International Criminal Court
statutory power to initiate investigations proprio motu, the Court’s ability to enforce its judgments is limited by state consent and cooperation. As a result, non-cooperating state parties control the ebb and flow of the Court’s power to prosecute.
Presently, of the six officials originally indicted, only three - Kenyatta, Ruto, and radio broadcaster Joshua Sang - are still being charged with crimes against humanity. Yet, even now, the fate of the proceedings is up in the air. In February 2014, Chief Prosecutor Fatou Bensouda requested that the Prosecutor v. Kenyatta case be adjourned until October, conceding that the ICC presently lacks enough evidence sufficient to sustain a trial. Likewise, a March 31 ruling, issued after the with- drawal of two vital witnesses, predicted that the Kenyatta case would probably self-destruct within the next few months.11
The ruling acknowledged
Chief Prosecutor Bensouda’s previous statement that the trial could not realistically proceed at this rate, even if the Kenyan government complied with its request for President Kenyatta’s financial records.
Ultimately, the March 31 ruling was prophetic: On September 5, 2014, the Kenyatta case came to a premature end after prosecutors admitted that they were not “in a position to proceed.”12
Chief
Prosecutor Bensouda surrendered that, as long as the Kenyan government refuses to execute the Prosecution’s revised request for the records, the trial will have to be adjourned. Unless the state cooperates by handing over the financial records, the prosecution will not be able to gather enough evidence to establish a strong case against the Kenyan President. Still, she contended, the pros- ecution was in this position because the govern- ment “so far failed fully to comply with its obliga- tions to the court.”
If the prosecution withdrew the charges, prompt- ing the ICC to permanently adjourn the case, it may send the message that states may act with impunity without fear of international reprisal. To
do so would undermine the fragile legal footing the ICC stands on. That is why, in their March 13 ruling, the judges held that states may not plead their inability to prosecute crimes domestically as a defense to complying with their international ob- ligation to cooperate with the Court, nor may they cite such deficiencies to prevent the Court from issuing a finding of non-compliance. The collapse of the Kenyatta case, however, is a testament to what can happen when non-cooperation proves to be a successful defense to an international prosecution. .
State Consent and Cooperation at the ICC
State consent lies at the heart of proprio motu in- vestigations, as the Prosecutor derives his or her authority from the prior consent of state parties to the Rome Statute. Instead of navigating through labyrinthine domestic politics to receive state con- sent that is contemporaneous, the ICC looks at whether states implicitly gave their consent upon their signing and ratification of the Rome Statute. Yet, this results in a legal catch-22. States at the center of a proprio motu investigation may out- wardly state their consent, while privately inter- fering with the proceedings, believing the ICC’s actions to be not in their (or the state’s) best inter- ests. Thus, prior state consent does not necessar- ily entail future cooperation.
As a party to the Rome Statute, Kenya has the general obligation to cooperate fully with the ICC.13 This obligation, pursuant to article 86, extends to the investigation and prosecution of crimes within the Court’s jurisdiction. Likewise, the ICC has the authority to request its cooperation and may take any reasonable judicial measures to ensure ex- ecution of the request. If a state party, like Kenya, fails to cooperate (in contravention of the Rome Statute), the Court may issue a ruling of non-com- pliance and refer the matter to the Assembly of State Parties for further deliberation. At this point, the Assembly of State Parties may take any mea-
ILSA Quarterly » volume 23 » issue 1 » October 2014
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