Judge Olga Herrera Carbuccia has disagreed with her fellow judges that the Kenyan government can compel eight unwilling prosecution witnesses to appear before the International Criminal Court (ICC) in the trial of Deputy President William Sameoi Ruto and former journalist Joshua arap Sang.
Judge Carbuccia said in her April 29 dissenting opinion that she, however, agreed with her fellow judges that Trial Chamber V(a) had the power to summon witnesses who are not willing to testify to appear before it. Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr issued a majority decision on April 17 in which they stated that the ICC had the power to summon witnesses, and a State Party had a legal obligation to compel the witnesses concerned to appear before the court.
The question of whether the ICC can summon a witness who has declined to testify before it arose from an application Prosecutor Fatou Bensouda filed in December last year. Trial Chamber V(a) made its majority decision on the issue after receiving a further application on the matter from Bensouda and submissions from Kenya’s Attorney General, the defense, and the lawyer for the victims.
Judge Carbuccia wrote in her 13-page dissenting opinion that only if a witness has voluntarily agreed to appear before the ICC does a State Party like Kenya have a legal obligation in ensuring they are able to attend court. She also said she disagreed with Judges Eboe-Osuji and Fremr’s conclusion that although the Rome Statute that governs the ICC does not explicitly state the court can compel witnesses to appear before it, the power was implied in some of its provisions.
The judge also observed that the Rome Statute does not provide for any sanctions against anyone who refuses to testify despite being served with a court order requiring them to do so.
“Consequently, a fundamental element of subpoena powers is absent,” Carbuccia wrote.
Following the publication of Judge Carbuccia’s dissenting opinion, all parties have a right to apply to Trial Chamber V(a) for leave to appeal the decision if they wish. In an April 23 email, the judges notified the defense of Ruto and Sang that they had until this past Monday (May 5) to file such an application. They also gave the prosecution until May 9 to file a response if necessary.
Ruto’s lawyers filed their application on May 5 as did Sang’s legal team. They have relied heavily on Judge Carbuccia’s dissenting opinion to argue why they should be allowed to appeal the majority decision.
Trial Chamber V(a) has also allowed the Kenyan government to make submissions on the issue by May 12. The judges said in a decision made on Friday that the Kenyan government could choose to file an application for leave to appeal or submit observations as an amicus curiae (friend of the court). The chamber made the decision in response to an application made by Attorney General Githu Muigai.