The Women's Initiatives for Gender Justice is an international women's human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and through domestic mechanisms, including peace negotiations and justice processes. We work with women most affected by the conflict situations under investigation by the ICC.

The Women's Initiatives for Gender Justice works in Uganda, the Democratic Republic of the Congo, Sudan, the Central African Republic, Kenya, and Libya.

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■ Kampala and Amolatar, Uganda
■ The Hague, the Netherlands

Dear Friends,

Welcome to the December 2015 issue of Legal Eye on the ICC, a regular eLetter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has nine Situations under investigation: Uganda, the Democratic Republic of the Congo (DRC), Darfur (Sudan), the Central African Republic (CAR I and CAR II), Kenya, Libya, Côte d'Ivoire and Mali.

In addition to the Legal Eye on the ICC, we produce Women's Voices, a regular eLetter providing updates and analysis on political developments, the pursuit of justice and accountability, the participation of women in peace talks and reconciliation efforts from the perspective of women's rights activists within armed conflict situations, specifically those countries under investigation by the ICC.

More information about the work of the Women's Initiatives for Gender Justice and previous issues of Women's Voices and Legal Eye on the ICC can be found on our website at 4genderjustice.org.

This issue of the Legal Eye covers the ICC Chamber’s decisions on the Prosecution’s requests for adjournment and finding of non-cooperation in the case against President of the Republic of Kenya, Uhuru Muigai Kenyatta (Kenyatta). It also provides the Prosecution’s decision to withdraw the charges against Kenyatta and the Chamber’s decision to terminate the proceedings in this case. Lastly, it addresses the Appeals Chamber decision on Kenya’s cooperation.

Background

On 31 March 2012, the ICC opened an investigation in Kenya for crimes allegedly committed between 2005 and 2009 in the context of the post-election violence (PEV). Summons to appear were issued against several individuals including Kenyatta. On 23 January 2012, Pre-Trial Chamber II confirmed five counts of crimes against humanity against Kenyatta, including murder; deportation or forcible transfer of population; rape; other inhumane acts; and persecution, including by means of rape and other inhumane acts. He was charged as an indirect co-perpetrator under Article 25(3)(a) of the Statute.[1]

As described below, Kenyatta’s trial was due to begin in February 2014, but was rescheduled several times and proceedings in this case were eventually terminated, based on Prosecution’s claims that because of Kenya’s lack of cooperation, it did not have enough evidence to proceed.

Trial Chamber’s decisions on the Prosecution’s adjournment and finding of non-cooperation requests

Trial Chamber V (b) adjourns proceedings against Kenyatta

In January 2014, Trial Chamber V (b) (the Chamber) vacated the commencement date for the trial against Kenyatta, first scheduled for 5 February 2014.[2] The decision followed the Prosecution’s request for an adjournment based on lack of evidence to proceed as well as a request for a finding of non-cooperation based on Kenya’s failure to produce financial and other records of the accused.[3] In response to the Prosecution’s requests, the Defence had sought a dismissal and termination of the proceedings.[4] On 31 March 2014, the Chamber issued a decision directing the Prosecution to submit an updated cooperation request to the Kenyan Government and for Kenya to review the said request; adjourning the provisional trial commencement date to 7 October 2014 in order to facilitate execution of the request; and rejecting the Defence’s request to terminate the proceedings.[5]

Trial Chamber V (b) rejects Prosecution’s application for a further adjournment and the Defence’s termination request

On 5 September 2014, the Prosecution filed a notice indicating that it would not be in a position to proceed to trial on 7 October, as the available evidence was still insufficient to prove Kenyatta’s alleged criminal responsibility ‘beyond reasonable doubt’. The Prosecution also requested that the case be further adjourn until the Kenyan Government fully executed a request for cooperation.[6] On 19 September, the Chamber issued an order vacating the trial commencement date and scheduled status conferences for 7 and 8 October 2014.[7] During the status conferences both the Prosecution and the Legal Representative of Victims (LRV) requested the Chamber to indefinitely adjourn the proceedings, while the Defence reiterated its request for the Chamber to terminate the proceedings.[8]

On 3 December 2014, the Chamber rejected the Prosecution’s application for a further adjournment and the Defence’s termination request. It directed the Prosecution to file a notice, within one week of the decision, indicating either:

(i) The withdrawal of the charges in this case; or

ii) That the evidentiary basis has improved to a degree that would justify proceeding to trial.[9]

Trial Chamber V (b) rejects the Prosecution’s application for a finding of non-compliance

On 29 November 2013, the Prosecution requested the Chamber to make a finding on Kenya Government’s failure to comply with its request to produce financial and other records of the accused.[10] On 3 December 2014, the Chamber rendered a decision rejecting the Prosecution’s application for a finding of non-compliance.[11]

The Chamber first observed that it ‘is apparent, from a plain reading of the provision itself, that the Chamber’s power to make a finding of non-compliance under Article 87(7) of the Statute, and to refer the matter to the Assembly of States Parties (ASP) or Security Council, is a discretionary one’. Accordingly the Chamber held that ‘even where it has been determined that a State has failed to comply with a request for cooperation and that this failure has prevented the Court from exercising its functions under the Statute, the Chamber has to consider whether making a finding pursuant to Article 87(7) of the Statute is appropriate in the circumstances’.[12] The Chamber further observed that in determining that a State has failed to comply with a request for cooperation under Article 87(7), ‘a certain restraint is appropriate’, in this regard emphasising that ‘[n]ot every instance of non-compliance with a cooperation request will constitute a failure to comply under that provision’.[13]

Next, the Chamber considered whether Kenya had complied with its obligation under Article 88 of the Statute, which provides that ‘States Parties shall ensure that there are procedures available under their national law for all forms of cooperation which are specified under [Part 9 of the Statute]’.[14] The Chamber recalled its decision of 31 March 2014, finding a ‘substantial unexplained delay’ in Kenya’s compliance with the cooperation request. It added that only one of the eight categories of materials identified in the Revised Request had been executed in full.[15]

In its overall assessment of cooperation, the Chamber observed that ‘this is an instance where the question of compliance is one of degree’, and thus held that it must have ‘particular regard to the explanations provided by the Kenyan Government in considering the adequacy of the steps taken’.[16] However, the Chamber found that ‘the explanations provided by the Kenyan Government for non-provision of materials, were, in certain cases, framed in an unhelpful manner that did not respond clearly to queries raised’, and further noted that it was ‘apparent that – save in the case of Foreign Transaction Records – there has been a complete failure to pursue alternative sources of information’.[17]

The Chamber further found that ‘despite the clear terms of the Revised Request, subsequently reiterated by the Prosecution, and the clear terms of the Decision of 29 July 2014, it is apparent that the Kenyan Government has taken no meaningful steps to compel production of the requested materials’.[18] Moreover, the Chamber observed that during the overall course of the litigation, it had ‘noted with concern certain submissions of the Kenyan Government which are indicative of a non-cooperative stance premised on factors which the Chamber considers are inappropriate and irrelevant considerations in the sole context of the cooperation’.[19] Accordingly, the Chamber held that ‘cumulatively, the approach of the Kenyan Government, as outlined above, falls short of the standard of good faith cooperation required under Article 93 of the Statute’, and considered that ‘this failure has reached the threshold of non-compliance required under the first part of Article 87(7) of the Statute’.[20]

Next, the Chamber turned to the issue of whether or not the Kenyan Government’s non-compliance has affected the exercise of the Court’s functions and powers under the Statute. In this regard, the Chamber concluded 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 under Article 64, and in particular, its truth-seeking function in accordance with Article 69(3) of the Statute’.[21]

On this basis, the Chamber then considered whether making a formal finding of non-compliance pursuant to Article 87(7) of the Statute was warranted. The Chamber first emphasised that ‘for the purpose of enhancing the work of the Court, one of the primary rationales for making such a finding and a referral might be to further the proceedings in the main case, by, for example, securing compliance with the cooperation requests at issue’.[22]

In the specific case, the Chamber observed that ‘a referral might result in further uncertainty and potential delay for the proceedings’, and additionally noted that in ‘considering the Prosecution’s concession that the evidence fell below the standard required for trial and that the possibility of obtaining the necessary evidence, even if the Revised Request was to be fully executed, is still nothing more that speculative, the Chamber is not persuaded that a referral to the ASP would facilitate a fair trial or the interests of justice’.[23] The Chamber also emphasised that it ‘cannot ignore the delay by the Prosecution in meaningfully following up on the original Records Request’.[24]

In conclusion, the Chamber held that while there were ‘serious concerns regarding certain aspects of the Kenyan Government’s approach to the cooperation, which might make the prospect of further cooperation less probable’, it was ‘not persuaded that the circumstances warrant referral on the basis of exhaustion of judicial measures at this stage’.[25]

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Prosecution’s decision to withdraw the charges against Kenyatta and Trial Chamber’s decision to terminate the case

The Prosecution notifies the Chamber of its withdrawal of charges against Kenyatta

In light of the Chamber’s decision, on 5 December 2014 the Prosecution informed the Chamber that it was withdrawing the charges against Kenyatta.[26] The Prosecution stated that the evidence ‘has not improved to such an extent that Mr Kenyatta’s alleged criminal responsibility can be proven beyond reasonable doubt’.[27] The Prosecution, however, noted that the withdrawal was ‘without prejudice to the possibility of bringing new charges’ against Kenyatta at a later date ‘based on the same or similar factual circumstances’, should it obtain sufficient evidence to support such a course of action.[28]

Victims’ response to the Prosecution’s notice of withdrawal of the charges against Kenyatta

On 9 December 2014, the Legal Representative of Victims (LRV) filed his response to the Prosecution’s notice of withdrawal of the charges against Kenyatta.[29] The LRV called for the Prosecution to keep investigating crimes committed the post-election violence, including sexual and gender-based crimes.[30]

The LRV also attached an annex with the views and concerns of a sample of victims of the case, collected after the withdrawal of the charges, between 5-8 December, which according to him show the victims’ ‘anger, betrayal and disbelief at the prospect that they to be totally abandoned by the ICC’.[31]

The LRV further observed that the ‘campaign of obstruction of justice’ had succeeded, in this regard emphasising that from an early stage, the victims ‘made it clear repeatedly to the LRV, in the strongest terms, that they considered that Mr Kenyatta’s government was doing all that it could to collapse the case against him, and would not stop until it had persuaded the Court to walk away in despair’.[32] Citing the Chamber’s findings on cooperation, the LRV observed that recent events ‘have demonstrated how accurate the victims’ prediction was’.[33]

Specifically with regard to sexual and gender-based crimes, the LRV noted that ‘the Prosecution should also step up its investigations into police and sexual and gender-based violence (“SGBV”) crimes during the PEV, and offences against the administration of justice in this case’.[34] In this regard, the LRV emphasised that the PEV involved ‘an unknown number, very likely in the thousands, of acts of SGBV of women, girls, men and boys’, and that since the charges against Ruto and Sang do not include sexual violence, the ‘sole avenue for accountability, whether in Kenya or elsewhere in the world, for PEV rape victims’, had now been closed.[35]

The LRV additionally stated his view that withdrawing the sexual violence charges in the Kenyatta case ‘in the face of State obstruction of access to evidence relevant to determining those ultimately responsible for those crimes’ is inconsistent with the aim of the Prosecution’s 2014 Policy Paper on Sexual and Gender-Based Crimes and profoundly ‘antithetical to the aims and methods’ set out in the recent International Protocol on the Documentation and Investigation of Sexual Violence in Conflict.[36] Accordingly, the LRV observed that the withdrawal of charges in the Kenyatta case ‘ends the only credible effort to provide justice to the survivors of rape and sexual violence during the PEV, and strengthens Kenya’s culture of impunity for such crimes’.[37]

The LRV moreover stated that he was ‘not aware if the Prosecution has instituted any prosecutions relating to bribery or intimidation of witnesses in this case’, which has ‘clearly undermined the Court’s search for the truth in respect of the allegations against Mr Kenyatta’.[38] The LRV stated that the ‘victims are entitled to now know who interfered with witnesses due to deliver evidence against Mr Kenyatta, and for what reason’, and ‘also entitled to know what the Court intends to do about this problem’.[39]

The LRV concluded that the ‘Court has delivered to the victims of this case not one of the three basic elements of justice that victims are entitled to expect: a formal declaration of the truth by the Court regarding the crimes committed against them during the PEV; to have those who victimized them held accountable; and to receive just and prompt reparation’.[40] Nearly seven years after the crimes and after three years of proceedings, the LRV noted, ‘victims in this case have received no truth, accountability or reparation from the Court’, nor have they received any general assistance, which falls within the mandate of the Trust Fund for Victims.[41] In sum, the LRV stated, the victims ‘have received almost nothing from the entire ICC process’, making it ‘difficult for the Prosecution to convincingly argue that it is on the side of the victims – especially victims of rape – in this or future cases’.[42]

The Chamber’s decision to terminate the proceedings against Kenyatta

On 13 March 2015, in light of the Prosecution’s notice to withdraw the charges against Kenyatta, the Chamber decided to terminate the proceedings against him.[43] Whereas the Chamber noted that the Summons to Appear should thus be formally discharged and that the conditions therein will cease to have effect, it also made it clear that the Court ‘retains jurisdiction over any interference with a witness or with the collection of evidence’. It also emphasised that, pursuant to Regulation 42 of the Regulations of the Court, ‘[p]rotective measures once ordered in any proceedings in respect of a victim or witness [... ] shall continue after proceedings have been concluded, subject to revision by a Chamber’.[44]

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Appeals Chamber decision on the Prosecution’s appeal against the decision on non-compliance

On 20 March 2015, the Prosecution filed its appeal against the Chamber’s decision on non-compliance.[45] The Prosecution submitted that the decision involved errors on two grounds: ‘The Trial Chamber erred in law by not automatically referring the GoK to the ASP’ and, in the alternative, it failed to ‘take into account or give sufficient weight to relevant considerations’.[46]

On 19 August 2015, the Appeals Chamber reversed the Trial Chamber’s Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute.[47]

The Chamber was not persuaded by the Prosecution’s first ground of appeal, that once the Trial Chamber has made a finding on Kenya’s non-compliance with the request for cooperation and that this non-compliance prevented the Court from exercising its functions and powers, the Trial Chamber, having no discretion not to do so, should have automatically referred the matter to the ASP. The Chamber considered that ‘in determining whether a referral is appropriate, a Chamber will often need to take into account considerations that are distinct from the factual assessment of whether the State has failed to comply with a request to cooperate’, and therefore established that ‘a referral is not an automatic consequence of a finding of a failure to comply with a request for cooperation, but rather this determination falls within the discretion of the Chamber seized of the article 87 (7) application’.[48] Accordingly, the Chamber held that the Trial Chamber ‘did not err in law by not automatically referring Kenya to the ASP once it had made a factual determination of a failure to cooperate that affected the Trial Chamber’s ability to exercise its functions and powers under the Statute’, and thus rejected the Prosecution’s first ground of appeal.[49]

Concerning the Prosecution’s second ground of appeal, that if the Trial Chamber did have discretion regarding whether to refer the matter, it erred in the exercise of its discretion by considering irrelevant factors and by failing to consider or properly weigh other relevant factors, the Chamber held that the Trial Chamber erred in the exercise of its discretion by conflating the non-compliance proceedings against Kenya with the criminal proceedings against 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.[50] The Chamber observed that these errors materially affected the Trial Chamber’s decision not to refer the matter of Kenya’s non-compliance, and prevented it 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.[51]

The Chamber observed that ‘the Chamber of first instance, being intimately familiar with the entirety of the proceedings, is generally better placed to identify and assess the relevant facts and circumstances in the context of the case in order to decide whether engaging external actors under article 87 (7) of the Statute would be an effective measure to foster cooperation’.[52] Accordingly, the Chamber considered it appropriate to remand the Impugned Decision for the Trial Chamber to determine whether Kenya has failed to comply with a cooperation request that has prevented the Court from exercising its functions and powers under the Statute and decide, if that is the case, whether or not to refer the matter to the ASP.[53] The Chamber decided that in determining whether there was a failure to cooperate within the terms of the first clause of article 87(7), the Trial Chamber should take into account ‘all relevant factors, including the evidence that was required in the cooperation request and the conduct of the parties to the proceedings’, but that the Trial Chamber ‘should avoid conflating the criminal proceedings against Mr Kenyatta with the proceedings under article 87 (7) and determine whether, at the time of the Impugned Decision, judicial measures to obtain the cooperation had been exhausted and consultations had reached a deadlock’.[54]

■ For more information about the Kenyatta case, read the Gender Report Card on the ICC 2014, p211-217; Gender Report Card on the ICC 2013, p120-129.

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Footnotes

1    ICC-01/09-02/11-382-Red, paras 428-429 and p 154.
2  ICC-01/09-02/11-886, p 5. See also Gender Report Card 2014, p 212.
3   ICC-01/09-02/11-875, paras 3, 17-19; ICC-01/09-02/11-866-Red, para 31. See also Gender Report Card 2014, p 212.
4  ICC-01/09-02/11-878-Red, para 5. See also Gender Report Card 2014, p 212.
5  ICC-01/09-02/11-908, para 98 and p 46. See also Gender Report Card 2014, p 212-215.
6   ICC-01/09-02/11-944, paras 4 and 6. On 10 September 2014, the Defence filed its response, opposing the Prosecution’s request for further adjournment and requested the Chamber to terminate the proceedings. ICC-01/09-02/11-945-Conf. A public redacted version was filed on the same day as ICC-01/09-02/11-945-Red.
7  ICC-01/09-02/11-954, p 8.
8   ICC-01/09-02/11-T-32-ENG.
9   ICC-01/09-02/11-981, p 26.
10   ICC-01/09-02/11-866, para 1. See also Gender Report Card 2014, p 212.
11   ICC-01/09-02/11-982, p 46.
12   ICC-01/09-02/11-982, para 39.
13   ICC-01/09-02/11-982, para 40.
14   ICC-01/09-02/11-982, para 41. The Chamber held that as the adjournment period granted had come to an end, it was appropriate to ‘assess the status of cooperation and definitively rule upon the Article 87(7) Application’. ICC-01/09-02/11-982, para 44.
15   ICC-01/09-02/11-982, paras 46, 48.

16   ICC-01/09-02/11-982, para 74.
17   ICC-01/09-02/11-982, para 75.
18   ICC-01/09-02/11-982, para 76.
19   ICC-01/09-02/11-982, para 77.
20   ICC-01/09-02/11-982, para 78.
21   ICC-01/09-02/11-982, para 79.
22   ICC-01/09-02/11-982, para 82.
23   ICC-01/09-02/11-982, para 82.
24   ICC-01/09-02/11-982, para 86.
25   ICC-01/09-02/11-982, para 89. The Chamber stated that while the factors considered above do not excuse the conduct of the Kenyan Government, ‘they have influenced the Chamber in the exercise of its discretion under Article 87(7) of the Statute’, and emphasised that ‘each application must be considered in its own particular context and, for the reasons described above, the Chamber does not consider it appropriate to make a referral of the matter to the ASP on this occasion’. ICC-01/09-02/11-982, para 90.
26   ICC-01/09-02/11-983, para 1.
27   ICC-01/09-02/11-983, para 2.
28   ICC-01/09-02/11-983, para 3.
29   ICC-01/09-02/11-984.
30   ICC-01/09-02/11-984, para 5. The LRV also noted that the Government of Kenya should support those efforts, in accordance with the Statute and the International Crimes Act 2008, and that if ‘it does not, the Prosecution should deal firmly and swiftly with any further non-cooperation by the Government by making such applications as are necessary in accordance with article 87(7) of the Rome Statute’. ICC-01/09-02/11-984, para 6.

31   In addition, the LRV stated that he had received reports of ‘security concerns, in the Rift Valley region, following the dropping of the charges’. ICC-01/09-02/11-984, para 7.
32   ICC-01/09-02/11-984, para 23.
33   ICC-01/09-02/11-984, para 23.
34   ICC-01/09-02/11-984, para 43.
35   ICC-01/09-02/11-984, paras 48-49.
36   ICC-01/09-02/11-984, para 51.
37   ICC-01/09-02/11-984, para 52. The LRV therefore stated that it ‘is imperative that the Prosecution take all the steps it can to follow through on the justice process for SGBV victims in Kenya’, emphasising that ‘many thousands of them – and not only those formally accepted to participate in this case – have been led for over four years to believe that the ICC will deliver justice’, and for ‘the Prosecution to walk away from these victims without taking all steps available under the Statute to defend their interests in the face of state obstruction of justice would be shameful’. ICC-01/09-02/11-984, para 53.
38   ICC-01/09-02/11-984, para 54.
39   ICC-01/09-02/11-984, para 55.
40   ICC-01/09-02/11-984, para 56.

41   ICC-01/09-02/11-984, para 56.
42   ICC-01/09-02/11-984, paras 56-57.
43   ICC-01/09-02/11-1005, para 10.
44    ICC-01/09-02/11-1005, para 10.
45   ICC-01/09-02/11-1006.
46   ICC-01/09-02/11-1006, para 4. The Prosecution noted that the ‘Chamber’s failure to refer, if not corrected by the Appeals Chamber, would allow the GoK (and indeed other States Parties) to follow a similar obstructive course in future cases’. ICC-01/09-02/11-1006, para 5.
47   ICC-01/09-02/11-1032.
48   ICC-01/09-02/11-1032, para 53.
49   ICC-01/09-02/11-1032, paras 54, 56.
50  ICC-01/09-02/11-1032, para 90.
51   ICC-01/09-02/11-1032, paras 90-91.
52   ICC-01/09-02/11-1032, para 93.
53   ICC-01/09-02/11-1032, para 94.
54   ICC-01/09-02/11-1032, para 95. The Chamber further decided that if the Trial Chamber concludes that there has been such a failure to comply with a cooperation request, the Trial Chamber ‘should make an assessment of whether a referral of Kenya to the ASP would be an appropriate measure to seek assistance to obtain the requested cooperation or otherwise address the lack of compliance by Kenya, taking into account, inter alia, considerations and factors referred to in paragraph 53 above’. ICC-01/09-02/11-1032, para 96.

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