CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ APPLICABLE LAW, INTERPRETATION, INHERENT AND IMPLIED POWERS… Introduction It is widely known that investigation into the situation in Kenya, which was authorized by the ICC in 2009, has been severely undermined by witness interference, lack of cooperation on the part of Kenya and politicization of the whole judicial process. A number of witnesses who had agreed to testify against accused persons were intimidated and subsequently withdrew their cooperation with the ICC. In this hostile climate, the Trial Chambers (TCH) have no other option than to terminate both original Kenyan cases – the Kenyatta case in March 2015 following the withdrawal of charges by the OTP 1 and the Ruto and Sang case in April 2016 following the finding that there is no case to answer for both accused persons. 2 Both Kenyan cases reveal how dependent the ICC is on proper cooperation from States and how easily the prosecutorial effort can be drowned, which sends a rather displeasing message for all victims and supporters of international criminal justice. During the course of the proceedings the chambers adopted decisions that endeavored to counterbalance lack of cooperation from Kenya. The article presented focuses on two such decisions rendered in the Ruto and Sang case: (a) the subpoena decision, 3 and (b) the decision on defence applications for judgment of acquittal (the termination decision). 4 Both decisions touch upon wider theoretical and conceptual issues, such as the hierarchy of law applicable before the ICC, its interpretation, and the doctrines of inherent and implied powers. In the subpoena decision, the TCH granted the Prosecutor’s request to summon eight witnesses to testify in the Ruto and Sang trial. Facing severe intimidation, all these witnesses, originally cooperative with the ICC, either recanted or were no longer willing to testify. 5 In the light of this situation, the TCH decided that it has the power to order witnesses to appear before it to give testimony in pending proceedings (e.g. via video link), which imposes legal obligations on the individuals concerned to comply. 6 At the same time, the TCH inferred that a State Party to the ICC Statute is under legal obligation to assist the Court in compelling any witness in Kenya who is a subject of subpoena to appear before the TCH. 7 In its legal reasoning the TCH relied on the doctrine of implied powers, principles of customary international criminal procedural law, and the general rule of good faith in the application and interpretation of international treaties. Only after that the TCH invoked an explicit 1 Kenyatta , ICC-01/09-02/11-1005, TCH V(B), 13 March 2015. 2 Ruto and Sang , ICC-01/09-01/11-2027, TCH V(A), 5 April 2016. 3 Ruto and Sang , ICC-01/09-01/11-1274, TCH V(A), 17 April 2014. 4 Termination decision, cf. supra footnote 2. 5 JALLOH, Charles. Prosecutor v. Ruto. Case No. ICC-01/09-01/11. Appeals Judgment on Witness Summonses. American Journal of International Law . 2015, vol. 109, no. 3, pp. 610-611. 6 Subpoena decision, § 61 et seq . 7 Ibid. , § 102.

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