"I Beg You, Please Come Testify"—The Problematic Absence of Subpoena Powers at the ICC

Abstract

The Review Conference on the ICC Statute, which takes place in 2010, offers the first opportunity to repair some of the defects in that instrument. This paper considers the absence of subpoena powers in respect of witnesses as one of the biggest threats to an effective functioning of the ICC. It is demonstrated that the absence of such subpoena powers follows clearly from the ICC Statute and was a deliberate choice during the negotiations, representing a compromise between states against and in favor of a powerful Court. It is submitted that the absence of subpoena powers even entails under the Statute a nonderogable right for witnesses not to appear at the Court. As a result of this, both the quality of fact-finding and the accused's right to a fair trial are seriously jeopardized. The paper proposes as a solution a number of recommendations to the Statute.