ICC Appeals Chamber reverses decision on Kenya’s Cooperation

ICC Judge Silvia Fernández de Gurmendi, Presiding Judge, during the delivery of the Appeals Chamber judgment regarding the Kenyan Government’s alleged non-compliance with its obligations under the Rome Statute in the Kenyatta case. Retrieved from the Diplomat Magazine (


On 19th August 2015, the Appeals Chamber of the International Criminal Court reversed Trial Chamber V (B)’s rejection of the Prosecutor’s application concerning alleged non-compliance of the Kenyan Government to its obligations under the Rome Statute of the International Criminal Court in the case of The Prosecutor vs. Uhuru Muigai Kenyatta. The Appeals Chamber found errors in the Trial Chamber’s Assessment and sent the case back to the Trial Chamber to determine whether, in light of relevant factors, Kenya had failed to comply with the cooperation request thereby preventing the Court from exercising its functions and powers. If this was the case, the Trial Chamber was to make an assessment whether or not to refer Kenya’s non-compliance to the Assembly of State Parties (ASP).

On 29 November 2013, the Prosecution filed an application of non-cooperation by the Kenyan government claiming that the government had failed to comply with the request to produce records relating to the case against Mr. Kenyatta. On 3 December 2014, the Trial Chamber V(B) rejected the application for referral of the matter to the Assembly of State Parties. The Trial Chamber was not convinced that a referral would facilitate a fair trial, was in the interests of justice or was appropriate in the particular circumstance. With the authorisation of that Chamber, the Prosecutor appealed this decision on 20 March 2015.

On 19th August 2015, Judge Silvia Fernández de Gurmendi, the presiding judge in the appeal delivered a summary of the Appeals Chamber’s decision to reverse. The decision emphasized that in determining whether a State had violated its obligations to cooperate, all relevant factors must be taken into account including the evidence required in the cooperation request and the conduct of the parties to the proceedings.


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