A trial chamber of the International Criminal Court (ICC) has ordered eight witnesses appear before it to testify in the case against Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang.
In a 2-1 decision, Trial Chamber V(a) directed the witnesses to testify via video-link or at a location in Kenya. The trial chamber did not set a date or time for such hearings in its April 17 decision. It delegated that to the prosecution or the Registrar to communicate to the witnesses when the time comes.
The witnesses Trial Chamber V(a) has ordered to appear before it are: Witness 15, Witness 16, Witness 336, Witness 397, Witness 516, Witness 524, Witness 495, and Witness 323. They are all currently in Kenya.
The trial judges have also asked the government of Kenya to assist in ensuring the appearance of the witnesses. The chamber said this assistance includes communicating to the witnesses the court’s order and facilitating their appearance, if need be by compelling them to do so using the laws of Kenya.
Trial Chamber V(a) issued its 78-page decision after receiving two applications from the prosecution and responses from Kenya’s Attorney General, the defense teams of Ruto and Sang, and the lawyer representing the victims. The chamber even held a status conference on this subject in February during which Kenyan Attorney General Githu Muigai made submissions.
In summary, the prosecution argued in its applications and during the status conference that the eight witnesses had been cooperative and willing to testify until early last year. According to the prosecution, the witnesses’ unwillingness to testify began after their identities were disclosed to the defense between February and April last year. In its application, the prosecution did not make any explicit or implicit allegation against the defense lawyers but noted that the witnesses developed a change of heart after their identities were disclosed.
Some of the witnesses wrote to the prosecution through Kenyan lawyers, withdrawing their testimony, others simply did not communicate with the prosecution. The prosecution said in its applications that some of the witnesses claimed they had been offered bribes not to testify while others reported that they had been intimidated and no longer wanted to testify.
In its applications, the prosecution asked the judges to compel the witnesses to testify. It argued that Articles 64(6) (b) and 93(1) (d) and (l) of the Rome Statute allowed the court to do so and seek the assistance of a State Party if necessary. Article 64 covers the specific and discretionary powers a chamber has in conducting a trial. Article 93 covers the cooperation the court can expect of a State Party to the Rome Statute, such as Kenya.
Wilfred Nderitu, the lawyer for victims, supported the prosecution’s applications. Attorney General Muigai and the defense teams disagreed with the prosecution, arguing the trial chamber could only compel a witness to testify before it if that witness was already in The Hague. Muigai and defense lawyers also argued that the court could only seek the assistance of a State Party if a witness had already volunteered to testify and perhaps needed assistance in getting travel documents.
Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr emphatically disagreed with the arguments of the Attorney General and defense.
“It was argued that an ICC Trial Chamber has no power to subpoena witnesses to appear before it. According to this argument, appearance of witnesses is dependent on the so-called ‘principle of voluntary appearance’,” they wrote.
“The ultimate upshot of this theory would be this. A witness who has been brought to The Hague by the Court’s Victims and Witnesses Unit will be wholly free to refuse to come to court on the appointed day and give his testimony, preferring instead to go sightseeing in the Netherlands. And the Chamber would be powerless to order him to appear in court for his testimony,” the judges observed.
“That theory does not deserve serious consideration at all. It is quite simply not supported by a correct understanding of international law, customary practice in the administration of international criminal justice, and, indeed, the relevant provisions of the Rome Statute itself,” Judges Eboe-Osuji and Fremr concluded.
They explained their conclusions using two decisions of the International Court of Justice and references from various scholars including the man considered by many as the father of international law, Hugo Grotius, to interpret Articles 64 and 93 of the Rome Statute. They also referred to the statutes and rules of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia. The two judges also made reference to the ICC’s own principle of complementarity to support their conclusion. This principle places the ICC as a court of last resort and the national judicial system as the first place to try cases of genocide, war crimes, or crimes against humanity.
Judges Eboe-Osuji and Fremr stated that if a domestic court has the powers to subpoena a witness to testify in a case of theft then it should also have such powers when trying a case involving serious crimes such as crimes against humanity.
“On no reasonable view, of course, does it become a serious proposition that a domestic court with powers to subpoena witnesses to appear in a case of theft will suddenly lose that power—by some peculiar legal reasoning purportedly anchored on the Rome Statute—in cases of genocide, crimes against humanity or war crimes,” the judges wrote.
“That being the case, the doctrine of complementarity should, in good faith, put the ICC in no weaker stead to conduct such trials in cases before it,” the judges concluded.
The dissenting opinion of Judge Olga Herrera Carbuccia is yet to be published, and no date has been given on when it will be available.