Last month, Judges at the International Criminal Court (ICC) ruled that the government of Kenya had violated its obligations to cooperate with the ICC in the case against Kenyan President Uhuru Kenyatta. In doing so, the Judges referred the issue of Kenya’s non-cooperation to the Assembly of State Parties, a body of ICC member-state representatives that acts as a legislature for the Court, and which congregates yearly to discuss ongoing issues and challenges facing the institution. Over the next few days, JiC will feature three posts from Thomas Obel Hansen on this impact and implications of this decision. Thomas is a lecturer at Ulster University’s School of Law and a member of the Transitional Justice Institute.

Kenyan President Uhuru Kenyatta attends hearings at the International Criminal Court in October 2014 (Photo: ICC Flickr)

On 19 September 2016, Judges at the International Criminal Court (ICC) referred the Government of Kenya to the Assembly of State Parties (ASP) for what it determined was Kenya’s failure to comply with its obligations to cooperate with the Court in the case against Kenyan President Uhuru Kenyatta. This represents the first time that the ICC has referred a State Party to the Rome Statute to the ASP for failing to cooperate with the Court with respect to a case involving crimes allegedly committed by its own nationals. The decision raises a number of important questions concerning how the Court addresses non-cooperation in practice as well as ongoing ICC-Kenya relations.

This first piece, in a series of three comments on the implications of the ICC decision, looks at what the ruling may mean for the narrative of the Kenyan ICC cases.

Since ICC Prosecutor Bensouda withdrew the charges against Kenyatta in December 2014, the parties to the proceedings have been pre-occupied with the question of whom is to blame for the fact that accountability processes for the 2007-08 post-election violence in Kenya have produced no justice. The Prosecutor has claimed that the case against Kenyatta (as well as cases against other suspects in the Kenyan situation) collapsed, in large part, due to interference with witnesses, because Kenya has obstructed the Court’s cases, and because the government failed to live up to its obligation to cooperate with the Court, including providing prosecutors with requested evidence. Kenya has continuously contradicted this narrative, arguing that the cases could not be taken forward because they were poorly investigated and, ultimately, because the accused were innocent. At the same time, government officials, including President Kenyatta himself, have maintained that Kenya has “cooperated fully” with the ICC throughout the process.

Although the Trial Chamber had previously concluded that Kenya had failed to fully fulfil its obligation under the Statute to provide requested information, it initially refused to act on the Prosecutor’s request to refer the Kenya to the ASP, in part justifying this decision by pointing to the Prosecutor’s own problematic conduct. However, with the Trial Chamber’s most recent decision – which is based on the Appeals Chamber’s guidance, including its observation that the Trial Chamber had evaluated the conduct of the Prosecutor in an “inconsistent manner” – it has been formally established that Kenya failed to perform its obligations to cooperate in this case in a manner serious enough to warrant action by the governing political body of the ICC, the ASP. Although, as Mark has pointed out earlier, neither the narratives proposed by the Prosecutor nor Kenya reflect the ‘whole truth’ as to why all the post-election violence related ICC cases have collapsed, the referral of Kenya to the ASP presents a significant blow to Kenya’s argument that it has fully cooperated with the Court — and therefore that it is the ICC’s fault that its cases collapsed.

Unsurprisingly, Kenya is not willing to subscribe to this new narrative. Following the 19 September decision, Kenyan Foreign Minister Amina Mohamed stated that Kenya will not accept being subject to the ASP’s non-cooperation procedure without “being heard by the court”. Curiously, she also argued that the country had in fact not been referred to the ASP: “We have not been referred to the ASP as the media is saying. I met the ASP President who said the ruling doesn’t say so. The ASP President said the ruling encouraged him to talk to Kenya”.

This is a serious misinterpretation of events. Firstly, the Trial Chamber’s decision is final. There is simply no space for additional litigation (and the views of Kenya on the matter have already been presented to the Court). Secondly, regardless of what the ASP President may have said to Mohamed, the fact remains that the process of referring Kenya to the ASP has already been initiated. In the words of the Trial Chamber, the decision was transmitted to the President of the Court “for referral pursuant to Regulation 109 of the Regulations”, with the Chamber holding that the ASP would “be best placed to address the lack of cooperation” in light of “the failure by the Kenyan Government to comply with the request for cooperation prevented the Court from exercising its functions and powers under the Statute.”

Mohamed’s comments suggest that we have not yet seen the end to the ‘battles over narratives’, and Kenya may very well mobilize additional resources to counter the current script. As will be discussed in coming posts on the decision’s implications, there are additional reasons why Kenya may be frustrated by the recent ASP referral.