The Deputy Prosecutor of the International Criminal Court (ICC) has argued that trial judges have the powers to compel a witness to testify before the court, something defense lawyers contested saying only witnesses who voluntarily appear before the court can testify.

Kenya’s Attorney General on Friday cautioned Trial Chamber V(a) against issuing an order to compel witnesses to testify, arguing such an order would be like re-writing the Rome Statute that is the ICC’s fundamental law.

The judges of Trial Chamber V(a) on Friday sought clarifications and further legal arguments during a status conference to discuss an application the prosecution made to the chamber to compel seven witnesses to testify before it. In the December 5 application, the prosecution told the judges that during the course of last year seven witnesses recanted their statements or simply stopped communicating with the Office of the Prosecutor. The prosecution said in its application that all seven are presently living in Kenya.

Kenyan Attorney General Githu Muigai was invited to the status conference to make contributions as a friend of the court. Muigai told the court that if the chamber was to issue orders to compel the witnesses to testify via video link he would not be able to act on it. He said that Kenyan law does not have any provision that allows him to do so.

Muigai also argued that Article 93 of the Rome Statute and most of its subsections were clear that a state party, such as Kenya, would provide assistance to the court in the case of a witness who is voluntarily appearing before the court. He gave the example of a witness who may have a problem getting travel documents to go to The Hague.

Muigai argued that a provision in Article 93 that could be interpreted to mean a witness could be compelled to testify before the ICC was a general provision and did not override the other more specific provisions in Article 93.

In our reading of the treaty, the treaty requires voluntary appearance of witnesses whether sitting here [in The Hague] or at any other venue,” Muigai said.

Earlier in the day Deputy Prosecutor James Stewart had argued that the orders the prosecution was seeking could be given on the basis of the trial chamber’s discretionary powers under the Rome Statute and the provision in Article 93 that said a state party can provide any other assistance to the court.

Stewart clarified that the prosecution was not seeking that the seven witnesses be compelled to go to The Hague. He said the prosecution wanted the witnesses to either testify via video link in Kenya or the trial chamber goes and sits in Kenya to receive their evidence. He also argued that in many domestic jurisdictions, courts had the powers to compel witnesses to testify.

“Did the framers really intend the court [ICC] to be denied the basic powers enjoyed by any domestic criminal court?” asked Stewart.

Muigai took the better part of two sessions of the day’s proceedings to explain the Kenyan government’s position. Most of his explanations were in response to questions from Presiding Judge Chile Eboe-Osuji who, on behalf of the trial chamber, presented various provisions of Kenyan law and asked Muigai for his interpretation.

The status conference will continue on Monday before the trial of Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang resumes that day.