Justice in Conflict

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. Continue reading →

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. Continue reading →