On 12 February, the Appeals Chamber at the International Criminal Court (ICC) unanimously reversed Trial Chamber V(a)’s Decision on the Prosecution’s Request for Admission of Prior Recorded Testimony in the case against Kenyan deputy President William Ruto and former radio journalist and Head of Operations at Kenyan radio station Kass FM, Joshua Arap Sang. While the proceedings raised a number of interesting legal questions, the determining factor on Appeal was the interpretation of Article 51(4) of the Rome Statute, which prohibits the retroactive application of amendments to the Rules of Procedure and Evidence (RPEs) where such application would be detrimental to the accused.
By way of background, the issue arose following a Decision in August 2014, by Trial Chamber V(A), partly acceding to the Prosecutor’s request to admit out of court statements that a number of witnesses had made to the Prosecution in the course of investigations. The statements were not made under oath, however, they were collected in accordance with Rules 111 and 112 of the RPEs, which regulate the recording of formal statements made by persons who are questioned in connection with investigations or proceedings. The Prosecution requested the admittance of the prior statements and transcripts following the withdrawal of cooperation by a number of witnesses. Of those witnesses in relation to whom the request was submitted, several had recanted material portions of their prior statements on the stand and were declared hostile by the Court, while one failed to appear before the Trial Chamber and could not be located.
Trial Chamber V(A) granted the Prosecution’s request, by majority, pursuant to newly-adopted provisions. With regard to those witnesses who had appeared before the Court, it admitted the statements into evidence on the basis of Rule 68(2)(d), which provides for the admission of prior recorded testimony, subject to certain conditions, where a person who was “materially influenced by improper interference” had either failed to present their testimony in Court, or had “failed to give evidence with respect to a material aspect included in his or her prior recorded testimony”. The evidence of the witness who had failed to appear was admitted under Rule 68(2)(c), which provides for the admission of prior recorded testimony where a person is unavailable to testify, inter alia, because of obstacles “that cannot be overcome with reasonable diligence”.
The amendments had been introduced at the 12th Assembly of States Parties (ASP), in November 2013, after the commencement of proceedings against the accused. Under the terms of Article 51(4) of the Statute, the Trial Chamber was required to determine that the amendments were not being applied retroactively to the detriment of the accused. While the Trial Chamber found that the rules were neither being applied retroactively, nor were they detrimental to the accused, the Appeals Chamber disagreed. The Decision was overturned on the basis of an interpretation of ‘retroactivity’ and ‘detriment’.
The Trial Chamber found that admitting the statements on the basis of the new provisions would not constitute a retroactive application of the law. The Chamber determined that the request was “not seeking to alter anything which the Defence [had] been granted or been entitled [to] as a matter of right” prior to the amendments, therefore, the Rules had not been retroactively applied. The Chamber contrasted this with a situation where, for instance, evidence which had previously been admitted onto the record is excluded on the basis of a new Rule.
The Appeals Chamber rejected this approach and determined that, in establishing whether a provision was being applied retroactively, the determining factor is temporal, specifically: “the point in time at which the procedural regime governing the proceedings became applicable to the parties”. In the current case, the Chamber noted that from the beginning of the trial, “a clear procedural regime” governed the admissibility of prior recorded testimony. Therefore, in such a case, “the date of the start of the trial is the appropriate point at which to determine “retroactivity””. On this basis, the Appeals Chamber found that the Rules had been retroactively applied.
(ii) Detriment to the Accused
a. Abstract vs contextual assessment of detriment
Despite not being required to assess ‘detriment’ under Article 51(4) (since it had found that the application of the new Rules was not retroactive), the Trial Chamber nevertheless addressed the issue. The Chamber held that, in determining whether the application of a new Rule was detrimental, the rule should be read “on its face alone”, that is, “in the abstract, and not in any concrete application”. The Chamber determined that to consider the concrete application of the rules would “create uncertainty and double standards across procedural amendments, potentially requiring oscillation between amended and unamended rules each time an application was filed.”
The Appeals Chamber rejected this approach and determined that an evaluation of the new rule in the abstract was insufficient. The Appeals Chamber held that the wording of Article 51(4), which specifically provides that an amendment “shall not be applied retroactively to the detriment of the person”, implies an evaluation of the provision as applied in context.
b. Assessing Detriment
In its ‘abstract’ assessment, the Trial Chamber determined that since the new admissibility provisions could be equally invoked by both parties they were not inherently detrimental but rather “of neutral application”. The fact that the amendments were being applied to allow the prosecution to introduce incriminatory evidence did not, in itself, make them detrimental within the meaning of Article 51(4).
While not carrying out a case-specific assessment of detriment for the purposes of Article 51(4), the Trial Chamber nevertheless did assess whether the admission of the evidence would be unduly detrimental to the accused in this case, in addressing the ‘interests of justice’ requirement under Rule 68(2)(d)(i). In determining that it would be carrying out this assessment, the Trial Chamber points (albeit in a footnote) to the reference to the accused’s fair trial rights under Article 67 in the ASP resolution adopting the amendments to Rule 68. The Chamber found that admission of the prior recorded testimony would not, in itself, be unduly detrimental to the accused. Among its considerations was the fact that, in its final determination on guilt or innocence, the Chamber would weigh the probative value and reliability of the evidence taking into consideration its nature, whether it goes to the acts and conduct of the accused and whether it is corroborated.
The Appeals Chamber rejected the Trial Chamber’s approach. Primarily, it observed that the Trial Chamber “appears [emphasis added] to have based its interpretation of ‘detriment’ on prejudice to the rights of the accused”, and rejected this as unduly restrictive. The Appeals Chamber noted that the equivalent of Rule 51(4) in the RPEs of the ad hoc tribunals refer to “prejudice [to] the rights of the accused”, whereas Article 51(4) simply refers to detriment to the accused. Therefore, detriment in Article 51(4) should be interpreted broadly as: “disadvantage, loss, damage or harm to the accused including, but not limited to, the rights of that person”. In establishing the applicable threshold, the Appeals Chamber held that “not any disadvantage caused by the amendment…is sufficient for a finding of detriment under article 51(4)” but only that which causes “the overall position of the accused in the proceedings to be negatively affected by the disadvantage”.
In evaluating whether, in this particular case, the application of the new provisions was detrimental to the accused, the Chamber first determined whether the evidence would have been admissible under Articles 69(2) and (4) of the Statute (the alternate grounds specified in the Prosecution’s request). Had the evidence been admissible under these provisions, then the application of the new provisions would not have been considered to be detrimental. However, the Chamber declined to consider the Prosecution’s assertion that the evidence would have been admissible under Article 69(3), which affords the Court the broad power to “request the submission of all evidence that it considers necessary for the determination of the truth”. The Chamber held that this was not an alternate ground specified in the Prosecution’s request and the Trial Chamber had not addressed whether the evidence could have been admitted under this Article prior to the amendments.
Having determined that the evidence would not have been admissible under the alternate grounds, the Appeals Chamber then assessed the detrimental effect of the amended Rules themselves. The Chamber found that the new Rules enabled the admission of incriminatory testimony in a form that was not allowed prior to the amendments. Moreover, they created exceptions to the principle of orality and to the accused’s right to cross-examination of witnesses (protected under Article 67(1)(e) of the Statute). Therefore, the Appeals Chamber found that the disadvantage suffered by the accused were such as to negatively affect their overall position at trial and were therefore applied contrary to Article 51(4).
A provision requiring an assessment of an abstract notion, such as ‘detriment’, is bound to elicit varying interpretations. Whether a measure causes an unfair disadvantage to the accused is a matter of degree; disagreements on whether an appropriate threshold is met would not, in itself, be extraordinary. What is more interesting in this case is the divergent positions of the Trial and Appeals Chambers on the essential nature of the elements of ‘non-retroactivity’ (a fundamental criminal law principle) and ‘detriment’.
 See Public redacted version of “Prosecution’s request for the admission of prior recorded testimony of [REDACTED] witnesses, paras. 5, 11, 66, 70-71, 130
 It is worth noting that both the Trial Chamber and the Appeals Chamber determined that Article 24(2) did not apply in this case . [Article 24(2) provides that: “[i]n the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply”]. Trial Chamber V(A) Decision para. 22 and Appeals Chamber Judgment paras. 66-73. Contra Judge Eboe-Osuji Separate, Partly Concurring Opinion para 18 fn 2 wherein he challenges the dichotomy between procedural law and substantive law generally.
 Trial Chamber V(A) Decision para. 23
 Appeals Chamber Judgment para. 79
 Ibid. para. 80
 The Appeals Chamber referred to the decisions on the conduct of proceedings that are usually held by the Trial Chamber prior to the commencement of the evidentiary hearing pursuant to Article 64(3)(a) and 64(8)(b) of the Statute and rules 134(1) and 140 of the RPEs as well as the fact that the prosecutor usually provides the witness list pursuant to Rule 76(1) RPE.
 Appeals Chamber Judgment para. 81
 Trial Chamber V(A) Decision para. 24
 Appeals Chamber Judgment para. 88
 Trial Chamber V(A) Decision para. 25
 Ibid. para. 27
 Ibid. paras. 60, 81, 111, 128
 Appeals Chamber Judgment para. 75
 ICTY RPEs Rule 6(D), ICTR RPEs Rule 6(C)
 Appeals Chamber Judgment para. 78
 Ibid. paras. 82-86
 OTP Submissions para. 49 (put initial submissions)
 Contra see Judge Eboe-Osuji Separate, Partly Concurring Opinion para. 16
 Appeals Chamber Judgment paras. 87. Interestingly the Trial Chamber did refer to its powers under Article 69(3) in its determination of whether granting the request would be contrary to the interests of justice under Rule 68(2)(d). However, it did not explicitly rely on this provision in the grounds for its decision. More interesting is that in his separate, partly concurring opinion, Judge Eboe-Osuji determined that he would have granted the request under Article 69(3), albeit under more stringent conditions and for a more limited purpose (See Judge Eboe-Osujii Separate Partly Concurring Opinion)
 Appeals Chamber Judgment para. 92
 Although the witnesses who had testified in Court had been cross-examined by the accused the Appeals Chamber had held that this cross-examination was not sufficient: since the witnesses had recanted their testimony, the Prosecution failed to elicit incriminating evidence in the examination in-chief. In this situation, the accused could not be expected to elicit the incriminating evidence on cross-examination just to be able to challenge it. See Ibid. para. 93
 Ibid.paras. 88 – 96