Assembly of State Parties Unlikely to Assist Bensouda in Uhuru's ICC Case

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With the increasing possibility that President Uhuru Kenyatta's ICC case is headed to the Assembly of State Parties for non-compliance, there is little indications that global powers will step up and give the institution political backing. Legal experts say that the court’s 122 signatory states – known collectively as the ASP – lacks enforcement powers and will not assist Prosecutor Fatou Bensouda to secure Uhuru's finical records, which she hopes could bolster her case. Bensouda's problem is further compounded by the warming up of the US and Britain to Kenya despite initially warning of “consequences” of electing an ICC indictee as President.

During Uhuru's Status Conference on Wednesday, prosecutors maintained that their cooperation with Kenyan government had collapsed and made a passionate plea to the judges to refer Kenya to the ASP to be compelled to provide evidence. “The Kenyan government is not going to give to us what we are asking for,” senior trial lawyer Benjamin Gumpert insisted. “That is why we are at a deadlock. We are reverting to our request for a finding of non-compliance on the part of the Kenyan government”. However, international justice experts say that the ASP is unlikely to assist the ICC to secure Kenya's cooperation.

Clair Duffy, formerly of the International Bar Association says the assembly lacks compulsion powers and is limited to deploying political and diplomatic efforts to respond to non-cooperation. “I'm not sure what the ASP can do, other than issue statements and try to make sure its individual member states take action to encourage Kenya to cooperate with the court,” said Mark Kersten, a doctoral researcher at the London School of Economics. “It would certainly be an unprecedented development if the ASP homed in on one specific state and attempted to force its members to act.” Other observers agree that harsh measures such as sanctions are unlikely, but point out that a simple referral to the ASP might still have negative repercussions for Kenya.

Luke Moffett, a law lecturer at Queen’s University in Belfast, said he would expect the ASP to respond to any future referral by issuing a statement calling on Kenya to cooperate with the ICC. He said the ASP might also ask civil society groups to increase pressure on Kenya, arguing that such steps could affect diplomacy, trade and tourism in Kenya. “The ASP is perhaps toothless, but not entirely useless,” he observed. “It may not be able to bite a state through sanctions, but its bark of highlighting the non-cooperation of a state party can bring international condemnation, public outcry, and media attention.” Experts are also doubtful that ICC member states would want to make an example of Kenya, citing the manner in which the twin Kenyan cases have unfolded after Uhuru and his Deputy William Ruto were elected into office.

Both Nairobi and the African Union – which includes 34 ICC member states – have asked the court and the Security Council to terminate the two Kenya cases. They also made an unsuccessful request to the Security Council to delay the cases by a year, besides urging Uhuru not to show up as sitting President before the court. Anthony Dworkin, senior policy fellow at the European Council on Foreign Relations, said that such tensions would make the ASP reluctant to act against Kenya. “I think the ASP will proceed very cautiously on this question, because of the sensitivity of the court’s relations with African countries,” he said. Africa's resistance to putting incumbent state officials on trial has been met with sympathy from the ASP.

During its annual meeting in The Hague in November last year, the ASP scheduled a debate, at the AU’s request, on the problems associated with prosecuting a sitting head of states. The move followed calls from the AU to change the Rome Statute to grant heads of state immunity from prosecution as long as they were in office. Kenya has since tabled a formal proposal to this effect. In what some saw as another effect of Kenyan and AU pressure, Britain and other European states then proposed an amendment to the court’s rules which enables judges to allow senior public officials to be absent from trial in The Hague.

The rule was subsequently changed with unanimous agreement, highlighting the kind of concessions that states are prepared to make over ICC cases. Uhuru and other African leaders dined with President Uhuru Kenyatta during the US-African summit and returned to New York in less than a month where he addressed the United Nations General Assembly. “No party or state has an interest in the ICC-Kenya matter blowing up in a major diplomatic or political row,” Kersten said. Clair Duffy, formerly of the International Bar Association says that if the Trial Chamber makes a finding of non-cooperation against the government of Kenya, a number of options are available to the ASP.

“These include holding an Emergency Bureau meeting: where the matter is needs urgent action,” she stated. “Alternatively, the President of the ASP could write an open letter to the Republic of Kenya reminding it of its obligation to cooperate and requesting its views on the matter within a specified time limit of no more than two weeks,” She also says that the ASP President could send a copy of that letter to all States Parties, encouraging them to raise the matter in bilateral contacts with Kenya, where appropriate. “Other actions could be taken at the next ASP session, including a public meeting, allowing for participation of civil society,” Ms Duffy stated.

Article 87(7) of the Rome Statute provides: “Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council." The twin Kenyan cases were not referred to The Hague by UNSC and hence the ASP option.