In this report, the history of the Kenya Government’s failure to cooperate with the ICC leading to the collapse of the Kenyatta case was chronicled. It identifies gaps in the cooperation enforcement regime of the Rome statute and offers some suggestions as to how to ensure that the Rome Statute system is not slow-punctured by recalcitrant states to the detriment of victims of mass crimes. Before the Prosecutor withdrew the charges
against Uhuru Kenyatta due to, inter-alia, alleged non-cooperation from the Government of Kenya the International Criminal Court stood at a crossroads. Had the case been referred to the States Parties after a finding of non-compliance,
they would have been faced with the choice
either to bow to the political pressure that was being exerted by Kenya and her allies under the guise of state sovereignty and extraneous arguments relating to a supposed anti-African bias in the activities of the Court, or the States Parties strengthen the cooperation provisions enshrined in the Rome Statute and give the Kenyan victims the justice they cannot obtain from their own government – the justice they deserve and for which they have waited seven
years. In the event, the judges themselves saved the ASP from having to make this choice. However, the challenge paused to international criminal justice and the ICC by non-cooperating states remains. Unless the States Parties do all that they can to obtain cooperation from non-cooperative
states, the value and deterrent effect of the ICC will significantly diminish. The ICC will risk becoming the proverbial dog that barks but has no teeth to bite.
