Bensouda wants to appeal ICC decision not to refer Kenya for non-cooperation

Prosecutor Fatou Bensouda has written to the ICC judges seeking permission to appeal their 3 December 2014 ruling not to refer the government of Kenya to the Assembly of States Parties (the ASP is the ICC's governing body) for non-compliance.

By The Hague Trials Kenya

In her filing, Bensouda notes that the judges themselves indicated in their ruling that the government’s relationship with the ICC “falls short of the standard of good faith cooperation” as it pertains to the case against President Kenyatta.

She quotes the judges who said that:

“The Kenyan government's non-compliance has not only compromised the Prosecution's ability to thoroughly investigate the charges, but has ultimately impinged upon the Chamber's ability to fulfil its mandate.”

Bensouda’s written request questions why, despite the findings above, the Chamber ruled that the prosecution had failed to justify its submission that Kenya should be referred to the ASP.

If the judges grant leave (permission) to appeal the decision, Bensouda intends to appeal their decision on non-cooperation based on two main grounds:

1. To find out whether the Chamber’s findings on the government of Kenya’s cooperation were formal or informal;
2. To find out whether the Chamber exercised discretion in its decision not refer the government of Kenya to the ASP and subsequently, whether they ‘erred’ in the exercise of that discretion.

In total, the Prosecution has made two attempts to have Kenya referred to the ASP for non-cooperation. The first time was on 29 November 2013.

After this application, a status conference was convened on 13 February 2014, during which the judges adjourned Kenyatta’s trial date to 7 October 2014 to give the prosecution and the government more time to resolve the cooperation issues.

Later, when the prosecution revealed that it was not prepared to proceed to trial on 7 October, the judges scheduled another status conference on the same day to discuss the status of cooperation between the prosecution and the Kenyan government.

It was at this status conference that the prosecution indicated that it still wanted to refer the government of Kenya to the ASP for non-cooperation, indicating that the consultations had reached a deadlock. And subsequently, the judges rejected the prosecution's application.

Although the ASP is comprised of countries which have signed up to the ICC’s founding treaty – The Rome Statute - Dov Jacobs, assistant professor of law at Leiden University, suggests that a referral of a member state for non-cooperation may only result in “a slap on the wrist” since “there aren’t any coercive sanctions possible.”

It now remains to be seen whether the judges will allow the prosecution to take the issue before the ICC’s Appeal’s Chamber.

Lead image: ICC Chief Prosecutor Fatou Bensouda (Photo: ICC-CPI/Flickr)