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.’’ Any trial decision that is inconsistent with this provision of the Statute is unfair. This paper addresses two distinct issues: (i) the retroactive application of the amended provision to an ongoing case and (ii) the threshold for the admissibility of untested potentially incriminating evidence on the basis of alleged witness tampering and of recanted evidence.Ī fundamental goal of international criminal trials is fundamental fairness. This is a research paper regarding the new scope of the use of prior record testimony in the International Criminal Court (‘’ the Court’’) under the amended Rule 68 of RoPE and its limitation in light of the fair trial requirement outlined in Rome Statute and International Covenant on Civil and Political Rights, relevant decisions of the Court. FAIR TRIAL CONSIDERATIONS IN THE APPLICATION OF THE AMENDED ARTICLE 68 OF ICC RoPE
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