ICC appeal court: Kenya doesn’t get its free pass but

By L. Muthoni Wanyeki

Kenya may have thought it had put the (dastardly) accusations of non-co-operation and non-compliance behind it. But the Appeals Chamber of the International Criminal Court this week ruled otherwise.

The background: While withdrawing the case of charges of crimes against humanity against President Uhuru Kenyatta, the Office of the Prosecutor made it clear that it had to do so given the steady attrition of the witnesses initially lined up as well as the non-co-operation of the Kenyan state with respect to obtaining other potentially corroborating evidence.

Banking and phone records for the then accused for the relevant period. Lists of assets of the then accused. The possibility of obtaining relevant state security service statements. And so on.

After some back and forth between all parties, attempts at accommodation were ultimately deemed insufficient, and the Trial Chamber handling the case did, in fact, find the Kenyan state had failed to comply.

It did not, however, refer the situation of non-co-operation to the Assembly of State Parties, deeming that doing so was injurious to the defence and, ultimately, irrelevant given the withdrawal of charges.

The OTP disagreed. As did the Common Legal Representative for victims registered for the case. The OTP appealed the failure to refer Kenya to the Assembly of State Parties on two grounds.

First, that the Trial Chamber, having made a finding of non-co-operation, did not have the discretion not to refer — an error of law. Second, even if it did have that discretion, it had wrongfully exercised it.

The Appeals Chamber’s findings and ultimate decision were both interesting. It confirmed the Trial Chamber did have the discretion to refer or not.

However, it held that it had failed to exercise its discretion in the fullest sense possible — with the goal not necessarily of reprimanding the Kenyan state but of continuing to seek its fullest co-operation. In the higher interest of the ICC itself and ensuring its design ultimately works.

That design evidently resting on the compliance of state parties — in this case, with respect to investigations.

It thus did not do what the OTP had asked — which was that it itself refer Kenya to the ASP. It instead kicked the issue back down to the Trial Chamber. To reflect on its previous decision with respect to continued consultation with the Kenyan state.

As well as with respect to the role of external actors — namely the ASP and its state parties. How they might otherwise assist Kenya in fulfilling its co-operation obligation. And whether or not other external actors may be of use in this respect. In short, with a view to a remedy in the first instance, not a referral.

Putting political temperatures aside, it stressed here that findings of non-co-operation are essentially to be deemed value-neutral. And that the long-term view should be taken. That is, all future co-operation by state-parties for the purposes of truth telling.

So the Kenyan state has not got its free pass. But all parties have been reminded of the longer-term implications of every decision made at all levels by the ICC’s Judges.

In this vein, the Appeals Chamber noted that the Trial Chamber had essentially confused the short-term and the long-term. Conflating criminal proceedings against the then accused, an individual, with proceedings concerning treaty obligations of state parties.
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