In September 2016, President of the ICC referred Kenya to the Assembly of States Parties of the Rome Statute ("ASP") for a finding of non-compliance under Article 87(7) of the Statute” in the case of The Prosecutor v. Uhuru Muigai Kenyatta.
Typically, the ICC primarily relies on State cooperation but lacks enforcement or punitive repercussion on a member-state that fails/declines to
cooperate. The Court can only make a finding to that effect and refer the matter (concerning non-cooperation) to the ASP and the Security Council. This measure, as was taken against Kenya was also meted against Jordan for alleged failure to cooperate. Upon the indictment of Al Bashir in 2009, the ICC required member-states to arrest the Sudanese President should he step in the country signatory to the Rome Statute. This direction was in line with the cooperation obligation under Article 86 and 91. African countries including, Kenya, Chad, and South Africa did not failed to arrest Al Bashir. The ICC condemned the failure but, due to lack of an enforcement mechanism nothing more could be done by the Court.
In 11th December 2017, Pre-Trial Chamber II of the International Criminal Court ("ICC" or "Court") found that the Hashemite Kingdom of Jordan, a State Party to the ICC Rome Statute since 2002, failed to comply with its obligations under the Statute by not executing the Court's request for the arrest of Omar Al-Bashir and his surrender to the Court while he was on Jordanian territory attending the League of Arab States' Summit on 29 March 2017. The Chamber decided to refer the matter of Jordan's non-compliance to the ASP and the United Nations Security Council ("UNSC"). Jordan appealed against the decision to the Appeals Chamber of the International Criminal Court but the Pre-Trial Chamber's decision was affirmed on 6th May 2019.
Almost three years after Kenya's referral to the ASP, nothing has come out of it. Now, we continue waiting!
#NLMJke - Did you know that through a TWEET, States can comply with cooperation obligation under the Rome Statute? See Report of the ASP Bureau on Non-Cooperation.
