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ONDŘEJ SVAČEK
CYIL 7 ȍ2016Ȏ
provision of the ICC Statute, namely its Article 64(6)(b).
8
The TCH decision
was confirmed by the Appeals Chamber (ACH), which nevertheless corrected
the methodology of the TCH – the ACH ruled that there were no lacunae in the
interpretation of the Statute requiring resort to the doctrine of implied power or
customary international law, as the power to compel the appearance of witnesses
arises out directly from Article 64(6)(b) of the Statute.
9
The termination decision is no less interesting. By a 2-1 majority, after the
Prosecutor closed her case, the TCH decided that the charges against the accused are
vacated and the accused discharged without prejudice to their prosecution afresh in
future.
10
This conclusion is troublesome as there is no explicit legal basis for vacation of
charges with possible re-prosecution in the Rome Statute once the trial has been
opened – the only possible outcome of the proceedings when guilt of the accused
is not proved beyond reasonable doubt [Article 66(3) of the ICC Statute]) is
a judgment of acquittal, which implies
ne bis in idem
prohibition – no person shall
be tried before the Court with respect to conduct which formed the basis of crimes
for which the person has been convicted or acquitted by the Court [Article 20(1)
of the ICC Statute]. Nevertheless, besides the conviction and acquittal, the TCH
V(A) has invented another possibility for how the trial can be terminated. As Judge
Eboe-Osuji put it in his opinion, ‘[w]here there have been conducts in the nature
of obstruction of justice, such as troubling incidences of interference with witnesses
or undue meddling from an outside source that is capable of prejudicial impact on
the case, it should be a proper discretion of the Trial Chamber to declare a mistrial
without prejudice.’
11
The aim of this article is to find out the legal basis for both subpoena of witnesses
and mistrial without prejudice.
1. Theoretical Background
Both decisions are commented on with reference to their theoretical underpinnings:
interpretation of the Rome Statute and the hierarchy of law applicable before the ICC
(1.1) and the doctrines of inherent and implied powers (1.2).
8
The statutory regulation provides: In performing its functions prior to trial or during the course of
a trial, the Trial Chamber may, as necessary: […] (b) Require 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.
9
Ruto and Sang
, ICC-01/09-01/11-1598, ACH, 9 October 2014, § 105, 106.
10
Termination decision, p. 1.
11
Termination decison, Reasons of Judge Eboe-Osuji, § 7. Judge Fremr declined to use the term mistrial;
nevertheless he found ‘it appropriate to leave open the opportunity to re-prosecute the accused, should
any new evidence that was not available to the Prosecution at the time of the present case warrant such
a course of action.’ Termination decision, Reasons of Judge Fremr, § 148.