On Friday (February 14), the Trial Chamber in the Ruto and Sang case at the International Criminal Court (ICC) will hear oral argument on a prosecution motion that could have significant consequences both for the case and the institution. The prosecution is asking the Trial Chamber to request the Government of Kenya (GoK) to serve summonses on seven witnesses in Kenya who are refusing to come to The Hague to testify, and to ensure, by compulsion if necessary, that they appear at a designated location in Kenya to testify in the trial by video link (or before the Trial Chamber sitting in situ, though video link seems more likely).  The defense (here and here) and the GoK oppose the motion, the Rome Statute does not explicitly address the prosecution’s request, and scholars are divided on the issue.  So who has the better argument?

It is standard in national criminal investigations for the prosecutor or investigative judge to have the power to compel witnesses to provide evidence in the investigation or trial phase, barring some recognized privilege held by the witness (such as the right not to self-incriminate oneself).  Witnesses may have all sorts of reasons to avoid testifying in a criminal case, but the interest of society and of the accused to resolve criminal cases with all available evidence ordinarily overrides a witness’s “desire” not to cooperate, assuming of course that the witness’s security can be assured. In its own national system, Kenya itself allows for the compulsion of witnesses in criminal cases pursuant to Sections 144-149 of the Criminal Procedure Code.

The situation with the ICC is more complicated.  Article 64(6)(b) gives the Trial Chamber the authority to “[r]equire the attendance and testimony of witnesses … by obtaining, if necessary, the assistance of States as provided in this Statute.”  Since this provision is limited by what is “provided” in the Statute, we must look at Article 93, which sets forth the ways in which States Parties are obligated to cooperate with the Court.  Specifically, Article 93(1)(e) requires States to “[f]acilitat[e] the voluntary appearance of persons as witnesses or experts before the Court.” This language is in keeping with standard practice between states, where states are ordinarily not required to compel witnesses to appear in a court of another state.  The records of the preparatory meetings leading to the adoption of the Rome Statute indicate that the provision was added to insure that states would not be obliged to ship witnesses across international borders to The Hague to testify.

So does that end the matter? No. Article 93 also contains a catch-all, residual clause in section (1)(l) which requires States Parties to provide “[a]ny other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.” The prosecution convincingly argues that under this provision, the Trial Chamber can ask the GoK to compel witnesses to appear in the trial from Kenya by video link or before the Trial Chamber sitting in situ. There is nothing in the law of Kenya that prohibits this request, and therefore use of Article 93(1)(l) is proper.

The defense claims that Article 93(1)(e) fully addresses the matter of States Parties’ obligations with respect to witness testimony and indicates that such testimony must be voluntary, and that therefore Article 93(1)(l) – which applies only to “any other type of assistance” – does not come into play.  But that argument fails. There is a clear distinction between requiring a state to bring a witness across an international border to testify in a court and requiring that state to make the witness available to testify by video link, a distinction that is underscored by certain state practice.  Numerous mutual legal assistance arrangements do not require physical transport, but do require or offer as an alternative appearance by video link. For example, the 29 May 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union obligates states to make witnesses available by video link, by compulsion if necessary, so long as the request is consistent with the laws of the requesting and requested states.  Because of this clear distinction in state practice, it cannot be said that Article 93(1)(e), aimed at the physical transport of witnesses, also addresses their participation by video link.

In addition, the defense’s interpretation renders Article 64(6)(b) meaningless. As noted above, that provision empowers Trial Chambers to “require the attendance and testimony of witnesses,” but if, as the defense claims, any participation of witnesses in the trial must be voluntary, then the Trial Chamber is unable to “require” anything and the provision has no force. The provisions of the Statute should be interpreted to give them all meaning.

Further, requiring States Parties to make witnesses available by video link will not infringe on their sovereignty. Crucially, Article 93(1)(l) contains an opt-out clause. If states do not want to provide a particular form of cooperation that is not included in the mandatory parts of Article 93, it can simply adopt legislation prohibiting such cooperation.  Kenya has not done so, even though when it adopted the International Crimes Act of 2008, which domesticates the Rome Statute and regulates cooperation with the ICC, the possibility of compelled video link testimony was well-known.  In fact, section 86 of the International Crimes Act provides that when the ICC requests assistance pursuant to Article 64 of the Rome Statute, the Attorney General of Kenya “shall” authorize the service of a summons “requiring a person to appear as a witness.” The defense further complains that if the video link option is found in Article 93(1)(l), it will not be available uniformly if some states prohibit it. But that is true of all requests made under that provision, and therefore is not a reason to reject any particular request.

At the end of the day, the prosecution’s request is supported by the plain language of the Statute, its history, and the context of state practice.  The Trial Chamber will be on strong grounds if it endorses it, and it should interpret the Statute to make the Court as effective as possible in pursuit of its mission. It is already well-known that the ICC suffers from a lack of resources and effective tools.  There is no good reason for the Trial Chamber to further constrain the Court by eliminating any possibility of compelling witnesses, a tool relied upon by most national courts.  A decision in favor of the prosecution’s request could make available important evidence in the Ruto and Sang case, and would set an important precedent for the Court for the future.