The competence of the International Criminal Court with regard to witnesses.

Abstract

This research paper examines whether the International Criminal Court has the competence to compel the appearance of witnesses before it, and if the States Parties to the Rome Statute have an obligation to serve and enforce a witness summons issued by the Court. In December 2013 the Office of the Prosecutor requested the International Criminal Court to summon witnesses and ascribed to the Court the power to order some States Parties to enforce witness summonses. The defence counsel in the particular case and the Kenyan government, the requested State Party, opposed the request. In April 2014 Trial Chamber V (A) of the International Criminal Court delivered a decision on that matter in which it found that it had indeed the power to compel witnesses and to order Kenya to enforce the summonses. The decision was confirmed on appeal in October 2014. This paper analyses the issue with reference to the decision of the Trial Chamber, the judgement of the Appeals Chamber, and the assertions by the parties in the present case. It also introduces other approaches on how to deal with this issue. The paper essentially analyses the text of the Rome Statute, the history of its drafting, and compares the enabling laws and jurisdictional competence of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone with regard to the theme under discussion. The paper furthermore analyses how the domestic laws of some states deal with the matter. Finally it examines the measures that the ICC can implement to enforce its orders.