International Criminal Court
sure appropriate under the circumstances to en- force compliance.
Greater Enforcement of State Cooperation?
Under article 93, the ICC Prosecutor has the au- thority to independently request cooperation from state parties in regards to investigations and pros- ecutions.14
Yet, cooperation is not guaranteed even
if the Court rules that a state failed to comply with the Prosecutor’s requests for cooperation, since it has no mechanisms for enforcing compliance.15 Unless national authorities cooperate, internation- al tribunals cannot enforce warrants to arrest per- petrators, seize evidence, subpoena witnesses to testify before the court, or investigate scenes of alleged crimes. The lack of such mechanisms may be attributed to the fact that the Rome Statute is lenient when it comes to states’ pre-existing do- mestic and international legal obligations.
22
While many Kenyan officials, including President Kenyatta, have publically affirmed their support for the ICC, the government repeatedly refused to cooperate. Though a majority of critics agree the Kenya investigation itself was premature, many of the evidentiary deficiencies are the direct result of the government’s uncompromising, and often obstructive, actions. From the outset, the govern- ment has impeded access or contributed to the loss of vital pieces of evidence. Further, it failed to adequately protect victims and witnesses and, in some cases, is alleged to be primarily responsible for their disappearance or killings.16
Whether out of political intransigence or an ac- tual desire to obstruct proceedings, the govern- ment has continuously attempted to impede the investigation and prosecution. It has attempted to frustrate ICC proceedings through a range of methods, such as admissibility challenges to the Court’s jurisdiction, threats to withdraw from the Rome Statute, and constant refusal to provide or help the Court collect necessary evidence. Si-
multaneously, lower-ranked officials and civilians implicated for their roles in the electoral violence have largely slipped through the cracks of the do- mestic judicial system. The Kenyan Office of the Attorney has documented thousands of cases arising from the post-election crisis, but despite its efforts, it has scarcely prosecuted, much less convicted, the perpetrators, organizers, and finan- ciers of the violence.
The government’s recalcitrance in the face of numerous cooperation requests illustrates the Court’s lack of authority to enforce its own deci- sions. For instance, when the ICC requested the Kenyan government to provide Kenyatta’s finan- cial and telephone records spanning the period from June 1, 2007 to December 15, 2010, the government refused, withholding them from the Court.17
The Kenyan government was given two
years to fulfill this request, yet it still failed to com- ply. Moreover, during that period, the Kenyan of- ficials allegedly blocked ICC investigators from in- terviewing police officers and limited their access to telephone records essential for mounting their case.18
Still, the ICC is taking steps to enhance its own authority. On April 17, 2014, in light of the depar- ture of vital witnesses in the Kenyatta case, the Court granted the Prosecution’s request to issue subpoenas for eight witnesses in the Prosecutor v. Ruto case, who recently withdrew from par- ticipating.19
Surprisingly, not only did it issue the
subpoenas, but it also ordered the government comply under threat of sanctions. The ICC judges ruled that the Court has the authority to subpoena witnesses to testify, despite the defense’s argu- ments against the existence of this power, and could use compulsory measures to force them to comply. The Kenyan government, likewise, is ob- ligated to fully comply with the Court’s ruling by serving the subpoenas upon witnesses.
Prior to the subpoena ruling, many did not believe the ICC had the authority to enforce witness at-
ILSA Quarterly » volume 23 » issue 1 » October 2014
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