360 / 536
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CYIL 7 ȍ2016Ȏ
in the drafting history of Article 64(6)(b) of the Statute that would suggest that
the drafters intended that the ICC should not have the power to order witnesses to
appear before it).
18
Finally, the ICC excluded application of the principle of legality
– the defence argued that the absence in the Statute of any sanction in a case of non-
compliance shows that the Court has no power to compel a witness to appear before
it – as this principle refers to conduct constituting a crime within the jurisdiction
of the Court.
19
The TCH opined that a witness’s refusal to comply with an order to
appear before the Court would constitute, at most, misconduct within the meaning
of Article 71 of the Statute, but definitively not a crime. This line of reasoning is
persuasive, all the more so that no provision of the ICC Statute is disregarded or
rendered void and no human rights of the accused are affected.
The subpoena decisions issued in the
Ruto and Sang
case are significant
contributions to the law of the ICC; they settled a sharply divided academic debate
whether the Court can compel the attendance of witnesses and whether corresponding
obligation on part of the State Parties exists to enforce this attendance.
20
The answer
is in the affirmative.
The legal basis of the termination of a proceeding with possible re-prosecution
(mistrial) is far less evident. Both Judge Fremr and Judge Eboe-Osuji referred in their
reasoning to Article 64(2) of the Rome Statute.
21
This provision provides a general
obligation of the TCH to ensure that a trial is fair and expeditious; at the same time
it requires respecting the rights of the accused (and regard to protection of victims
and witnesses). It is therefore logical for the TCH, if there is no case to answer for
the accused, to terminate the case – this procedural step would fully respect the
rights of the accused provided in the Rome Statute, be it the fundamental right to
a presumption of innocence (Article 66) and right to be tried without undue delay
(Article 67). Nevertheless, this concordance between the general obligation to secure
the fairness and expeditiousness of the trial and the requirement of respect towards
the rights of the accused, inferable from grammatical interpretation of Article 64(2),
18
Ibid.
, § 107-108.
19
Ibid.
, § 109-110.
20
It is is enough to mention the opposing opinions presented in leading commentaries to the Rome
Statute.
Cf
. SCHABAS, William.
The International Criminal Court: A Commentary on the Rome Statute
.
Oxford: OUP, 2010, p. 768. According to Schabas, ‘there can be no real doubt that the Rome Statute
does not contemplate the compulsory appearance of witnesses through a mechanism such as a subpoena.’
For a completely opposite opinin
cf.
KREß, Claus, PROST, Kimberly. In: TRIFTERRER, Otto
.
Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article
.
2
nd
edition. München: Beck/Hart, 2008, p. 1576-77. The only limitation is that the ICC cannot force
any witness to travel to The Hague; i.e. testimony will be usually given on the territory of the State.
21
Termination decision, Reasons of Judge Fremr, §§ 145-146. Termination decision, Reasons of Judge
Eboe-Osuji, §§ 126-130. This provision had been widely used in previous decision on principles and
procedure on no case to answer motions.
Cf
.
Ruto and Sang
, ICC-01/09-01/11-1334, TCH V(A),
3 June 2014, § 16.