ICC appellate judges say witnesses must testify

October 9, 2014 3:51 pm
Judge Akua Kuenyehia, Presiding Judge on these appeals, read the summary of the judgment.
Judge Akua Kuenyehia, Presiding Judge on these appeals, read the summary of the judgment.

, NAIROBI, Kenya, Oct 9 – The International Criminal Court (ICC) Appeals Chamber has affirmed the Trial Chamber V(a) decision to summon nine witnesses in the trial against Deputy President William Ruto and journalist Joshua arap Sang.

The ruling comes after four of the nine witnesses testified following an agreement between the Government of Kenya and the International Criminal Court. During an open court session, Judge Akua Kuenyehia, Presiding Judge on these appeals, read the summary of the judgment.

“The appeal chambers finds that article 64(6)(b of the statute gives to a trial chamber the power to compel a witness before it thereby creating a legal obligation for individuals who are concerned. Accordingly the Trial Chamber did not error when it concluded that it was vested with such powers,” she ruled. “The first ground of appeal is therefore rejected.”

The four are among the nine witnesses who recanted their evidence or told the court they were no longer willing to testify before the ICC.

The court also ruled that trial judges can require a State Party to compel unwilling witnesses to testify before the court after the defence teams of Ruto and Sang also challenged a decision made by the Trial Chamber in which Kenya was directed to compel nine witnesses to testify.

“The appeal chamber finds no error Trial chamber finding that Kenya is obliged to co-operate in compelling the appearance of witnesses before the court either sitting in situ or by way of video link,” she affirmed. “For the reasons referred to, the appeal chamber determines that no appealable errors have been identified. The appeal chamber therefore confirm the impugned decision,” she stated.

With that decision, the Trial Chamber required witnesses to appear before it, sitting in situ (in person) or by way of a video-link, and found that Kenya was under an obligation to facilitate the witnesses’ appearance, if necessary by way of compulsory measure.

The judge explained that, in the view of the Appeals Chamber, article 64(6)(b) of the Rome Statute expressly gives Trial Chambers the power to compel witnesses to appear before it, thereby creating a legal obligation for the individuals concerned.

The Appeals Chamber concluded that there was no error in the Trial Chamber’s decision and confirmed it on appeal.
On 17 April, Trial Chamber V(a) granted the Prosecutor’s request to summon witnesses who were no longer cooperating or no longer willing to testify.

The Government of Kenya was requested to assist in serving the summonses to the witnesses. On 5 June, Ruto and Sang’s Defence teams appealed the Trial Chamber V(a) decision.

On 17 June, the Appeals Chamber rejected the Defence’s request for suspensive effect, meaning that the appeals procedure did not impact the course of the trial hearings at this stage or the testimony of summoned witnesses.

This decision was without prejudice to the Appeals Chamber’s judgment on the merits of the ongoing appeals.

On 1 September, the first witness summoned to appear attended the hearing before the Trial Chamber V(a), and four of the nine have testified to date.

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