Prosecuting International Crimes in Africa - PULP - University of ...

46 Chapter 2
from prosecution before foreign national courts. 71 Arguably, the decision
of ICJ disregards the customary international law duty of states to
prosecute and punish perpetrators of international crimes, regardless of
their official capacity.
The next section examines the uncertainty regarding the immunity of
state officials who are subpoenaed to testify (subpoena ad testificandum) or
produce evidence (subpoena duces tecum) before international courts.
4.2 Immunity of state officials and the question of subpoenas
When state officials are required to appear before international courts to
testify or produce evidence, international courts have not been consistent
in granting the applications of accused persons or prosecutors to compel
state officials to appear before such courts. The appearance of individuals
may be sought by voluntary attendance or appearance as envisaged under
the Rome Statute. 72 When a person fails to voluntarily appear in court, the
prosecutor may apply for an order of the court to compel such a person to
appear under article 64(6)(b) of the Rome Statute. Subpoenas are also
recognised by the Rules of Procedure and Evidence of the ICTY and ICTR
respectively. 73 If persons do not comply with such court orders they may
be held in contempt of court.
If individuals voluntarily appear before court they waive their
immunity by means of the operation of estoppel. The question of
immunity would not arise in the case of these individuals. The position is
different when individuals refuse to appear before international courts on
the ground of immunity. The concern here is non-compliance with
voluntary appearance leading to compulsory court orders summoning
individuals, including state officials to appear and testify or produce
evidence in court. The question is now raised: does immunity extend to
subpoenas and other court processes? The issue of subpoenas arise especially
when state officials are required to testify against their subordinates or
other accused persons before international courts, or when state officials
are to produce evidence in courts to assist the court in conducting or
expediting trials.
International courts have arrived at different interpretations on
whether the immunity of state officials extends to the issuance of a
subpoena to testify or produce evidence. 74 The Trial and Appeals
71 Arrest Warrant case (n 23 above) para 61; Congo v France (n 22 above) 102 paras 1 and 28;
Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v
Senegal) Request for the Indication of Provisional Measures Order of 28 May 2009, ICJ
General List 144.
72 Art 58(1) and (7) Rome Statute.
73 Rule 54 Rules of Procedure and Evidence of the ICTY and ICTR; Rule 54 Rules of
Procedure and Evidence of the SCSL; Rule 84 Internal Rules of the ECCC.
74 On subpoenas, see A Cassese International criminal law (2008) 308-313.