The Ruto/Sang subpoena decision: A critical review

Although ruling by the trial chamber to compel witnesses to testify is good for the interests of justice, it contravenes express provisions in the Rome statute

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joshua-arap-sangJeremy Bentham famously stated that “witnesses are the eyes and the ears of justice”. Indeed, the importance of witnesses to the effective functioning of any court cannot be overemphasised. In fact, witness testimony has always been regarded as the best form of evidence a court can use.

It is, however, appreciated that witnesses may not always be willing to come forward to testify. As such, courts have, as a general rule, the power to summon witnesses under the threat of penalty. This power is known as subpoena power.

The International Criminal Court (ICC) relies heavily on witness testimony. But, unlike other courts, the ICC had since its inception been understood to lack subpoena power. Sample the following views from leading experts in International Law:

“Nothing in the (Rome) Statute provides for compellability of witnesses, for example, by issuance of subpoena or similar orders, to appear before the court. Witnesses are to appear voluntarily” – Professor William Schabas, “An Introduction to the International Criminal Court”, 3rd Edition (2007)298].

“While the ICC could summon witnesses…the state party is not under an obligation to compel the witness’s appearance before the ICC” – Gilbert Bitti, “Article 64: Functions and Powers of the Trial Chamber” in Triffteller (ed), “Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article”, 2nd edition (2008) 1213.
“One of the most puzzling aspects of the ICC’s legal edifice is the lack of subpoena powers in relation to witnesses…witnesses have a right not to be compelled to testify before the ICC, regrettable as this may be” – Professor Goran Sluiter,”’I Beg You, Please Come Testify’ – The Problematic Absence of Subpoena Powers at the ICC”, New Criminal Law Review, (2009) 591

These views are grounded in Article 93(1) (e) of the Rome Statute, which states:
“States Parties shall, in accordance with the provisions of this Part, and under the procedures of international law, comply with requests by the court to provide the following assistance in relation to investigations or prosecutions:
…facilitating the voluntary appearance of persons as witnesses or experts before the court.” (Emphasis added)

Thus, it has been long understood that the reference to “voluntary appearance” in article 91 (1) (e) entails a general prohibition of compulsion, whether by the ICC or by states.
It therefore came as a surprise when on April 17, 2014, in the Ruto and Sang cases, the ICC Trial Chamber ruled that Kenya had an obligation to compel the attendance of witnesses at the request of the ICC.

This article reviews some of the reasons given for the drastic decision, the first of its kind to be given by the ICC.

Background
The prosecution had identified 8 witnesses who had initially provided statements that the prosecution viewed as highly relevant potential evidence. But, the prosecution submitted, those witnesses were no longer cooperating and had affirmed that they were no longer willing to testify.

Consequently, the prosecution requested the court to obtain the assistance of the Kenyan government in summoning witnesses.  The prosecution argued, inter alia, that “it was never intended that the trial chamber of the ICC, dealing with the most serious crimes of concern to humanity, would be denied this ability (to secure evidence it requires)”, insisting“it is an ability any criminal court in must have”.

The Defence and the Government of Kenya strongly opposed the relief sought in the Prosecution’s request, terming it as “creative but legally improper”. The defence maintained that the government of Kenya was not under duty to compel the attendance of witnesses, quite naturally invoking Article 93(1) (e) of The Rome Statute to support their case.

Doctrine of implied power
The Court took the view that the power to compel a witness is an incidental power that is critical for the performance of the essential functions of the court. The judges relied on article 4(1) of the Rome Statute, which provides:

“The court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and fulfilment of its purposes.”
The Trial Chamber held that “legal capacity” includes the power to compel the appearance of witnesses before the court.

The court also cited a decision by the International Court of Justice (ICJ) where the ICJ held: “Under International Law, an international body or organisation must be deemed to have those powers which, though not expressly provided in the constitutive instrument, are conferred upon it by necessary implication as being essential to the performance of its duties.”

It is worth noting here that in exercise of its power, the ICC is limited by Article 4(2) of the Rome Statute which states:
“The court may exercise its functions and powers, as provided in this statute…”
As well, Article 21 states, “The court shall apply…(a)in the first place, this statute, Elements of Crime and its Rules of Procedure and Evidence (b) in the second place, where appropriate, applicable treaties and rules of international law…”

The upshot of the above provisions would be that the Rome Statute requires the ICC to give preference to the provisions of the statute when exercising its powers.

Why, then, did the court have to expand its powers beyond the statute and rely on the doctrine of implied power? The court failed to expound on this.

Customary international criminal procedural law
The Court also relied on the fact that, traditionally, the trial chamber of an international criminal court has power to subpoena the attendance of witnesses.

Rule 54 of the International Criminal Tribunal for Rwanda (ICTR) rules , for example, provides as such:  “At the request of either party or proprio motu, a judge or a trial chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for purposes of an investigation or for the preparation or conduct of a trial.”

Similar provisions are present in the procedural law of the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone, among other tribunals. On that basis, the judges then proceeded to find that:

“In the circumstances of that settled and accepted practice in international (and national) criminal procedural law, it would require very clear language indeed for the state parties to the Rome Statute to be taken to have intended that the ICC – as the permanent international criminal court established for the primary purpose of eliminating impunity for grave violations of international criminal norms – should be the only known criminal court in the world (at the international and national level) that has no power to subpoena witnesses to appear for testimony.”

This reasoning is a bit suspect in the sense that it ignores the peculiar nature of the ICC, as well as the legislative history of the Rome statute. In fact, during its enactment, a majority of states were opposed to an all-powerful international criminal court. Professor Goran Sluiter has observed that it is during negotiations by delegates that the court’s subpoena power was sacrificed. This was because of national sovereignty considerations.

It therefore doesn’t seem appropriate to compare the ICC with tribunals such as the ICTR and the ICTY which are organs of the UN Security Council.

In sum, the ICC decided that it has the power to obligate a state party to compel the attendance of a witness summoned by the court.  The ruling by the trial chamber is good for the interests of justice. However, as we have seen, the ruling contravenes express provisions in the Rome statute. Some have termed it as “a dramatic example of judicial activism.”

Thus, some complications arise. For instance, Rome statute does not provide a mechanism for punishing a person who refuses to honour a subpoena. Article 70 of the Rome Statute which governs offences against the administration of justice clearly does not contemplate the offence of refusing to testify. Suppose a witness refuses to appear for testimony despite an order by the ICC, how are they to be punished, and in accordance to what law? Some may argue that individual states may device tools to punish this offence, but shouldn’t punishment for the same offence be subject to a uniform regime?

Such issues must be addressed, either through amendment of the Rome Statute, or by the ICC itself in similar future cases.

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