On 19 August 2015, the Appeals Chamber of the International Criminal Court (ICC) reversed Trial Chamber V(b)'s decision regarding the alleged non-compliance by Kenya with its cooperation obligations under the Rome Statute in The Prosecutor v. Uhuru Muigai Kenyatta. (President Kenyatta was accused of five counts of crimes against humanity in the context of the 2007-2008 post-election violence. The case proceedings were terminated on 13 March 2015 following the withdrawal without prejudice of the charges due to failure to obtain sufficient evidence and "in light of the Trial Chamber's rejection of the Prosecution's request for an adjournment until the Government of Kenya complies with its co-operation obligations under the Rome Statute" (Notice of withdrawal, 5 December 2014, para. 2)).
On 3 December 2014, Trial Chamber V(b) had rejected an application by the Prosecution for a finding of non-cooperation against Kenya and for referral of this matter to the Assembly of States Parties (ASP) of the ICC. The Prosecutor's application alleged that Kenya had failed to comply with cooperation requests to produce records relating to President Kenyatta.
In accordance with Article 86 of the Rome Statute, all States Parties are obliged to cooperate fully with the Court in its investigations and prosecutions. Article 87(7) of the Statute provides that if a State Party fails to comply with a request to cooperate with the Court, thereby preventing the Court from exercising its functions and powers, the Court can make a finding of non-cooperation and refer the matter to the ASP (or to the Security Council if the situation was referred to the Court by the Council). However, the Trial Chamber declined to refer the matter to the ASP even though it held that the threshold of non-compliance under Article 87(7) had been reached.
The Prosecutor appealed this decision on 20 March 2015, raising two grounds of appeal. According to the Prosecutor, the Trial Chamber erred:
(i) in law by not referring Kenya to the ASP, when it had made a finding under article 87 (7) of the Statute that Kenya had not complied with the Prosecutor’s request for cooperation and that this non-compliance prevented the Court from exercising its functions and powers;
(ii) if the Trial Chamber had discretion not to refer Kenya to the ASP, it erred in exercising its discretion “by taking into account extraneous or irrelevant considerations and by failing to take into account or give sufficient weight to relevant considerations”. (Document in Support of the Appeal, para. 4.)
As to the first ground of appeal (alleged error of law), the Appeals 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" (para. 54). The Appeals Chamber accordingly rejected the Prosecutor's first ground of appeal.
In regard to the second ground of appeal (alleged error in the exercise of discretion), the Appeals Chamber first considered that (para. 77):
[A] referral could have an impact on future cooperation considered more broadly, including for ongoing investigations even if it were to be considered inappropriate for continuing the trial at hand. In this regard, the Appeals Chamber considers that future cooperation by the requested State is indeed a factor to be taken into account when deciding on the appropriateness of a referral. [...] Regardless of the Adjournment Decision and the withdrawal of the charges, the Trial Chamber was and remains competent to decide on whether it would be appropriate to refer Kenya’s non-compliance to the ASP either to seek a concrete remedy for the lack of cooperation in the case at hand or to foster cooperation more broadly for the sake of any proceedings arising out of investigations in the situation.
However, the Appeals Chamber found that the Trial Chamber had erred in the exercise of its competence to decide on Kenya's non-cooperation and the appropriateness of a referral. The Appeals Chamber considered:
80. In the Appeals Chamber’s view, the Trial Chamber’s assessment that the “possibility of obtaining the necessary evidence, even if the Revised Request was to be fully executed, is still nothing more that [sic] speculative” (emphasis added) is clearly contradictory with the Trial Chamber’s finding that Kenya’s non-cooperation with the Revised Request “ultimately impinged upon the Chamber´s ability to fulfil is mandate under [a]rticle 64, and in particular, its truth-seeking function in accordance with [a]rticle 69(3)” (emphasis added). Such a patent contradiction makes the first assertion unreasonable and calls into question the second one.
81. Indeed, such contradiction raises the question as to whether the Trial Chamber made a proper determination of a failure to cooperate of a certain gravity, as required by the first clause of article 87 (7) of the Statute. [...] [T]his first clause includes an essential factual prerequisite for any referral, namely a failure to cooperate which prevents the Court from exercising its functions and powers under the Statute. If the Trial Chamber was uncertain about the importance of the evidence, it is unclear why the Trial Chamber concluded that the lack of the requested evidence prevented the Chamber from exercising its functions, as required in that clause. The Appeals Chamber also notes in this regard that the conflation of the trial proceedings against Mr Kenyatta and the non-compliance proceedings appears to have affected the Trial Chamber’s consideration of whether judicial remedies had been exhausted, or whether there was still a possibility that Kenya would cooperate. In the view of the Appeals Chamber, the conclusion that a deadlock is reached with regard to a cooperation request is a key factor to determine the existence of a failure to comply with such request. Thus, and contrary to the Prosecutor’s arguments, the Appeals Chamber considers that the Trial Chamber did not make a clear finding as to whether such remedies had been exhausted. The Trial Chamber explicitly acknowledged in the Impugned Decision that it considered it appropriate to decide on the Prosecutor’s Article 87 (7) Application at this stage because “allowing a further adjournment would be contrary to the interests of justice under the circumstances, rather than because the Chamber finds there to be no possibility of further cooperation” (emphasis added).
Based on these considerations, the Appeals Chamber concluded that (para. 90):
...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.
Moreover, the Appeals Chamber held that (para.91):
... 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.
Accordingly, the Appeals Chamber decided (para. 98) "to reverse the Impugned Decision and to remand it 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, if so, to make an assessment of whether it is appropriate to refer Kenya’s non-compliance to the ASP."
The Trial Chamber now has a second chance to get its cooperation considerations right.