Non-Compliance and the Law and Politics of State Cooperation: Lessons from the Al Bashir and Kenyatta Cases

Lorraine Smith-van Lin

1 Introduction

In December 2014, the case against Kenyan President Uhuru Kenyatta before the icc collapsed.1 Describing it as a ‘dark day for international criminal justice’, icc Prosecutor Fatou Bensouda conceded that it was no longer possible for her to fully investigate and prosecute the crimes charged in the case and she withdrew the charges.2 One key reason cited by the Prosecutor was the failure by the Kenyan Government to cooperate and respond to otp requests for President Kenyatta’s financial records and other potentially evidentiary material.3 Professor and human rights scholar Michael Ignatieff described the Prosecutor’s decision as a ‘clear retreat in the fight against impunity, at least as it relates to heads of State’.4 The decision to withdraw came after

1 Charges against Kenyatta were withdrawn by the Prosecution on 5 December 2014. See icc, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, ICC-01/09-02/11-983 (5 December 2014). The Trial Chamber formally termi- nated the proceedings against the defendant and formally discharged him from the summons to appear. See icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the withdrawal of charges against Mr. Kenyatta, ICC-01/09-02/11-1005 (13 March 2015). 2 See ibid icc, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta (2014). See also icc-otp, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta’, icc, 5 December 2014, available at: www.icc-cpi.int/en_menus/icc/ structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20 statements/statement/Pages/Adjourn-Kenyatta-05-12-2014.aspx (last accessed 4 August 2015) hereafter Statement of the Prosecutor on withdrawal. 3 Ibid icc-otp, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta’ (2014). See also icc-otp, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the status of the Government of Kenya’s cooperation with the Prosecution’s investigations in the Kenyatta case’, 5 December 2014, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20state- ments/statement/Pages/Stmt-05-12-2014.aspx (last accessed 4 August 2015). 4 Ignatieff, ‘International Justice possible only when in the interest of Powerful States’, ictj Debate, 9 February 2015, available at: www.ictj.org/debate/article/justice-interests-of- powerful-states (last accessed 4 August 2015).

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Judges of the icc Trial Chamber declined the Prosecutor’s application for fur- ther adjournment and a finding of non-compliance against Kenya and referral to the asp for measures to be taken.5 Non-cooperation with ICC decisions is not peculiar to the Kenyatta case. The ICC has struggled to secure the arrest and surrender of Sudanese President Omar Al Bashir for whom an arrest warrant has been outstanding for several years.6 In March 2015, the Judges of Pre-Trial Chamber II issued a formal finding of non-compliance against the Sudanese Government for failing to arrest and surrender Al Bashir, adding to the growing list of such decisions issued against African States Parties.7 There are notable points of comparison between the Al Bashir and Kenyatta cases as well as significant points of departure. Both accused are sitting Heads of State; both are African leaders alleged to have committed egregious crimes against their own people; from a political perspective, both cases provide fod- der for anti-ICC rhetoric and derogatory designations of the icc as a Western construct for oppression of African leaders. But President Al Bashir is the leader of a country which has not accepted the icc’s jurisdiction and which has made clear its intention never to arrest or surrender Al Bashir or any other Sudanese national wanted by the icc.8 Kenya on the other hand has been an icc State Party since 2005 and President Kenyatta voluntarily appeared before the Court in response to a summons to appear.9 Both cases share the dubious link of non-compliance with icc decisions.

5 icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a fur- ther adjournment, ICC-01/09-02/11-981 (3 December 2014) and icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11-982 (3 December 2014). 6 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan, ICC-02/05-01/09-227 (9 March 2015). 7 See e.g. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-151 (26 March 2013). 8 Abdelaziz, ‘Sudan’s President Omar al-Bashir claims victory over icc after it drops Darfur war crimes investigation’, The Independent, 17 March 2015, available at: www.independent. co.uk/news/world/africa/sudans-president-omar-albashir-claims-victory-over-icc-after -it-drops-darfur-war-crimes-investigation-9924471.html (last accessed 4 August 2015). 9 icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC- 01/09-02/11-01 (8 March 2011).