This is the second post in a three-part series in which Thomas Obel Hansen explores the recent referral of Kenya to the International Criminal Court’s Assembly of States Parties. The referral followed a finding by ICC Judges that the government of Kenya failed to cooperate in the case against President Uhuru Kenyatta. The previous post can be found here.

Dozens of Kenyan delegates attended last year’s Assembly of States Parties (Photo: Courtesy)

On 19 September 2016, Judges at the International Criminal Court (ICC) referred the Government of Kenya to the Assembly of State Parties (ASP) for its failure to comply with its obligations under the Rome Statute in the Kenyatta case. Following from on my first piece in this three-part commentary, this post discusses the judge’s decision from the perspective of the ICC’s cooperation and enforcement regimes.

The Trial Chamber’s decision follows an extremely lengthy legal process, which not only raises questions about the Court’s efficiency but also whether ICC Chambers should time their decisions in ways to limit controversy with State Parties even if this is to the detriment of the ICC’s cooperation regime.

To briefly summarize: almost three years ago, in November 2013, the Prosecutor filed a petition that the Trial Chamber make a finding of non-compliance under article 87(7) of the Rome Statute against Kenya on the grounds that the Kenyan government did not comply with the Prosecutor’s April 2012 request concerning the provision of evidence. Next, in December 2014, the Trial Chamber decided not to refer Kenya to the ASP, notwithstanding its finding that the conduct of Kenya had “reached the threshold of non-compliance”. In particular, judges held that Kenya had provide none of the requested material with respect to company, land transfer and telephone records. Following the Prosecutor’s appeal of the decision not to refer Kenya to the ASP, in August 2015 the Appeals Chamber decided to reverse the Trial Chamber’s decision and required that it make a fresh determination of the matter on the basis that it had erred in the exercise of its discretion. It took the Trial Chamber more than a year to act on that and to deliver its final decision.

This raises questions concerning the extent to which the Chambers have actually been committed to addressing Kenya’s failure to cooperate with the Court. The last submissions by the parties on the issue were filed in October 2015, and there were no significant legal or factual issues to resolve: The Trial Chamber simply needed to apply the standards set forth by the Appeals Chamber to the factual findings it had already made in its initial decision (tellingly, the Trial Chamber’s 19 September 2016 decision comprises only 18 pages, at least half of which are devoted to a summary of the proceedings and the parties’ submissions). The most obvious conclusion is, therefore, that the Trial Chamber was seeking to limit the controversy an ASP referral of Kenya would create by delivering its decision at a point where there was less attention on the Kenyan ICC cases (and the conduct of the parties).

The timing of the decision may also reflect a broader weariness within the ICC of dealing with anything relating to the Kenyan situation following the embarrassment connected to all of the PEV-related cases collapsing. It could also by symptomatic of a conflict between the Chambers within the Court concerning whom should take responsibility for making “hard decisions”. The Trial Chamber’s legal reasoning for initially not referring Kenya to the ASP, despite its findings on the lack of cooperation, was, at best, dubious. It created a hereto unknown distinction between “formal” and “informal” judicial findings, which the Appeals Chamber called “inappropriate”. In the view of some commentators this was primarily aimed at avoiding referring Kenya to the ASP despite its lack of cooperation. Once before it, the Appeals Chamber could have made the decision itself to refer Kenya to the ASP, rather than deferring the issue back to the Trial Chamber on the grounds that it is “better placed to identify and assess the relevant facts and circumstances” of the case and whether “engaging external actors under article 87 (7) of the Statute would be an effective measure to foster cooperation” when in fact the Trial Chamber had already set out in detail the areas where Kenya had failed to comply with its orders and its reasons for not referring it to the ASP.

In any event, the timing of the decision means that Kenya’s non-cooperation will likely not be a formal issue at the forthcoming Assembly in November this year. Section 14 of the Assembly procedures relating to non-cooperation clarifies that for there to be a public dialogue on a particular instance of non-cooperation at the ASP, a meeting at the Bureau must first be held where the State concerned is invited to “present its views on how it would cooperate with the Court in the future”, and “subsequently, and provided the next session of the Assembly is scheduled to take place more than three months after the Bureau meeting”, the Bureau can request the New York Working Group to hold a public meeting on the matter to allow for an open dialogue with the requested State. Only after this is done, can the matter be discussed in a plenary session at the Assembly. One is therefore left speculating whether the timing of the Trial Chamber’s decision reflects a desire to avoid escalating tensions between Kenya and the Court by ensuring that even further time passes before this sensitive issue will be formally addressed. This may be connected to the Chamber attempting to create leverage for Kenya to cooperate in the ongoing cases relating to the obstruction of justice involving three Kenyan citizens where arrest warrants remain outstanding. It should be emphasized that it is extremely unlikely that the referral can bring about anything that would lead to the re-opening of the PEV-related ICC cases.

More generally, the present proceedings point to significant shortcomings in the ICC’s cooperation regime. The Trial Chamber’s decision to refer Kenya to the ASP represents the only enforcement measure available to a Chamber that finds a State Party to be in breach of its cooperation obligations under Article 87(7) (in situations that had not been referred to the Court by the UN Security Council). Whereas a Chamber’s finding of non-cooperation is in theory strictly judicial, the actual enforcement of such a finding is essentially political as it belongs to bodies comprised of State representatives, namely the ASP (and the Security Council where a case is commenced on the basis of a Council referral). The Statute does not offer any guidance concerning the type of action these bodies can take. In addition to relying on the informal work of the ASP President, the ASP’s own guidelines create a “formal response procedure” when a decision by the Court regarding non-cooperation has been referred to the ASP. However, this procedure seems to be primarily aimed at promoting cooperation with respect to ongoing cases. Since the charges against Kenyatta have already been withdrawn, these aspects of the procedure are less relevant in this case. The procedure also provides that the President may write an “open letter” to the State concerned reminding it of the obligation to cooperate; the holding of “public meetings”; discussions in plenary; and the appointment of “a dedicated facilitator to consult on a draft resolution containing concrete recommendations on the matter”. Importantly, the procedure does not lay down a framework for actually sanctioning a State Party which refuses to cooperate. In short, the ICC’s cooperation regime is essentially based on a “managerial model” of compliance, but this can be problematic when the relevant State has a limited motive for cooperating with respect to the actual case that triggered the cooperation proceedings and in particular when this case has already been terminated.

The efficiency of the ICC’s cooperation regime therefore largely depends on the potential action taken by external actors. As Rod Rastan argues: “if the non-compliance procedure is genuinely to influence state behaviour, the support for justice must be matched by concerted and unified action by the international community under a notional responsibility to enforce.” The problem – as illustrated by the lack of serious action relating to State Parties’ non-cooperation with respect to enforcing the arrest warrants on Sudanese government officials – is that such unified action is typically absent. Research by Stephen Brown and Rosalind Raddatz suggests that it will be no different in the case of Kenya since international partners have come to view the ICC as an obstacle to having “normal relations” with Nairobi since Kenyatta became president. In its most recent decision, the Chamber itself observed that “there are no particular circumstances which indicate that, in this particular case, external actors, other than the ASP, are likely to take effective actions.”

The initial conclusion is therefore that, other than re-opening the debate of what went wrong in the Kenyan ICC cases, as was discussed in the first post in this series, the Trial Chamber’s referral of Kenya to the ASP is unlikely to have any ramifications deemed serious enough in Nairobi to warrant fundamental changes in its policy towards the ICC. There is a caveat though: the Trial Chamber’s most recent decision could have implications for how the Article 70 cases, involving three Kenyan nationals, Walter Barasa, Paul Gicheru and Kipkoech Bett, relating to corruptly influencing ICC witnesses in the Kenyan cases are handled. This issue will be discussed in my final piece on the Trial Chamber’s decision to refer Kenya to the ASP.