The Appeals Chamber of the International Criminal Court on Wednesday unanimously referred Kenya’s noncompliance matter back to the Trial Chamber.
The Appeals Chamber found that the Trial Chamber erred in exercising its discretion, citing inconsistencies in how it weighed up certain factors.
“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 Appeals Chamber Presiding Judge Silvia Fernandez de Gurmendi, who read out in open court a summary of the five judges’ decision.
“In the present case, it is appropriate to reverse the Impugned Decision and to remand it for the Trial Chamber to determine, in light of all relevant factors as indicated above, 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 Judges granted the Office of the Prosecutor’s second ground of appeal which the office had said that:
“If the Appeals Chamber only grants the Prosecution’s Second Ground of Appeal, the Prosecution requests the Appeals Chamber to make the requisite findings and refer the GoK to the ASP pursuant to article 87(7), or in the alternative, remand the matter to the Trial Chamber to do so, with appropriate directions.”
“The Appeals Chamber hence remanded this decision to the Trial Chamber V(B) to determine, in light of relevant factors, whether Kenya has failed to comply with a cooperation request that has prevented the Court from exercising its functions and powers and, if so, to make an assessment of whether it is appropriate to refer Kenya’s non-compliance to the Assembly of States Parties (ASP).
On 29 November 2013, the Prosecution had filed an application for a finding of non-cooperation against the Kenyan Government, alleging that the Government had failed to comply with a request to produce records relating to Mr Kenyatta.
On 3 December 2014, Trial Chamber V(B) rejected the application for referral of the matter to the ASP.
The Prosecutor appealed this decision on 20 March 2015.
Judge Silvia Fernández de Gurmendi, Presiding Judge in this appeal, delivered a summary of the judgment in an open court session.
She indicated that the Appeals Chamber considered that Trial Chamber V(B) erred by failing to address whether judicial measures had been exhausted to obtain the Kenyan Government’s cooperation, as well as by assessing in an inconsistent manner the sufficiency of evidence and the Prosecutor’s conduct.
The Appeal Chamber hence reversed the Trial Chamber’s decision and remanded it for the Trial Chamber for a new determination.
Journalists for Justice