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

60 Chapter 2
International courts have held differently regarding the immunity of
state officials in respect of subpoenas duces tecum and subpoenas ad
testificandum – where international crimes are at the core of discussion.
This may be observed in the judgments of the Appeals Chamber of the
ICTY in the Blaškić case in 1997 and the Trial and Appeals Chambers of
the SCSL in the Norman, Fofana and Kondewa case. The correct authority
is that which is stated in the Sesay case by the Trial Chamber of SCSL in
2008, the Krštić case by the Appeals Chamber of the ICTY in 2003, the
Trial Chamber of the ICTR in the Bagosora cases, and the Trial Chamber
of the ICTY in the Blaškić case in 1997. These precedents should assist the
ICC in interpreting article 64(6)(b) of the Rome Statute. We may therefore
conclude that state officials are not free from prosecution and the issuance
of subpoenas. They have a duty, like private individuals, to cooperate and
assist international courts. Subpoenas against sitting state officials may
ensure the rights of accused persons and assist in the preparation and
conduct of trials before international courts. As long as there is no
immunity for state officials from prosecution or punishment for
international crimes, there is equally no immunity from subpoenas being
issued against state officials.