Judges to re-examine Kenya cooperation – what role for the ASP?

Trial judges asked to re-examine Kenya’s cooperation and referral to ASP
In December 2014, ICC Prosecutor Fatou Bensouda withdrew her case against Kenyatta, arguing that the Kenyan government blocked her from obtaining crucial evidence for thecrimes against humanity trial. She asked judges to refer Kenya’s failure to cooperate to the ASP for further action.

The judges declined the request, stating that while there were serious concerns over Kenya’s cooperation with the Court, it wasn’t appropriate to involve the ASP. The prosecutor disagreed and appealed.

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In its decision this week, the Appeals Chamber said that the trial judges:

  • Failed to determine whether all judicial ways to get the Kenyan government to cooperate with the Court had been used; and
  • Inconsistently evaluated the sufficiency of evidence and the prosecutor’s conduct in its determination of the matter.

The Appeals Chamber found that these errors prevented judges from making a conclusive determination on whether Kenya failed to cooperate and that this influenced their decision to not refer the matter to the ASP.

The Trial Chamber must now reconsider its decision and rule again on whether it should refer the lack of cooperation by Kenya to the ASP.


Need for strong ASP enforcement mechanisms
In the event that trial judges decide to refer any non-cooperation finding against Kenya to the ASP, the consequences will be limited, as the Assembly currently has no mechanisms in place to deal with such a referral.

For international justice to be truly effective, ICC member states must put in place strong mechanisms to ensure full compliance with Court decisions, as is obligated by the the ICC’s founding treaty, the Rome Statute.

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Ahead of the ASP’s 13th session last December, we called on governments to enhance cooperation to strengthen the ICC and Rome Statute system.

Coalition Convenor William R. Pace:

“For the Rome Statute system to overcome major challenges, the highest level political support by states parties must be demonstrably increased. It has become clear after the ICC’s first 12 years that the ASP needs to comprehensively review and address cooperation issues such as arrest strategies, victim and witness protection and non-essential contact with indicted senior government officials. We see a lack of state cooperation curtailing the Court’s effectiveness in many of its investigations and prosecutions, as indicated most recently by the judges in the Kenyatta case. While there has been important leadership in the Assembly on this matter, stronger mechanisms are now needed, including procedures to deal with governments that are failing to live up to their obligations as states parties to the Statute.”

Watch Kenyan civil society discuss Kenya’s cooperation with the ICC

Have your say – How can we ensure better state cooperation with the ICC?