International criminal law between pragmatism and normativity: The principle of equality of arms and the discretionary power of international criminal tribunals to obtain additional evidence through subpoenas

A typical problem that international criminal tribunals face regarding criminal evidence is how to deliver justice and ascertain the truth with limited resources, time and mandate while respecting the requirements for a fair trial, the fundamental rights of the accused and the underlying objective of peace. In this respect, international criminal courts and tribunals are called to respect the normative rules established for a fair trial but also to consider the pragmatic objective of the court’s mandate and of the peace process. The case law developed by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court of Sierra Leone (SCSL) on granting a defendant’s request to obtain a witness testimony puts forth the debate on pragmatism and normativity in international criminal justice.
The article addresses this issue, by reviewing the relevant ICTY, ICTR and SCSL jurisprudence on subpoenas’ requests. After establishing the definition of the different types of subpoenas and the legal implications that the distinctions bear, the article grapples with the different tests applied by the courts in an attempt to clarify the elaborate legal standards developed by these courts for issuing subpoenas ad testificandum. It then proceeds to examine how by adding more requirements and burden on the side of the defendant to prove the necessity of a subpoena, the international courts’ interpretation of the relevant rule may compromise the procedural fairness and the principle of equality of arms.
The analysis shows that when the court had to adjudicate a subpoena request, it adapted the relevant legal standard by taking into consideration the object of the subpoena, the prospective witness and the court’s role and mandate. The recent ICC jurisprudence on the nature of witness summonses enhances the timeliness of this question. By closely examining the conditions laid down by the international criminal tribunals on issuing subpoenas, the article, sheds new light on the rarely acknowledged issue of the defendants’ right to obtain the attendance and examination of witnesses under the same conditions as witnesses against him in international criminal law.