Sylvia Ngane is a doctoral candidate and Graduate Teaching Assistant at the School of Law, University of Leeds, UK. Her article “Witnesses Before the International Criminal Court” is published in (2009) 8 Law and Practice of International Courts and Tribunals 431-457.
Editor’s Note: In a decision issued on the same day this piece was posted, the Special Court for Sierra Leone upheld the Prosecution’s request and directed the Prosecutor to call Naomi Campbell as a witness.
In May of this year, the trial of Charles Taylor at the Special Court for Sierra Leone (SCSL) took a dramatic twist, when prosecutors requested the judges, to issue a subpoena to supermodel Naomi Campbell requiring her appearance before the Chambers. On the same day, the SCSL Prosecutors made an application that they be allowed to reopen their case, which was closed in February 2009, or bring evidence in rebuttal against Taylor by calling three additional witnesses, Campbell, Carole White and Mia Farrow. Campbell is required to testify as a witness about a diamond gift she allegedly received from Taylor in South Africa in 1997. Rule 54 of the SCSL Rules of Procedure and Evidence which is the applicable statutory provision for granting subpoenas, provides that: ‘At the request of either party or of its own motion, a judge or a Trial Chamber may issue such orders, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial’
The judges will grant a subpoena if it is ‘necessary’ to bring to court an unwilling but important witness. In the Taylor case, the Prosecution submits that Campbell’s testimony is necessary as it concerns a central issue in the case, the Accused possession of rough diamonds. They argue that her evidence is highly probative and material to the Indictment since it is direct evidence of the Accused’s possession of rough diamonds from a witness unrelated to the Liberian or Sierra Leone conflicts. According to the Prosecution, this corroborates Prosecution evidence that the Accused received diamonds from the Armed Forces Revolutionary Council (AFRC), the military junta, which in partnership with Revolutionary United Front (RUF) rebels, ruled Sierra Leone in 1997 during the Indictment period. In addition, Campbell’s anticipated evidence supports the Prosecution allegations that the Accused used rough diamonds for personal enrichment and arms purchases for Sierra Leone, particularly during the AFRC/RUF period.
The SCSL Prosecutor alleges that Campbell is a very important witness in the case, she is unwilling to testify and they need judicial intervention in the form of subpoena to compel her to provide testimony. As the actual recipient of the Accused’ gift of diamonds, she is clearly in a position to provide material evidence about this event. The Prosecution states that its repeated efforts to interview Campbell about the event have been unsuccessful and she has given public statements that she does not want to be involved in the case (paras.3, 14-18). For example, Campbell stated in the Oprah show, ‘I don’t want to be involved in this man’s case he has done some terrible things and I don’t want to put my family in danger’ . See Naomi Campbell Tells Oprah She Fears For Her Family – ABC News The prosecution team also provide evidence that Taylor attended a dinner for the Nelson Mandela Children’s Fund in which Campbell and various celebrities, including Farrow, were present. Farrow confirmed to the Prosecution that she attended the dinner party which took place at Mandela’s residence and recalled:
“The next morning when the other guests, my children and I met for breakfast, Naomi Campbell was there and had an unforgettable story. She told us the [sic] she had been awakened in the night by knocking at her door. She opened the door to find two or three men – I do not recall how many- who presented her with a large diamond which they said was from Charles Taylor.’
The lawyer of Carol White explained to the prosecution team that White was with Naomi Campbell at Mandela’ s residence in September 1997, and had information about the diamonds that Taylor had given to Ms. Campbell. The Prosecution further interviewed White and obtained the statement she personally heard Taylor say that he wanted to give diamonds to Campbell and she personally saw the diamonds delivered to Campbell by men on behalf of Taylor (see here at paras. 11 – 12).
The SCSL provides protective measures for all witnesses who testify, Article 15 of the Agreement between the United Nations (UN) and the Government of Sierra Leone provides that witnesses appearing from outside Sierra Leone on a summons or a request of the judges or the Prosecutor shall not be prosecuted, detained or subjected to any restriction on their liberty by the Sierra Leonean authorities. They shall not be subjected to any measure which may affect the free and independent exercise of their functions. The provisions of Article 14, paragraph 2 (a) and (d), shall apply to them.In addition Article 16(4) of the SCSL Statute provides that the Witness and Victims Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, who appear before the Court and others who are at risk on account of testimony given by such witnesses. Pursuant to Rule 75(A) evidentiary procedures further help those who will testify by enabling the judge to “order appropriate measures to safeguard the privacy and security of witnesses, provided that the measures are consistent with the rights of the accused.” Theoretically the above provisions provide assurances that neither Campbell nor family will be at risk as a result of her testimony to the SCSL.
If the Judges grant the prosecution request, the question will be how to get Campbell to come to the Court to testify? These tribunals do not have police forces to execute their orders; therefore, to ensure that the subpoena is served and executed the Court will rely on State cooperation. Rule 8 (C) provides that ‘The Special Court may invite third States not party to the Agreement to provide assistance on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis’. It may be argued that UN Security Council (UNSC) Resolution 1688 (2006) provides an “appropriate basis” for assistance. Paragraph 4 encourages all States to ensure that any evidence or witnesses are, upon the request of the Special Court, promptly made available to the Special Court for the trial of Charles Taylor.
Therefore the Registrar may seek the assistance of the country where Campbell is residing working or visiting to ensure that she appears at the time and place indicted in the subpoena. Countries such as the United Kingdom (UK), United States (US) and France will be required to provide their assistance in this case. The UK for instance has signed an agreement with the SCSL to enforce sentences imposed by the SCSL (see here ). It is important that any State where Campbell is found should ensure the order is executed in order that the witness provide testimony which is material to the case and may likely bring justice to the victims in Sierra Leone. If Campbell finds herself in the Netherlands, the government is to enable her appearance under the same conditions and procedures applicable to the ICTY (Res. 1688 Para 8 (c)).
Importantly, if Campbell refuses to comply with the subpoena, this may trigger criminal proceedings against her for contempt of court. Pursuant to Rule 77(A) of SCSL RPE the SCSL in the exercise of its inherent power may punish for contempt any person who knowingly and willingly interferes with its administration of justice including any person who: (iii) without just excuse fails to comply with an order to attend before or produce documents before the Court’. If convicted of contempt she will be liable to a sentence of imprisonment or a fine. (Rule 77(G). In ICTY case of Prosecutor v. Haradinaj et al. (Trial Judgment) the judges issued eighteen subpoenas for prosecution witnesses who had refused summonses to testify even with their identity concealed, and were warned of contempt proceedings against them. Some of these witnesses were indicted for contempt of Court and the judge’s issued arrest warrants accompanying these indictments. Again, the tribunals rely on the cooperation of the international community in such circumstances. In the Haradinaj for instance, the UN Interim Administration Mission in Kosovo promptly arrested and transferred two of the witnesses to the ICTY (paras.22-28); (see also Alexander Zahar, ‘International Court and Private Citizen’, (2009) New Criminal law Review, 569) .
There is a possibility for States to be reluctant to transfer witnesses who have been subpoenaed to provide testimony. State cooperation is very essential to the functioning of these international judicial bodies and it is important for States to comply with requests for assistance with regards to compelling witnesses to provide testimony. Again, witnesses are very important in establishing the truth and have a significant role in the achievement of global justice. The voice of the witness is very important because it is the voice of the witness that justifies the exercise of judicial power in international criminal law. Interestingly, in the past international law did not refer to witnesses, it rendered itself applicable to States and the relationship between States. However, international law has developed with the establishment of the International Criminal Court and these Ad Hoc and hybrid tribunals, international law now directly address itself to individuals. International criminal law renders certain individual conduct directly punishable at the international level. Thus, indicating the inherent authority these international judicial organisations have over individuals other than the accused. These global justice systems are building on an authority and this may have a significant impact in the international community if they continue to operate within the bounds of legality and rule of law.