Kenya finally won a significant triumph at the Assembly of State Parties when it’s motion against retrospective application of the amended Rule 68 was adopted. After gruelling negotiation over text and marathon semantic trade offs Kenya’s position has been embraced. This deals a fatal flaw to the Prosecution’s hopes in the Kenyan situation. Whilst OTP has tried to cast Kenya’s push as entrenching impunity, the fact of the matter is that retroactive application of rules to cure prosecutorial deficiency is the greater evil whereas accountability requires OTP to squarely face its negligence in preparing the cases.
Although major powers lined up on the side of OTP, Africa and the ‘Third World ” sided strongly with Kenya, establishing once and for all who the dominant constituency is. As a result, proceedings quickly became a matter of choosing between retroactive application of Rule 68, or the Court itself as Africa threatened to walk out of the Rome Statute en masse. A sea change just happened in international diplomacy, where African values may no longer be ignored without consequence. Similarly, The imperial powers of yesteryear have had to retreat in undignified haste as reconfigured geopolitics exploded in their faces.
The example they long sought to make of Kenya has iterated in unexpected form, and the wisdom of amending Rule 68 in the first place becomes profoundly questionable. The exhausted Kenyan delegation is now savouring a rare golden victory as the prospects of further viable proceedings in the Kenyan cases take a significant step backwards.