(Brussels) – International Criminal Court (ICC) member countries should address the court’s finding of obstruction by Kenya in the case against President Uhuru Kenyatta, Human Rights Watch said today. An ICC trial chamber on September 19, 2016 referred a finding of non-cooperation in the now-withdrawn case against Kenyatta to the court’s membership, known collectively as the Assembly of States Parties.

“The ICC has squarely called out Kenya’s breach of its obligations to the ICC,” said Elizabeth Evenson, associate international justice director at Human Rights Watch. “ICC member countries should make sure the message is heard in Nairobi that they will not turn a blind eye to the government’s obstruction of justice.”

President elect Uhuru Kenyatta (L) and the Independent Electoral and Boundaries Commission (IEBC) Chairman Issack Hassan stand for the national anthem in Nairobi on March 9, 2013.

ICC judges in January 2012 had charged Kenyatta, then deputy prime minister and finance minister, with crimes against humanity for his alleged role in organizing and financing murder, displacement, and rape during the violence that followed Kenya’s 2007 presidential election. Although the prosecutor withdrew charges against Kenyatta in December 2014, the issue of whether the government of Kenya should be sanctioned for non-cooperation in the case remained pending.

 
The ICC trial chamber had previously declined to send a finding of non-cooperation to the assembly. In an August 2015 ruling, however, the ICC appeals chamber found that inconsistences in the initial decision required a re-examination of the issues. The prosecutor, the victims’ counsel, and the government of Kenya made new submissions to the trial chamber. On September 19, the trial chamber entered a formal finding of non-cooperation and referred the matter to the assembly for action. It did so because it considered that “the [Assembly of States Parties] 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, in relation to [cooperation requests in the Kenyatta case] and more generally.”
 
The decision is the first ICC finding of non-cooperation sent to the Assembly of States Parties related to the failure of an ICC member country to provide assistance to the prosecution’s investigations. Previous findings of non-cooperation against other ICC member countries have related to failures to enforce the court’s arrest warrants.

As an ICC member country, Kenya is obligated to cooperate with the court, including by responding to the prosecution’s requests for assistance with investigations. The Rome Statute, the ICC’s founding treaty, leaves it up to the Assembly of States Parties to decide what enforcement action to take in non-cooperation cases referred to it.

This finding of “non-cooperation” is specific to the Kenyatta case, and relates only to Kenya’s failure to comply fully with the prosecution’s request for tax, bank, company, land transfer, and telephone records. Crimes against humanity charges in a parallel case against William Ruto, Kenya’s deputy president, and a co-defendant, Joshua arap Sang, were vacated for lack of evidence in April 2016.

 
The failure of the Kenyan government to provide records sought by the prosecution in the Kenyatta case occurred against a backdrop of hostile rhetoric from the government against the ICC proceedings. The Kenyatta administration initiated an aggressive diplomatic campaign to lobby leaders, particularly within the African Union, to support ending the ICC’s cases and undermine African support for the ICC, calling the ICC a “toy of declining imperial powers.” It has made repeated efforts to use the annual meeting of the Assembly of States Parties to politicize the court’s proceedings.
 
In 2010, the Assembly of States Parties adopted procedures to guide its response to findings of non-cooperation, which could culminate in recommendations for assembly action at their annual meetings. But the assembly has limited experience in carrying out these procedures. Beyond dialogue with the non-cooperating member country, the procedures do not list specific possible measures the assembly can take. The European Union also has procedures to guide its response to non-cooperation with the ICC.
 
For other tribunals, countries have shown a willingness to enforce court orders. Targeted sanctions and conditions for providing assistance have been used to bring about cooperation with the International Criminal Tribunal for the former Yugoslavia.
 
The assembly should ensure a consistent and effective approach toward non-cooperation findings to bring about the cooperation by ICC member countries that the court needs to deliver justice, Human Rights Watch said. 
 

When it comes to findings of non-cooperation on the part of ICC member countries, ICC judges have issued previous non-cooperation decisions against the governments of Chad, the Democratic Republic of Congo, Djibouti, Malawi, and Uganda for allowing President Omar al-Bashir of Sudan to visit their countries without facing arrest. Al-Bashir is wanted on two outstanding ICC warrants. A determination on South Africa’s cooperation is currently pending before the ICC regarding the failure of South Africa to arrest Bashir during a June 2015 visit to the country, in violation of both ICC obligations and two orders by a domestic court.

Activists from across Africa highlight the need for African governments to support the International Criminal Court in a video by 21 African and international nongovernmental organizations. 

 
“Defaulting on legal obligations to the ICC should not be allowed to go unchecked,” Evenson said. “Member countries should take Kenya’s obstruction seriously, as they should whenever the court’s judges find that a state party has breached its obligations to the court.” 

Previous Developments in the Kenyatta Case
In early 2014, as a February trial date neared, the prosecution admitted that its investigations had hit a dead end, partly because a key insider witness confessed to giving false testimony. In March 2014, judges granted a temporary adjournment in the trial to permit the prosecution and the government of Kenya to work together to resolve a long-outstanding request for Kenyatta’s financial and other records, which the prosecution hoped could provide additional evidence. When the vast majority of records had still not been produced by October 2014, the prosecution asked the judges to refer Kenya to the Assembly of States Parties for non-cooperation and adjourn the case indefinitely until the government complied.

In two December 2014 decisions, the judges rejected the prosecution’s request to postpone Kenyatta’s trial, finding that further delay – particularly since the prosecution was uncertain whether even full cooperation by the government would lead to sufficient evidence – would be incompatible with the interests of justice. They faulted Kenya for failing to provide records sought by the prosecution but decided not to send a formal finding of non-cooperation against Kenya to the assembly. They found that the non-cooperation did not warrant sanction due in part to concerns about the prosecution’s diligence in following up on cooperation requests and also given their decision not to further adjourn the case.

The ICC prosecution then withdrew its charges against Kenyatta. It sought leave to appeal the decision on non-cooperation, however, leading to the August 2015 ruling by the appeals chamber.