Post by OtishOtish on Nov 28, 2015 20:35:02 GMT 3
I have to admit that I probably don't fully understand this Great Retroactive Victory that GoK has won and what it means ... at least what is being celebrated with such vigour. Would one of the Jubilating Victors care to read the following and tell me what it is that I'm missing.
What the ASP has said is that it "reaffirms" its "understanding" on the non-retroactive use of Rule 68. GoK claims as a victory. The ASP carefully did not explicitly state the exact nature of its "understanding". But it was a "re-affirmation", so we may take it to be the same as whatever it was before the circus---specifically as at Nov 2013 when Rule 68 was amended.
Now, rule amendments are constrained by Article 51, of which part 4 states that:
Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted ...
www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf
The court therefore had to consider non-retroactivity (as the ASP could reasonably have expected). And the court did that, contrary to the stories that GoK types have been peddling. Before we get into that ...
What GoK wanted has two parts (blue and red):
www.icc-cpi.int/iccdocs/asp_docs/ASP14/ICC-ASP-14-35-Add2-ENG.pdf
The ASP stated that it "reaffirmed" its "understanding" on blue, but it did not say anything on red.
Here, we should recall that the court already considered non-retroactivity of the rule. A review of that also sheds light on why GoK had to ask for red, in addition to blue.
The OTP argued that, in the legal sense, its application did not involve retroactive use. The argument is a bit long, but briefly:
25. Here, however, the application of the amendments to rule 68 to the present case is not dependent on "past occurrences or events", nor does it abrogate any preexisting rights or duties ... Therefore, the rule against retroactivity is not engaged.
23. Turning to Article 51(4) of the Statute, the Chamber does not consider the relief sought to be a retroactive application of the amended Rule 68. The Prosecution's Request is not seeking to alter anything which the Defence has previously been granted or been entitled to as a matter of right.
www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/icc01090111/court%20records/chambers/tcVa/Pages/1938.aspx
So, I imagine that neither the OTP nor the relevant Trial Chamber will have any problems with the ASP statement: "That's OK. We have not used anything retroactively."
Whether or not the rule has indeed been used retroactively is now up the Appeals Chamber to determine. But however one construes the ASP statement, as a matter of simple logic, the determination of whether something has been done or not done is not affected by a statement to the effect that it should not be done. (At best, a prohibition gives justification for the spending of valuable time on the question of whether something has been done; the actual determination is independent of the prohibition.)
I shall now put on my Positive Hat: There is (and already was) a very good chance that Defence will win on the appeal anyway. His Honour Oga Chief-O Broder Osuji "helpfully" gave* them the bases, and they have to do with such things as what constitute "testimony". So, let us go ahead and assume that the application of Rule 68 will---for whatever reasons, including "retroactivity"---be tossed out on appeal, and let us join in any and all jubilations.
Celebrations done, and everyone sober again, let's see if there is anything we might have forgotten during the Retroactive Victory Lap:
The decision to apply Rule 68 was by a majority, with Oga Osuji dissenting* in a manner that was quite helpful to the Defence, and in fact the Defence used his points in their appeal. But Oga Broda in rejecting the ideas of his colleagues thought he had better ones of his own. So, right after being so helpful to the Defence, he came up with other ideas. Ideas that the Defence might consider decidedly unhelpful. Paraphrasing: "Article 69(3) allows us to admit anything we think will help in the search for the truth; that's what we should use, instead of Rule 68".
And Oga Broder was not done. Apparently there was some stuff that his colleagues thought they could not admit under Rule 68. Oga seemed to think that they were being unnecessarily shy there. His idea: If they use Article 69(3), then they can (and should) admit that other stuff as well.
So, basically, if the Trial Chamber cares to have the evidence in---and it should, in its search for the truth---then it will go in. And then some.
It seems a matter of common sense that before one dances excessively, to the extent of risking lameness, one ought to at least be sure that it is the main band that is playing. Indeed, there is an old and well-known African saying on such matters.
What the ASP has said is that it "reaffirms" its "understanding" on the non-retroactive use of Rule 68. GoK claims as a victory. The ASP carefully did not explicitly state the exact nature of its "understanding". But it was a "re-affirmation", so we may take it to be the same as whatever it was before the circus---specifically as at Nov 2013 when Rule 68 was amended.
Now, rule amendments are constrained by Article 51, of which part 4 states that:
Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted ...
www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf
The court therefore had to consider non-retroactivity (as the ASP could reasonably have expected). And the court did that, contrary to the stories that GoK types have been peddling. Before we get into that ...
What GoK wanted has two parts (blue and red):
[That] ...
This 14th Assembly decides and clarifies that rule 68 as amended by the 12th session of the Assembly of State Parties (by resolution ICC-ASP/12/Res.7) has no retroactive applicability and cannot apply to situations commenced before the 27th November 2013
This 14th Assembly decides and clarifies that rule 68 as amended by the 12th session of the Assembly of State Parties (by resolution ICC-ASP/12/Res.7) has no retroactive applicability and cannot apply to situations commenced before the 27th November 2013
www.icc-cpi.int/iccdocs/asp_docs/ASP14/ICC-ASP-14-35-Add2-ENG.pdf
The ASP stated that it "reaffirmed" its "understanding" on blue, but it did not say anything on red.
Here, we should recall that the court already considered non-retroactivity of the rule. A review of that also sheds light on why GoK had to ask for red, in addition to blue.
The OTP argued that, in the legal sense, its application did not involve retroactive use. The argument is a bit long, but briefly:
25. Here, however, the application of the amendments to rule 68 to the present case is not dependent on "past occurrences or events", nor does it abrogate any preexisting rights or duties ... Therefore, the rule against retroactivity is not engaged.
The judges of the Trial Chamber agreed with that:
23. Turning to Article 51(4) of the Statute, the Chamber does not consider the relief sought to be a retroactive application of the amended Rule 68. The Prosecution's Request is not seeking to alter anything which the Defence has previously been granted or been entitled to as a matter of right.
www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/icc01090111/court%20records/chambers/tcVa/Pages/1938.aspx
So, I imagine that neither the OTP nor the relevant Trial Chamber will have any problems with the ASP statement: "That's OK. We have not used anything retroactively."
Whether or not the rule has indeed been used retroactively is now up the Appeals Chamber to determine. But however one construes the ASP statement, as a matter of simple logic, the determination of whether something has been done or not done is not affected by a statement to the effect that it should not be done. (At best, a prohibition gives justification for the spending of valuable time on the question of whether something has been done; the actual determination is independent of the prohibition.)
I shall now put on my Positive Hat: There is (and already was) a very good chance that Defence will win on the appeal anyway. His Honour Oga Chief-O Broder Osuji "helpfully" gave* them the bases, and they have to do with such things as what constitute "testimony". So, let us go ahead and assume that the application of Rule 68 will---for whatever reasons, including "retroactivity"---be tossed out on appeal, and let us join in any and all jubilations.
Celebrations done, and everyone sober again, let's see if there is anything we might have forgotten during the Retroactive Victory Lap:
The decision to apply Rule 68 was by a majority, with Oga Osuji dissenting* in a manner that was quite helpful to the Defence, and in fact the Defence used his points in their appeal. But Oga Broda in rejecting the ideas of his colleagues thought he had better ones of his own. So, right after being so helpful to the Defence, he came up with other ideas. Ideas that the Defence might consider decidedly unhelpful. Paraphrasing: "Article 69(3) allows us to admit anything we think will help in the search for the truth; that's what we should use, instead of Rule 68".
And Oga Broder was not done. Apparently there was some stuff that his colleagues thought they could not admit under Rule 68. Oga seemed to think that they were being unnecessarily shy there. His idea: If they use Article 69(3), then they can (and should) admit that other stuff as well.
So, basically, if the Trial Chamber cares to have the evidence in---and it should, in its search for the truth---then it will go in. And then some.
It seems a matter of common sense that before one dances excessively, to the extent of risking lameness, one ought to at least be sure that it is the main band that is playing. Indeed, there is an old and well-known African saying on such matters.