By Sarah Jackson

Photo: «wooden gavel and block with brass» by Yanik Chauvin

On December 3rd, the Trial Chamber of the International Criminal Court issued a decision finding that the Kenyan government had not cooperated in good faith with the Court’s investigation into Kenya’s now-president Uhuru Kenyatta as per the standards of member state cooperation enshrined in the Rome Statute. However, the ICC chose not to issue a referral on the matter to the Assembly of States Parties.[ref]Public Affairs Unit, International Criminal Court “Kenyatta case: ICC Trial Chamber rejects request for further adjournment and directs the Prosecution to indicate either its withdrawal of charges or readiness to proceed to trial”, Press Release, International Criminal Court (3 December 2014).[/ref] On the same day, judges denied the Prosecution’s request for further delays in the case, requiring them to either withdraw the charges against Kenyatta, or indicate that there was sufficient evidence to proceed to trial. Two days later, ICC Prosecutor Fatou Bensouda filed a motion to withdraw all charges against Kenyatta.[ref]Office of the Prosecutor, “Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta”, Press Release, International Criminal Court (5 December 2014).[/ref] While these developments have sparked an on-going and polarizing debate about the Court’s fairness and legitimacy, the key issue that the Kenyatta case has highlighted is that at the end of the day, the Court lacked the necessary information to make a determination as to the accused’s guilt or innocence.

According to Article 86 of the Rome Statute, states are required to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”[ref]Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3 art 86 (entered into force 1 July 2002).[/ref] In practice the Office of the Prosecutor relies heavily on the cooperation of member state governments in conducting its investigations and collecting evidence. This arrangement becomes problematic when dealing with cases such as Kenyatta’s – how can the ICC expect a government to, in good faith, cooperate in the prosecution of its own President? The answer, clearly, is that it cannot.

Protesting the Court’s finding of non-cooperation, Kenyan U.N. Ambassador Macharia Kamau claims that the level of cooperation required of states is unclear and arbitrary. He stated that «cooperation must be defined in a manner that is consistent with universal norms and cannot be something that is determined by one party at the expense of another party, particularly not at the expense of a state party.”[ref]Michelle Nichols, “Kenya defends international court cooperation on president’s case”, Reuters (11 December 2014). [/ref] However, the Rome Statute makes explicit the parameters of state cooperation with the ICC. Article 93, in particular, lists with great specificity the various requests with which states must comply, and clearly includes the Prosecution’s primary unfulfilled request, that which sought Kenyatta’s financial records,[ref]Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11, Prosecution application for a finding of non-compliance pursuant of Article 87(7) against he Government of Kenya (29 November 2013) at para 24 (International Criminal Court, Trial Chamber V (B)).[/ref] as a requisite form of cooperation in Article 93.1(d).[ref]Supra note 1; Supra note 3 art 93.1 (which requires the service of documents, including judicial documents).[/ref] Kenya’s refusal to provide the evidence necessary to the Court’s investigation is not due to any ambiguity regarding their obligations, but rather demonstrates the obstacles inherent in relying on good faith cooperation from a government whose leader you are seeking to prosecute.

For an institution founded on the premise of denying impunity to the world’s most powerful perpetrators of mass crimes, this is obviously problematic. While this fundamental challenge is not news to anyone, and has indeed been the topic of research and debate among legal scholars, the Court must be willing to take a strong stance against non-compliant governments. In failing to refer Kenya to the ASP for possible sanction,[ref]Supra note 3 art 87.7.[/ref] the Trial Chamber has missed an important opportunity to express, even if only symbolically, that obstruction of ICC investigations will not be tolerated. Rightfully perplexed by the decision to refrain from an ASP referral, Bensouda has sought leave to appeal the decision, which, if approved, will hopefully provide some much-needed clarity as to the Court’s position on non-compliant member states.