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Prosecutor v. Ruto.

Published online by Cambridge University Press:  20 January 2017

Charles Chernor Jalloh
Charles Chernor Jalloh*
Affiliation:
Florida International University College of Law
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Extract

On October 9, 2014, the Appeals Chamber of the International Criminal Court (ICC or Court) unanimously held that, under the ICC Statute, a trial chamber has the power to order witnesses to appear before it to give testimony in pending proceedings, which imposes legal obligations on the individuals concerned to comply. In so ruling, the appellate chamber upheld a controversial trial chamber decision granting the ICC prosecutor’s request to summon eight witnesses to testify in the joint trial of Kenya’s vice president, William Samoei Ruto, and former journalist Joshua arap Sang, both of whom faced charges of crimes against humanity for their alleged role in “post-election violence” that led to the deaths of over twelve hundred people (para. 9).

Keywords

International Criminal Court—Appeals Chamber—power of trial chamber to subpoena witnesses—duties of states parties to enforce subpoena and to compel attendance of witnesses—implied powers
Type
International Decisions
Information
American Journal of International Law , Volume 109 , Issue 3 , July 2015 , pp. 610 - 616
Copyright
Copyright © American Society of International Law 2015

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References

1 Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 3 [hereinafter ICC Statute or Rome Statute].

2 Prosecutor v. Ruto, Case No. ICC-01/09-01/11 OA 7 OA 8, Judgment on the Appeals of William Samoei Ruto and Mr. Joshua arap Sang Against the Decision of Trial Chamber V(A) of 17 April 2014 Entitled “Decision on Prosecutor’s Application for Witness Summonses and Resulting Request for State Party Cooperation” (Oct. 9, 2014) [hereinafter Judgment]. Documents of the ICC cited herein are available at its website, http://www.ICC-cpi.int. Extensions to the case number are included to aid in locating the documents in question.

3 Prosecutor v. Ruto, Case No. ICC-01/09-01/11-1274-Corr 2, Decision on Prosecutor’s Application for Wit ness Summonses and Resulting Request for State Party Cooperation (Apr. 17, 2014) [hereinafter Trial Chamber Decision]; see also id., Dissenting Opinion of Judge Herrera Carbuccia, ICC-01/09-01/11-1274-Anx (Apr. 29, 2014). The companion case, involving Kenya’s sitting head of state, President Uhuru Kenyatta, was recently dis missed without prejudice. Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11-1005, Decision on the Withdrawal of Charges Against Mr. Kenyatta (Mar. 13, 2015).

4 Witnesses were in fact subpoenaed recently. See Prosecutor v. Ruto, Case No. ICC-01/09-01/11-1817-Red, Decision on Prosecution Request for Issuance of a Summons for Witness [No.] 727 (Feb. 17, 2015); see also note 17 infra.

5 Trial Chamber Decision, supra note 3, paras. 17–19, 25.

6 Id., paras 181–93. The chamber rejected Kenya’s argument that its domestic law lacked the necessary authority, observing that the attorney general and the defense had failed to take up its repeated requests for the substantiation of that claim and that, in any event, Kenya’s implementing legislation for the Rome Statute clearly anticipated such types of requests. Id., para. 164.

7 In addition to relying on several International Court of Justice judgments on implied powers doctrine, the judges invoked the principle of good faith (pacta sunt servanda) as a fundamental rule of the law of treaties codified in the Vienna Convention on the Law of Treaties, Arts. 26, 31(1), May 23, 1969, 1155 UNTS 331. Trial Chamber Decision, supra note 3, para. 121.

8 Trial Chamber Decision, supra note 3, paras. 124, 128–29.

9 Article 64(6)(b) is quoted in part in the text at note 11infra ; Article 93(1(e) is quoted in the text at note 12 infra ; and Article 93(1)(l) is quoted in part in the text at note 13infra. In her short dissenting opinion, Judge Olga Herrera Carbuccia argued that Article 93(1)(e) and (l) imposed no duty on Kenya to give effect to subpoenas directed to individuals located on its territory. Dissenting Opinion of Judge Herrera Carbuccia, supra note 3, paras. 17–18.

10 Prosecutor v. Ruto, Case No. ICC-01/09-01/11-1313, Decision on Defense Applications for Leave to Appeal the “Decision on Prosecutor’s Application for Witness Summonses and Resulting Request for State Party Cooperation” and the Request of the Government of Kenya to Submit Amicus Curiae Observations (May 23, 2014). In a partly dissenting opinion, Judge Eboe-Osuji (who together with Judge Fremr formed the initial subpoena-granting majority) would have denied the defense leave to appeal because the requirements of Article 82(1)(d) of the Rome Statute had not been met. Id., Partly Dissenting Opinion of Judge Eboe-Osuji, ICC-01/09-01/11-1313-Anx-Corr.

11 Rome Statute, supra note 1, Art. 64(6)(b) (emphasis added).

12 Id., Art. 93(1)(e) (emphasis added).

13 Id., Art. 93(1)(l).

14 The issue famously came to a head in a controversy that arose about whether the International Criminal Tribunal for the Former Yugoslavia had the power to subpoena documents and witnesses. For the ground-breaking and at the time highly controversial Appeals Chamber response, seeProsecutor v. Blaškić, Case No. IT-95-14-AR108 bis, Judgment on Request for Review of Decision of 18 July 1997 (Oct. 29, 1997), at http://www.icty.org/x/cases/blaskic/acdec/en/71029JT3.html.

15 See Sluiter, Göran, “I Beg You, Please Come Testify”—The Problematic Absence of Subpoena Powers at the ICC, 12 New Crim. L. Rev. 590 (2009)Google Scholar; see also Schabas, William A., The International Criminal Court: A Commentary on the Rome Statute 768 (2010)Google Scholar (asserting that “[t]here can be no real doubt that the Rome Statute does not contemplate the compulsory appearance of witnesses, through a mechanism such as a subpoena “).

16 See, e.g., Kreß, Claus & Prost, Kimberly, Art. 93(1)(e), in Commentary on the Rome Statute of the International Criminal Court—Observers’ Notes, Article by Article 1576–77, para. 21 (Triffterer, Otto ed., 2d ed. 2008)Google Scholar.

17 Maliti, Tom, ICC Prosecutor Asks Court to Admit as Evidence Statements of Witnesses Who Recanted, Int’l Just. Monitor (June 4, 2015)Google Scholar, at http://www.ijmonitor.org/2015/06/icc-prosecutor-asks-court-to-admit-as-evidence-statements-of-witnesses-who-recanted/.

18 See Marong, Alhagi B. M. & Jalloh, Charles Chernor, Transfer of Cases Under the Jurisprudence of the ICTR and Lessons Learnt for the ICC, in Promoting Accountability Under International Law for Gross Human Rights Violations in Africa 409 (Jalloh, Charles Chernor & Marong, Alhagi B. M. eds., 2015)Google Scholar.