The judges of the International Criminal Court have illegally amended the rules of procedure to overturn fair trial safeguards and appeal rights in Article 70 cases. Coming only a few weeks after the Assembly of State Parties and the ICC’s Appeals Chamber unanimously reiterated that Article 68 cannot be applied retroactively to the detriment of accused persons, the latest move by the judges is not only sneaky and bizarre, it amounts to a rogue challenge to the ASP’s legislative mandate and suggests a curious urgency to lay ground for a move.
It is clear that only an acquittal of Deputy President William Ruto and journalist Joshua Sang can be the only plausible outcome on the cards following those authoritative decisions. But the ICC appears desperate to nail them by hook or by crook. The proposed changes by the judges overturn existing provisions. The Rome Statute permit judges to make rules only where the Statute is silent. Obviously, overturning existing rules falls outside this authority and assaults the legislative and oversight mandates of the ASP. That judges of the ICC would even contemplate such a desperately illegal idea is indicative of the lengths to which the Court will go in pursuit of their predetermined outcomes. In this case, that outcome appears to be the objective of somehow nailing the accused under one pretext or another, regardless of the law and evidence.
The amendments to Rule 165, removing three judges and allocating the entire trial assignment to one judge obviously undermines important decisional safeguards that aid the course of justice. Placing enormous impediments to the right to a fair trial and the right to appeal also pave the way for successful persecution. Usurping the role of the ASP is a bold announcement that the ICC is a rogue institution, unbounded by any legislative restraints.
The mischief afoot is plain to see: faced with the stark inevitability of acquitting Ruto and Sand, the ICC are urgently facilitating a scenario where the Court can require the attendance of the accused for the announcement, whereupon a single judge will issue warrants for their arrest simultaneously with the acquittal. Thereafter, review and appeals hearings will drag on for years. This desperation to have innocent people incarcerated without lawful cause underscores the abysmal depths to which the ICC has descended so rapidly, because of the ill-conceived Kenyan cases.