The Appeals Chamber of the International Criminal Court (ICC) has upheld the decision of a lower chamber to summon witnesses who are reluctant to testify in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
In an unanimous decision announced on Thursday, the Appeals Chamber also upheld the decision of Trial Chamber V(a) to compel those witnesses to testify so long as they give their testimony in Kenya. Presiding Judge Akua Kuenyehia, while reading the summary of the Appeals Chamber’s decision in open court, noted that a trial chamber could compel witnesses to testify as long as they testified in their country of residence.
Judge Kuenyehia said the Appeals Chamber reached this conclusion based on the drafting history of the statute that created the ICC. She said the Appeals Chamber concluded that countries involved in those negotiations considered it would be wrong if a witness was compelled to testify in The Hague, where the ICC sits, if that meant international travel.
The Appeals Chamber also upheld the decision of Trial Chamber V(a) that the Kenyan government, where necessary, should compel those witnesses to testify. The Appeals Chamber made its decision after receiving applications from lawyers representing Ruto and Sang challenging the trial chamber’s decision. The prosecution challenged the defense’s application, and the Kenyan government filed submissions as a friend of the court supporting the position taken by the defense.
“In sum, the Appeals Chamber finds no error in the Trial Chamber’s finding that Kenya is obliged to cooperate in compelling the appearance of witnesses before the court either by sitting in situ [in other words, in Kenya] or by way of video link,” said Judge Kuenyehia.
Ruto and Sang are on trial on three counts of crimes against humanity for their alleged roles in violence that erupted after the December 2007 presidential election. Their trial began last year in September.
The Appeals Chamber is the highest chamber in the ICC. This means the defense have no further opportunity for appeal. Thursday’s decision then means that Trial Chamber V(a) can continue hearing testimony from prosecution witnesses who developed cold feet and declined to appear in court.
So far the chamber has heard the testimony of four such witnesses who have appeared before it via video link from an undisclosed location in Nairobi. These witnesses – Witness 604, Witness 495, Witness 516, and Witness 637 – testified between September 4 and October 6.
Trial Chamber V(a) made the initial majority decision to summon these prosecution witnesses in April after the prosecution applied to it to do so because eight of its witnesses had stopped cooperating with it last year. The lawyers for the defense and victims made submissions against and in support of the prosecution’s application, which the chamber took into consideration before making its decision. The chamber made a second unanimous decision in June to summon a ninth witness following another prosecution application.
The prosecution wanted the reluctant witnesses to testify because they believe the witnesses’ change of heart was the result of bribery or intimidation leading them to recanting their statements to the prosecution and declining to testify.