The contribution of the Appeals Chamber’s Judgment on witness summons to the debate on the compellability of witnesses before the International Criminal Court

Following a brief recess, today Trial Chamber V (A) at the International Criminal Court will continue to hear the testimony, by video link, of witnesses summoned by the Court in the case against William Samoei Ruto and Joshua Arap Sang. Just over a month ago, the Appeals Chamber unanimously confirmed that unwilling witnesses can be compelled to testify before the Court sitting in situ or by way of video-link.^[1] In particular, the Appeals Chamber affirmed that the Court’s prerogative to “[r]equire the attendance and testimony of witnesses” under Article 64(6)(b) of the Rome Statute creates a legal obligation upon individuals which is complemented by a correlative obligation incumbent upon States, under Article 93(1)(b), to compel witnesses to appear on the territory of the State Party.

The question arose in 2013 when, shortly after the commencement of the trial, a number of witnesses who had previously provided the Prosecutor with crucial information about the role of the accused in the planning of the 2007 Post Election Violence in Kenya became unwilling to testify.^[2] In April this year, in what was hailed as “a dramatic example of judicial activism”^[3] the majority in Trial Chamber V (A) decided that the Court had the power to compel the testimony of witnesses and that Kenya was obliged to serve the summonses and assist in compelling witnesses to appear before the Court in situ or by video link.  On that basis, Trial Chamber V(A) directed the Registry to prepare and submit “the necessary subpoenas”.^[4] Judge Herrera Carbuccia dissented, noting, in particular, that “the Court has no mechanism to make an individual liable for refusing to testify in contravention of a Court order […] [c]onsequently, a fundamental element of subpoena powers is absent”.^[5] Moreover, she held that “[p]ursuant to Article 93 of the Statute, read in its integrity, the Government of Kenya is under no legal obligation to compel a witness to appear before the court, either in The Hague or in situ”.^[6]

The ambiguity stems from the arguably incongruous provisions of the Rome Statute, which have raised some doubts about the precise parameters of the Court’s power to summon witnesses and the concomitant enforcement obligations of States Parties. The first question is whether the Court’s power, under Article 64(6)(b), creates a binding obligation upon individuals. The word “require” has, in itself, cast a doubt upon the intended force of the provision,^[7] particularly since failure to follow such an order is not listed as an offence against the administration of justice under Article 70.^[8]  Trial Chamber V (A) and the Appeals Chamber determined, however, that any order issued under this article has the effect of creating a legal obligation on individuals; this is supported by various translations of the Statute which use the term “order” instead of “require”.^[9] Although both Chambers ultimately relied squarely upon the letter of the Statute, in its analysis the Trial Chamber referred extensively to the Court’s implied powers, as well as general and customary principles of international law, and good faith;^[10] the Appeals Chamber relied solely on the “plain wording” of the Statute.^[11]

The greater difficulty, however, arises less from Article 64(6)(b) taken in isolation and more from the fact that the power it creates appears to be rendered largely ineffective by the absence of any specific provision in the Statute obliging States Parties to compel witnesses to appear before the Court. This is particularly problematic in view of the express provision, under Article 93(1)(e) requiring States to facilitate “the voluntary appearance of persons as witnesses […] before the Court”. This would suggest that witnesses can only appear before the Court voluntarily. The situation is rendered more complex by Article 93(7), which entitles a person already detained on the territory of a State Party to refuse to be temporarily transferred to the seat of the Court for the purpose of testifying.

The apparently conflicting statutory provisions have evoked different responses from commentators.^[12] One interpretation suggests that while the Court can order the appearance of a witness, States cannot be required to deliver witnesses who are not willing to testify.^[13] Some argue that this does not prevent willing States from adopting enhanced forms of cooperation which would compel witnesses to appear to testify,^[14] although there is some disagreement regarding whether they can be compelled to travel to do so.  Others have suggested that the principle of voluntariness applies only to international transfers; that is, while witnesses cannot be forced to travel across borders to testify, they could well be compelled to testify before the Court without travelling. This would mean that Article 93 (1)(e) only applies to the international transfers of witnesses; States could still be obliged to compel witnesses to appear before the Court sitting in situ or by way of video link under the catch-all provision in Article 93(1)(l) which allows the Court to request other forms of cooperation, so long as these do not contravene States Parties’ national laws.

Although this interpretation finds significant support and appears to be consistent with the traveaux preparatoires^[15] it might not be the most obvious one from a plain reading of the Statute. Article 93(1)(e) refers to the voluntary appearance of witnesses “before the Court”, not “at the seat of the Court”. While it could be argued that a video-link between a witness summoned before a national court and the Trial Chamber might not be covered by this restriction, it is not clear that this holds true where the Court is, itself, in control of the proceedings, whether on the territory of a State party or remotely. Would this understanding somehow imply that witnesses appearing directly before the Court, in situ or by video link, are not actually appearing ‘before the Court’?

Divergence is not only limited to the academic commentary on the topic; a questionnaire carried out by the International Law Association’s Committee on the International Criminal Court, prior to the 2010 review conference in Kampala, shows that States Parties not only hold different views on any possible future provisions to directly include subpoena powers in the statute but, more importantly, they appear to have different understandings of the precise parameters of the current provisions.^[16]

Ultimately, both Trial Chamber V (A) and the Appeals Chamber have categorically rejected the notion that under the terms of the Rome Statute, testimonial evidence is governed by a principle of voluntary appearance. Trial Chamber V (A), again broadly relying, inter alia, on implied powers, good faith and complementarity, held that the Court can oblige Kenya to enforce a summons on the basis of Article 93(1)(l).^[17] In its decision, the Trial Chamber also repeatedly referred specifically to the Court’s subpoena powers.

The Appeals Chamber adopted a different, if more cautious, approach. The Appeals Chamber determined that the power of the Court to oblige Kenya to enforce the summons stems directly from Article 93(1)(b) which, inter alia, empowers the Court to oblige States to assist in “the taking of evidence, including testimony under oath” and the production of evidence before the Court. This interpretation of the provision, while not a radical innovation,^[18] requires a fairly creative reading of the Statute. Indeed, the wording of Article 93(1)(b) which refers to assistance in “the taking of evidence” seems to refer to the collection of evidence by States themselves.^[19] That being said, it would appear that some States do, indeed, consider that this interpretation is consistent with their implementing legislation.^[20]

By relying upon Article 93(1)(b), the Appeals Chamber appears to have strengthened the position of the Court. While the chapeau of Article 93 provides that States Parties are to give effect to the requests under the procedures of their national laws, a State is only permitted to refuse compliance in the interests of national security;^[21] on the other hand, under Article 93(1)(l) whenever a State cannot comply with a request due to a “fundamental principal of general application”,^[22] it is entitled to attempt to resolve the matter with the Court. Therefore, by determining that the relevant provision is Article 93(1)(b), and not Article 93(1)(l) as suggested by Trial Chamber V (A), the Appeals Chamber has curbed recourse to national provisions as a way to bypass a summons request which is effectible on the territory of the State.

At the same time, however, the Appeals Chamber deliberately stopped short of declaring that the Statute creates an absolute obligation upon States to compel witnesses to appear at the seat of the Court, limiting its observations to the matter under Appeal, namely the compellability of witnesses appearing before the Trial Chamber sitting in situ or by way of video link.^[23] Moreover, unlike the Trial Chamber, the Appeals Chamber appears to have purposefully avoided using the term subpoena.

In short, while the Appeals Chamber has intentionally shied away from some of the more radical positions taken by the Trial Chamber, it has, nevertheless shaped the interpretation of witness compellability within the Statute’s framework, possibly overstepping the boundaries of mere interpretation. However, it has avoided any pronouncement on a broad, general power to ‘subpoena’ witnesses, thereby steering clear of the the more controversial, unresolved issues related to the involuntary international transfer of witnesses and the absence of any direct coercive powers.

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