Judicial Activism at the ICC

In a dramatic example of judicial activism, a Trial Chamber of the International Criminal Court has issued what will surely be known as the ‘Ruto Subpoena Decision’. It ‘Requires’ the appearance of several witnesses ‘as a matter of obligation’ and ‘Requests the assistance of the Government of Kenya in ensuring the appearance of the witnesses’. The decision is signed by Judges Eboe-Osuji and Fremr. A dissenting opinion is to be filed by Judge Herrera Carbuccia.

Until last week’s decision, most specialists on the law of the Court did not think that such authority lay within the Rome Statute or the Rules of Procedure and Evidence. Indeed, there have been frequent criticisms by scholars about the absence of a subpoena power. Some have called for amendment of the Statute in order to repair this gap. The Prosecutor and the defence lawyers seemed to concur, because in almost a decade of judicial activity none had asked the Court to issue a subpoena.

Now, it seems, the power was there all along. The judgment relies upon a doctrine of implied powers. It relies on rulings of the International Court of Justice concerning implied powers of the United Nations. The Chamber’s argument might have been more compelling had it referred to implied powers rulings of international criminal tribunals or, at least, international human rights tribunals. There is of course some good authority here. In particular, the decision of the European Court of Human Rights, in Mamatkulov and Askarov v. Turkey, on the binding force of a provisional measures decision would seem to be helpful to the Chamber.

The Chamber supports its proposition with reference to the subpoena provisions in the Rules of other international criminal tribunals. In particular in notes such provision in the Rules of the tribunals for Sierra Leone, Lebanon and Cambodia, stating ‘it would require very clear language indeed for the States Parties to the Rome Statute to be taken to have intended that the ICC … should be the only known criminal court in the world (at the international and the national levels) that has no power to subpoena witnesses to appear for testimony’. But the three tribunals in question were created after the Rome Statute. The Chamber's argument works just as well, perhaps better, in the other direction: the drafters of the Rules of those subsequent tribunals made express provision for subpoena power because the Rome Statute suggested that the default position of international law was that no such power lay with an international criminal tribunal.

Most observers of the Rome Conference consider that the absence of an express subpoena power in the Statute was quite intentional. Reference might also be made to the Rules of Procedure and Evidence, where there was an opportunity to correct any ‘oversights’. Probably many delegations at the Rome Conference were reacting to an earlier case of judicial activism. In October 1997, eight months before Rome, the Appeals Chamber of the Yugoslavia Tribunal had issued an order against Croatia (the case is known as the Blaškić Subpoena Decision). They were concerned about intrusions into State sovereignty by activist judges, especially when national security information was concerned. The visible result in the Rome Statute can be found in the feeble text of article 72. The invisible result is probably the lack of a power to subpoena witnesses. That explains why article 93 speaks of States facilitating ‘voluntary appearance’ of witnesses but is silent on forcing them by compulsion to appear.

Understandably, the ruling of the Trial Chmaber is quite dismissive of the relevance of travaux préparatoires. This is quite a huge departure from the case law of the Court, which has generally attached great significance to the preparatory work of the Statute. Several of the judges and many of the academic commentators were participants in the Rome Conference

Perhaps the reason why the issue has not previously arisen is that parties to cases before the Court never felt the need to force a witness to testify. The significance of compulsion to testify is probably overrated. It is a rare occurrence for counsel to force the testimony of an uncooperative or hostile witness. The results are unpredictable and dangerous. Usually, lawyers require a subpoena in order to overcome a legal or contractual obstacle, such as bank secrecy.

The innovation of the Trial Chamber is welcome and exciting. One of the crucial differences between the International Criminal Court and the other international criminal tribunals has been the very complex codification of the law, including the procedural law, applicable to the former. The States that created the Court wanted to make sure they kept a tight grip on its operations. But experience shows that judges find ways to express their creativity, developing the law in unexpected directions. And States are weak, almost powerless, to resist the development of an institution that takes on a life of its own. We can see this phenomenon at the other international criminal tribunals (think of the legendary Tadić Jurisdictional Decision) as well as the international human rights tribunals.

It remains to be seen whether Kenya will comply. Should it refuse, the Chamber can complain to the Assembly of States Parties (art. 87(7)). Then the States Parties that, fifteen years ago, almost certainly resisted the idea of a binding subpoena power will be able to reconsider the matter.

The prosecution of Ruto (and Kenyatta) has been on shaky ground for some time. Is this the final effort by the prosecution to revive a faltering case?