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

52 Chapter 2
conduct of trial’. 103 The ICTR has emphasised that states, as well as their
officials, may be compelled to testify before international courts. 104 In fact,
the ICTR has issued a subpoena against the Rwandan Defence Minister in
which it held that ‘[g]overnment officials enjoy no immunity from the
normal legal processes available to compel the testimony of private
individuals. It makes no difference whether the official’s knowledge was
obtained in the course of official duties or not ...’. 105 In line with this
position, the ICTR has also gone a step further in ordering state officials to
appear before it. For example, in 2006 the Trial Chamber issued a
subpoena for Mr Ami Mpungwe, a Tanzanian ambassador, to appear
before it during a trial session. 106 It should be understood that the ICTR
has even issued subpoenas to international organisations such as the
UNHCR. 107 Hence it may be said that state officials are not immune from
subpoenas before the ICTR, in line with the requirements under
international criminal law.
It may therefore be concluded that the jurisprudence of international
courts indicates that subpoenas may be issued against serving state
officials. The decisions of the Appeals and Trial Chambers of ICTY in
Krštić and Blaškić, the ICTR’s emphatic position in the Bagosora cases, the
dissenting opinions of judges of the SCSL in the Norman, Fofana and
Kondewa cases, and the decision in Sesay, are useful authority for this.
These decisions may be used by the ICC in interpreting article 64(6)(b) of
the Rome Statute progressively, in line with demands of international
criminal law. The ICC should adopt this approach in the cases before it
because state officials have a duty to assist international courts prosecuting
international crimes. Subpoenas against state officials would guarantee
rights for accused persons, help in the preparation and conduct of trials
expeditiously and ensure equality of arms for both the prosecution and the
accused.
103 Prosecutor v Bagosora Decision on request for a subpoena for Major J Biot paras 3-4,
citing Prosecutor v Krštić Appeal Decision of the ICTY Appeals Chamber para 27,
quotations omitted.
104 Prosecutor v Bagosora et al Decision on Kabiligi Motion for Cooperation of the
Government of France and Subpoena of Former Officers, Trial Chamber I, 31 October
2006 para 2 (quoting Prosecutor v Bagosora et al Decision on Bagosora Defence Request
for Subpoena of Ambassador Mpungwe and Cooperation of the Government of the
United Republic of Tanzania, Trial Chamber, 26 August 2006 para 2).
105 Prosecutor v Bagosora et al Decision on Request for a Subpoena, Trial Chamber I, 11
September 2006 para 4 (referring to Prosecutor v Krštić Decision on Application for
Subpoenas (AC), 1 July 2003 para 27); Prosecutor v Milošević Decision on Assigned
Counsel Application for Interview and Testimony of Tony Blair and Gerhard Schröder
(TC) para 30).
106 Prosecutor v Bagosora et al Decision on Request for Subpoena of Ami R Mpungwe para 6.
107 Prosecutor v Bagosora et al Decision on Ntabakuze Motion for Information from the
UNHCR and a Meeting with one of its Officials Trial Chamber I, 6 October 2006 para
6.