Judges of the International Criminal Court (ICC) have decided Kenya should be referred to the court’s membership for not cooperating with the ICC during the now-terminated case against President Uhuru Muigai Kenyatta.

This decision makes Kenya the third country this year to be referred to the ICC’s membership, known officially as the Assembly of State Parties (ASP). The ASP is composed of countries that have ratified the ICC’s founding law, the Rome Statute. It is also the top decision-making body of the ICC when it comes to making changes to the Rome Statute and the ICC’s rules and regulations.

Djibouti and Uganda are the first and second countries to be referred to the ASP this year. A pre-trial chamber decided on July 11 to refer the two East and Horn of Africa nations to the ICC’s membership. This was after Djibouti and Uganda failed to execute a ICC arrest warrant for Sudanese President Omar al Bashir when he visited those countries earlier this year. Both countries are member states of the ICC.

In all three decisions, the respective chambers have referred to Article 87(7) of the Rome Statute. The respective chambers have said they are referring Djibouti, Kenya, and Uganda to the ASP for non-cooperation, which is the language from the statute. This is another way of saying that these countries have obstructed the work of the court. 

The unanimous decision of Trial Chamber V(b) against Kenya means the next step is for the President of the ICC to transmit that decision to the ASP. This was also the case with the decision of Pre-Trial Chamber I against Djibouti and Uganda. The Assembly of State Parties meets once a year and is next scheduled to meet in November at The Hague.

This is the second decision Trial Chamber V(b) has made on the question of whether Kenya had cooperated with the court and, if not, whether Kenya should be referred to the ICC’s membership.

In the chamber’s first decision issued on December 3, 2014, Presiding Judge Kuniko Ozaki and Judges Robert Fremr and Geoffrey Henderson, determined that Kenya had failed to cooperate with the court. They, however, decided that Kenya’s lack of cooperation did not change the prospects of the case against Kenyatta proceeding to trial and declined to refer the case to the ASP. At the time the judges reached that conclusion based primarily on the prosecution’s assertion that it was possible that they still would not be trial ready if they received all the records they had requested from the Kenyan government.

The prosecution had originally asked for the records in April 2012, but it was only in December 2013 that the prosecution requested that Trial Chamber V(b) intervene in the matter.

In response to the prosecution’s application, Trial Chamber V(b) decided in March 2014 it would not immediately rule on the matter but instead ordered a court-supervised process to get the Kenyan government to respond to the request for eight categories of records.

It is after this process that Trial Chamber V(b) made its first decision on whether Kenya had cooperated with the court and what sanctions, if any, should be applied to Kenya. The chamber made this decision simultaneously with one asking the prosecution to decide whether it could proceed to trial or withdraw the case against Kenyatta.

Once the chamber made its decision not to refer Kenya to the ASP, the prosecution applied to appeal that decision. Trial Chamber V(b) granted its application. The Appeals Chamber decided to reverse the trial chamber’s decision not to refer Kenya to the ASP in August 2015, saying Trial Chamber V(b) had not interpreted the law correctly. The Appeals Chamber, however, said Trial Chamber V(b) had the facts of the case, and it was up to the chamber to determine whether those facts supported a referral to the ASP.

After the Appeal Chamber’s decision, the trial chamber asked the prosecution, the Kenyan government, Kenyatta’s legal team, and the lawyer for victims to make any other submissions they considered necessary.  This they did in October 2015.

In its September 19, 2016, Trial Chamber V(b) noted, “A chamber is not required to wait indefinitely where there is a failure ‘to meaningfully take basic steps to obtain the requested material or to provide clear, timely and relevant responses.’ In the circumstances, noting that this situation had persisted even following a period of active judicial supervision, the Chamber concludes that judicial remedies had been exhausted and that the cooperation proceedings had reached a deadlock.”

“It is additionally 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 implementation of the Revised Request,” the chamber observed.

The revised request referred to in the quote is the one the Trial Chamber V(b) ordered the prosecution to make to the Kenyan government to allow the government to make a more precise search for the records the prosecution was seeking. At the time the chamber observed that the April 2012 request the prosecution had made was a more general request for a wide range of records. Therefore, in March 2014 the chamber asked the prosecution to refine its request in light of the needs of trial.

Trial Chamber V(b) observed in its September 19, 2016 decision that though the case against Kenyatta has been terminated, the records the prosecution had asked for are still relevant for any ongoing or future investigation concerning Kenya. When the chamber terminated the case against Kenyatta in March 2015, it did not acquit Kenyatta of the charges against him. The chamber also said terminating the case did not stop the prosecution pursuing the case if they got new evidence.

“In any case, the Chamber finds that, in general, the lack of bona fide cooperation by the Government of a situation country, as shown by the Kenyan Government in this instance, may have a serious impact on the functioning of the Court in future proceedings. Therefore notwithstanding the passage of time and having regard to the nature of the non-cooperation at issue, the Chamber finds it appropriate for the lack of cooperation in this case to be further addressed,” said the chamber in its September 19 decision.

Once the President of the ICC transmits the trial chamber’s decision to the Assembly of State Parties, it will be up to the member states of the ICC to decide what the next steps are. This will be the first time that a member state has been referred to them for failing to cooperate with the court in a case that was before it.