Kenya referred to ASP for non-cooperation, but will states step up enforcement?

ICC judges decided that the Kenyan government had failed to cooperate with the ICC prosecutor’s investigation into Kenyatta’s role in post-election violence in Kenya in 2007-08. They referred the matter to the ICC’s governing body, the Assembly of States Parties (ASP) for further action.

Ahead of the Assembly’s annual session this November, Human Rights Watch said the ASP must ensure a consistent and effective approach toward states who do not cooperate with the Court.

“The ICC has squarely called out Kenya’s breach of its obligations to the ICC […] ICC member countries should make sure the message is heard in Nairobi that they will not turn a blind eye to the government’s obstruction of justice,” said Human Rights Watch Associate International Justice Director Elizabeth Evenson.

The Kenyatta trial was set to open in December 2014 after several postponements, but when key prosecution witnesses withdrew the charges were dropped for lack of evidence. The ICC prosecutor said that there was widespread witness-tampering in the case. She also claimed that the Kenyan government failed to cooperate with her investigation or failed to provide key evidence, and so requested that the judges found Kenya non-compliant with its obligations to cooperate with the Court.

Judges reconsider initial decision not to refer Kenya to ASP

In their decision ICC judges found that the Kenyan government had failed to cooperate with the prosecution’s investigation by not responding to its requests for Kenyatta’s property, telephone and financial statements.

The Court’s judges had initially rejected the prosecution’s request to find Kenya to be non-cooperative back in 2014. However, the Appeals Chamber of the Court ordered the Trail Chamber to review this decision, which it did last week.

Circumstances have changed since the trial chamber first rejected the Prosecution’s request. In 2014, the Kenyatta case was still ongoing. With the case now terminated, judges explained that the non-cooperation decision was made “to foster cooperation more broadly for the sake of any proceedings arising out of investigations in the situation.

This is the eighth time the Court’s judges refer the issue of a state not cooperating with the ICC to the ASP for further action. ICC judges have referred non-cooperation by Malawi, Chad, the Democratic Republic of Congo, Djibouti and Uganda, sometimes twice, to the ASP for failing to arrest ICC fugitive Omar al-Bashir while he was on their territory.

The ASP is the management oversight body of the Court and which consists of all 124 states parties to the Rome Statute. Because the ICC does not have its own enforcment mechanism it relies on the ASP’s political and diplomatic efforts to make sure that states cooperate with it, so that it can carry out its mandate.

In these cases, the ASP issued press releases, sent letters to the foreign ministers of the concerned states, and met with states representatives. However, no formal steps had been taken by the ASP to address these instances of non-cooperation.

The difference with the referral to the ASP of the Kenya non-cooperation last week is that this is the first time that the Court has found a state to not cooperate with the prosecutor’s investigation.

Need for strong ASP action

The ASP has adopted formal and informal procedures to deal with non-cooperation in ICC cases.

The informal procedure involves discussion of the issue between the ASP president and officials from the concerned state.

The formal procedure comprises successive steps taken by the Bureau of the ASP and the Assembly, such as an emergency Bureau meeting and the possibility to appoint a dedicated facilitator to consult on a draft ASP resolution containing concrete recommendations on the issue.

It remains to be seen how the ASP will take up this serious finding of non-cooperation by the Kenyan government.

As this is the first time that a state has been found non-cooperative with the prosecutor – on top of that in a highly contentious case where proceedings needed to be terminated because of the alleged widespread witness tampering and intimidation – it will be of great importance that the ASP takes up this matter seriously and urgently.

The ASP needs to send the message that non-cooperation with the ICC will not be tolerated and that the Court can rely on the ASP to ensure that it can deliver justice.

Cooperation with the ICC is an obligation for its member states, not an option.