ICC Trial Chamber V(B) refers non-cooperation of the Kenyan Government to the Assembly of States Parties to the Rome Statute
Today, 19 September 2016, Trial Chamber V(B) of the International Criminal Court (ICC) issued a decision finding that the Republic of Kenya had failed to comply with its obligations to cooperate with the ICC and referred the matter to the Assembly of States Parties to the Rome Statute (ASP) which, according to the Trial Chamber, “would be best placed to address the lack of cooperation, in order to provide an incentive for the Kenyan Government to cooperate with the Court”.
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 Uhuru 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. On 19 August 2015, the ICC Appeals Chamber reversed this first decision and remanded it to the Trial Chamber.
After receiving further observations from the ICC Prosecution, the Legal representative of victims and the Government of Kenya, and in light of the guidance provided in the Appeals Chamber’s Judgment, Trial Chamber V(B) recalled that it found, on 3 December 2014, that the approach of the Kenyan Government fell short of the standard of good faith cooperation required under the Rome Statute and further noted today that this situation had persisted even following a period of active judicial supervision and that the cooperation proceedings had reached a deadlock.
The Trial Chamber also noted that despite the passage of a further 18 months and notwithstanding the Kenyan Government’s continuing statutory obligation to comply with any cooperation request from the Court, it appears that no further progress has been made in implementing the Prosecutor’s request. Trial Chamber V(B) concluded today that the Republic of Kenya has failed to comply with its statutory obligations to consult with the Court and to take all reasonable steps to execute a request for cooperation from the Court, including by not providing clear, relevant and timely responses or taking any meaningful steps to compel production of requested information. According to the Chamber, the non-cooperation has prevented the Court from exercising its functions and powers under the Statute.
