Trial Chamber Finds Power to Compel Witnesses is an “Implied Power” of the ICC

In an important victory for the Office of the Prosecutor at the ICC, the Ruto Trial Chamber, by majority, today issued subpoenas for eight prosecution witnesses for the prosecution and requested the Government of Kenya (GoK) to enforce the subpoenas, by compulsion if necessary.  The eight witnesses reside in Kenya and are no longer willing to appear voluntarily.  The Trial Chamber requested the GoK to ensure the appearance for testimony of the witnesses to testify either by video-link or in Kenya (presumably before the judges sitting in situ).  I previously wrote about the arguments of the parties here.

The Trial Chamber found that the power to compel witnesses is an “implied power” of the ICC – critical for it to perform its “essential functions” – that is not expressly foreclosed by the Rome Statute.  If witnesses were completely free to withdraw their cooperation at any moment in the process, as the defense urged, the Court would be unable to “effectively discharge” its function. In this part of the decision, the Trial Chamber offers a robust vision of an ICC actually empowered to do its job of ensuring accountability for core international crimes.

In addition, the Trial Chamber found that the Rome Statute expressly provides for compelling witnesses in article 64(6)(b), which states that “the Trial Chamber may … [r]equire the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute.”  Although article 93(1)(e) requires States Parties to “facilitate[] the voluntary appearance of persons as witnesses or experts before the Court,” article 93(1)(l) also requires those States Parties to comply with “[a]ny other type of assistance which is not prohibited by the law of the requested State.” Since Kenyan law does not prohibit witness subpoenas and measures of compulsion to enforce them, the Rome Statute requires the GoK to serve and enforce the requested subpoenas in this case.

Judge Herrera Carbuccia dissented from the decision and will file an opinion in due course. No doubt the defense will seek leave from the Trial Chamber to appeal. If the decision stands, it will represent a courageous and significant step for the powers of the Court.  The Court’s limited investigative powers and reliance on state cooperation already render effective investigations and prosecutions difficult.  Recognizing a power to compel witnesses to testify in particular circumstances would at least give the Court an additional tool with which to do its work.  And in the end, as the Trial Chamber itself noted, both the prosecution and the defense (who presumably share an interest in uncovering the truth) will benefit, as both will be able to avail themselves of the power to compel. 

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Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).