On April 17, 2014, Trial Chamber V(A) approved the request of the Prosecutor in the Ruto and Sang case to subpoena all eight witnesses who recently withdrew from cooperation with the Court. The Chamber decided to allow the request by the Prosecutor, by compelling the attendance of these witnesses. With this decision the Court exercises its functions and fulfills its mandate effectively, which includes the power to subpoena witnesses. The Chamber concluded that the Government of Kenya must cooperate fully by serving the subpoenas to the witnesses, facilitating their compelled attendance at the trial, and ensuring their security until then.
This is the first decision by the Court to consider and allow subpoenas against uncooperative witnesses. By compelling these reluctant witnesses to appear before the Court, the Chamber heeded the initial objective of the Rome Statute State Parties “not to create an ICC that is in terms a substance, in truth a phantom” (ICC Press Release 4/17/14). Rather, the decision supports the aim of the State Parties to “create a court with every necessary competence, power, ability and capability”.
Moreover, some of these witnesses will potentially provide testimonies against Deputy President Ruto and in the trial against President Kenyatta. Therefore, the request for the subpoenas by the Prosecutor shows her determination to push firmly ahead with the Kenya cases despite any skepticism about the Court’s ability to try sitting heads of States. It also demonstrates the clear and unified strategy and tactics employed by the Court in carrying out its central purpose of trying high-ranked state officials.
The subpoenas constitute a strong message that the Court is determined and competent to pursue the prosecution of sitting heads of States, without conceding to their power to intimidate witnesses. In this decision, the Court has established an important precedent in its determination to end the impunity of individuals involved in the commission of atrocities, regardless of their official status.
Written by Laura van Esterik