The Appeals Chamber of the International Criminal Court (ICC) has reversed the decision of Trial Chamber V(b) not to refer Kenya to the ICC’s membership for failure to comply with requests from the prosecution in its now-terminated case against President Uhuru Muigai Kenyatta.

In a unanimous decision, the five-judge Appeals Chamber said on Wednesday that Trial Chamber V(b) contradicted itself in its December 3 decision, and in so doing, did not properly exercise its discretion on the matter. The Appeals Chamber said it would not make a decision on whether to refer the Kenyan government to the ICC’s membership, or the Assembly of State Parties as it is formally known. The chamber instead ordered that this issue return to Trial Chamber V(b) because it had all the facts necessary to make such a decision.

“The Appeals Chamber finds that the Trial Chamber erred in the exercise of its discretion by conflating the non-compliance proceedings against Kenya with the criminal proceedings against Mr. Kenyatta, by failing to address whether judicial measures had been exhausted, and by assessing the sufficiency of evidence and the conduct of the Prosecutor in an inconsistent manner. The Appeals Chamber finds that these errors materially affected the Trial Chamber’s decision not to refer the matter of Kenya’s non-compliance,” said the chamber.

“In addition, the Appeals Chamber is also of the view that these errors also prevented the Trial Chamber from making a conclusive determination on the existence of a failure to comply with a request to cooperate by the Court contrary to the provisions of the Statute, which prevents the Court from exercising its functions and powers under the Statute, as required by the first clause of article 87(7) of the Statute,” said the chamber, referring to the provision of the ICC’s founding law that was the subject of the prosecution’s appeal.

Appeals Chamber Presiding Judge Silvia Fernandez de Gurmendi, who read out in open court a summary of the five judges’ decision, said in reaching their decision they granted the prosecution’s second ground of appeal but declined their first ground of appeal. The prosecution appealed Trial Chamber V(b)’s decision on March 20, arguing two grounds of appeal.

The first was that since the trial chamber had found that the Kenyan government failed to provide credible justifications for not providing five categories of records requested by the prosecution, then it should have automatically referred Kenya to the Assembly of State Parties. The prosecution argued this was the correct interpretation of Article 87(7) of the ICC’s founding law, which addresses the issue of measures that can be taken against a government for not complying with requests from the ICC.

De Gurmendi said the Appeals Chamber’s view was that the correct interpretation of Article 87(7) was that a chamber had the discretion to determine whether a state had failed to cooperate with the court. De Gurmendi also said that it was the view the Appeals Chamber that if a chamber determined a state had failed to cooperate, then that chamber also had the discretion to determine whether it was necessary to refer such a state to the Assembly of State Parties (ASP).

The second ground of appeal the prosecution filed was that if the Appeals Chamber found the trial chamber had the discretion to refer Kenya to the ASP then it should find that the trial chamber did not exercise properly its discretion because it took into consideration irrelevant factors and failed to weigh relevant issues when reaching its decision.

De Gurmendi said the Appeals Chamber agreed with this second ground of appeal because there are a number of factors Trial Chamber V(b) considered in its decision but it made contradictory conclusions or observations about those factors. The Appeals Chamber found that, for instance, the trial chamber observed that the prosecution was complaisant in seeking the documents it needed but in the same decision noted the prosecution’s actions did not prevent the Kenyan government from acting on the prosecution’s request.

The Appeals Chamber also noted the trial chamber concluded that judicial measures had not been exhausted to secure the cooperation of Kenya in line with the prosecution’s request but the trial chamber did not elaborate how this was the case.

De Gurmendi said that these and other contradictions the Appeals Chamber found in Trial Chamber V(b)’s December 3 decision, made it conclude that the trial chamber had not properly exercised its discretion in the matter. De Gurmendi said that the Appeals Chamber, on reaching this conclusion, decided to return the matter to the trial chamber for its consideration, which is one of the remedies the prosecution had requested. The Appeals Chamber did not grant the other remedy the prosecution had requested, which was to refer Kenya to the ASP. De Gurmendi said the chamber did not have all the facts to make such a decision and Trial Chamber V(b) was better placed to do so.

In its December 3 decision, Trial Chamber V(b) found that the Kenyan government did not have good reason for not providing five categories of documents the prosecution had asked for. The prosecution had asked for a total of eight categories of records and the trial chamber found that in the case of three categories, the Kenyan government had complied with the request for cooperation.

The trial chamber, however, did not make an explicit finding on whether the Kenyan government’s failure to provide the requested material could be defined as non-cooperation with the court and if so, whether this was grounds to refer Kenya to the ASP.

In referring the matter back to Trial Chamber V(b), the Appeals Chamber is in effect asking the trial chamber to make an explicit decision on whether Kenya has cooperated with the ICC, and also make a decision on any remedies if needed.