Situation: Situation in the Republic of Kenya
The Prosecutor v. William Samoei Ruto and Joshua Arap Sang
Today, 17 April 2014, Trial Chamber V(A) of the International Criminal Court (ICC) granted, by majority, the Prosecutor’s request to subpoena eight Kenyan witnesses to appear before the Trial Chamber in the trial of the case against Samoei William Ruto and Joshua Arap Sang.
According to the Prosecution, those eight witnesses are now no longer cooperating or have informed the Prosecution that they are no longer willing to testify. Before rendering the decision, the Chamber received written and oral observations from the Defence counsel, the legal representative of victims, and the Attorney-General of Kenya. In their decision, the Chamber decided, by majority, to grant the request to compel the attendance of the witnesses.
The Chamber considered that the decision was amply supported by both general international law and the provisions of the Rome Statute, to the effect that the Rome Statute States Parties did not intend to create an ICC that is ‘in terms a substance, in truth a phantom’. Rather, they must be presumed to have created a court with every necessary competence, power, ability and capability to exercise its functions and fulfil its mandate in an effective way. These include the power to subpoena witnesses. In that connection, the Chamber found that there is unity among international law, the Rome Statute, the Constitution of Kenya and the laws of Kenya concerning its dealings with the ICC.
In the result, the Chamber found that the Government of Kenya has an obligation to cooperate fully with the Court: by serving the subpoenas to the witnesses and by assisting in compelling their attendance before the Chamber, by the use of compulsory measures as necessary.
Trial Chamber V(a) directed the Registry of the Court to prepare and transmit a cooperation request to the Republic of Kenya for: (i) the service of summonses by the Government of Kenya on these eight witnesses, (ii) assistance in compelling and ensuring the eight witnesses’ appearance before the Chamber by video-link or before the Chamber convened on the territory of Kenya and (iii) the Government of Kenya to make appropriate arrangements for the security of the eight witnesses until they appear before the Court.
Background: Mr Ruto and Mr Sang are accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in Kenya in the context of the 2007-2008 post-election violence. Opening statements were made on 10 September before the ICC Trial Chamber V(a).
The ICC is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes.
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Decision on Prosecutor's Application for Witness Summonses and resulting Request for State Party Cooperation
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