On the picture, ICC Judge Silvia Fernández de Gurmendi, Presiding Judge, during the delivery of the Appeals Chamber judgment regarding the Kenyan Government’s alleged non-compliance, at the seat of the Court in The Hague, Netherlands, on 19 August 2015 ©ICC-CPI.
ICC Appeals Chamber reverses decision on Kenya’s cooperation and remands issue to Trial Chamber for new determination.
Today, 19 August 2015, the Appeals Chamber of the International Criminal Court (ICC) reversed Trial Chamber V(B)’s decision regarding the Kenyan Government’s alleged non-compliance with its obligations under the Rome Statute in the case The Prosecutor v. Uhuru Muigai Kenyatta, due to errors in the Trial Chamber’s assessment. The Appeals Chamber hence remanded this decision to the Trial Chamber V(B) to determine, in light of relevant factors, whether Kenya has failed to comply with a cooperation request that has prevented the Court from exercising its functions and powers and, if so, to make an assessment of whether it is appropriate to refer Kenya’s non-compliance to the Assembly of States Parties (ASP).
On 29 November 2013, the Prosecution had filed an application for a finding of non-cooperation against the Kenyan Government, alleging that the Government had failed to comply with a request to produce records relating to Mr. Kenyatta. On 3 December 2014, Trial Chamber V(B) rejected the application for referral of the matter to the ASP. The Prosecutor appealed this decision on 20 March 2015.
Today, Judge Silvia Fernández de Gurmendi, Presiding Judge in this appeal, delivered a summary of the judgment in an open court session. She indicated that the Appeals Chamber considered that Trial Chamber V(B) erred by failing to address whether judicial measures had been exhausted to obtain the Kenyan Government’s cooperation, as well as by assessing in an inconsistent manner the sufficiency of evidence and the Prosecutor’s conduct. The Appeals Chamber found that these errors prevented the Trial Chamber from making a conclusive determination on the existence of a failure to comply with a cooperation request by the Court and affected the Trial Chamber’s decision not to refer the matter of Kenya’s non-compliance to the ASP. The Appeal Chamber hence reversed the Trial Chamber’s decision and remanded it for the Trial Chamber for a new determination.
The Appeals Chamber emphasized that in determining whether there was a failure from a State to cooperate, the Trial Chamber should take into account all relevant factors, including the evidence that was required in the cooperation request and the conduct of the parties to the proceedings. The Trial Chamber should determine whether judicial measures to obtain the cooperation had been exhausted and consultations had reached a deadlock. In addition, Trial Chamber V(B) should have avoided conflating the status of the criminal proceedings against Mr Kenyatta with the issues relating to the Kenyan Government’s cooperation.
Background: In accordance with the Rome Statute, the Court’s founding treaty, all States Parties are obliged to cooperate fully with the ICC in its investigations and prosecutions. Where a State Party fails to comply with a request to cooperate with the Court, thereby preventing the Court from exercising its functions and powers, ICC Judges can make a finding of a failure to comply with a request for cooperation by a State, which prevents the Court from exercising its powers and functions under the Statute and decide to refer the matter to the ASP, or the United Nations Security Council if the latter had referred the situation to the Court, to seek external assistance to obtain cooperation with the request at issue or to otherwise address the lack of cooperation by the requested State. The ASP and the Council may then decide to take the measures they deem appropriate.
Mr Kenyatta was charged, as an indirect co-perpetrator, with five counts of crimes against humanity allegedly committed during the post-election violence in Kenya in 2007-2008. Charges were confirmed on 23 January 2012, and the case was committed to trial before Trial Chamber V(B).
On 13 March 2015, Trial Chamber V(B) decided to terminate the proceedings in this case and to vacate the summons to appear against him, noting the Prosecution’s withdrawal of charges against Mr. Kenyatta. The Chamber also stressed that, although the proceedings shall be terminated, the Court retains jurisdiction over any interference with a witness or with the collection of evidence, and that the protective measures ordered for witnesses and/or victims shall continue, subject to the review by the ICC.
