CYIL vol. 7 (2016)

343

CYIL 7 ȍ2016Ȏ

APPLICABLE LAW, INTERPRETATION, INHERENT AND IMPLIED POWERS…

Introduction

It is widely known that investigation into the situation in Kenya, which was

authorized by the ICC in 2009, has been severely undermined by witness interference,

lack of cooperation on the part of Kenya and politicization of the whole judicial

process. A number of witnesses who had agreed to testify against accused persons

were intimidated and subsequently withdrew their cooperation with the ICC.

In this hostile climate, the Trial Chambers (TCH) have no other option than to

terminate both original Kenyan cases – the

Kenyatta

case in March 2015 following

the withdrawal of charges by the OTP

and the

Ruto and Sang

case in April 2016

following the finding that there is no case to answer for both accused persons.

Both Kenyan cases reveal how dependent the ICC is on proper cooperation from

States and how easily the prosecutorial effort can be drowned, which sends a rather

displeasing message for all victims and supporters of international criminal justice.

During the course of the proceedings the chambers adopted decisions that

endeavored to counterbalance lack of cooperation from Kenya. The article presented

focuses on two such decisions rendered in the

Ruto and Sang

case: (a) the subpoena

decision,

and (b) the decision on defence applications for judgment of acquittal (the

termination decision).

Both decisions touch upon wider theoretical and conceptual

issues, such as the hierarchy of law applicable before the ICC, its interpretation, and

the doctrines of inherent and implied powers.

In the subpoena decision, the TCH granted the Prosecutor’s request to summon

eight witnesses to testify in the Ruto and Sang trial. Facing severe intimidation, all

these witnesses, originally cooperative with the ICC, either recanted or were no

longer willing to testify.

In the light of this situation, the TCH decided that it has the

power to order witnesses to appear before it to give testimony in pending proceedings

(e.g. via video link), which imposes legal obligations on the individuals concerned to

comply.

At the same time, the TCH inferred that a State Party to the ICC Statute

is under legal obligation to assist the Court in compelling any witness in Kenya

who is a subject of subpoena to appear before the TCH.

In its legal reasoning the

TCH relied on the doctrine of implied powers, principles of customary international

criminal procedural law, and the general rule of good faith in the application and

interpretation of international treaties. Only after that the TCH invoked an explicit

Kenyatta

, ICC-01/09-02/11-1005, TCH V(B), 13 March 2015.

Ruto and Sang

, ICC-01/09-01/11-2027, TCH V(A), 5 April 2016.

Ruto and Sang

, ICC-01/09-01/11-1274, TCH V(A), 17 April 2014.

Termination decision,

cf. supra

footnote 2.

JALLOH, Charles. Prosecutor v. Ruto. Case No. ICC-01/09-01/11. Appeals Judgment on Witness

Summonses.

American Journal of International Law

. 2015, vol. 109, no. 3, pp. 610-611.

Subpoena decision, § 61

et seq

Ibid.

, § 102.