As Kenyans await the International Criminal Court ruling on whether to throw out President Uhuru Kenyatta’s case or adjourn indefinitely, the prosecutor is pleading with the United Nations to help in enforcing co-operation with the court.

Prosecutor Fatou Bensouda has requested the UN Security Council to not only use stronger language to ensure that all UN members co-operate in apprehending those who have been indicted, but also address non-co-operation.

While briefing the UN Security Council on October 23, Ms Bensouda suggested the establishment of a Focal Point to link the ICC, the Council and the Assembly of State Parties (ASP) to address non-cooperation, and subsequent correspondence with the Council.

Legal experts close to the ICC trials hinted to The EastAfrican that Ms Bensouda was trying to reach out to the Council regarding the difficulties her office is experiencing in trying to make countries co-operate, especially with the Kenyan cases, where the ICC had to apply Article 15 for the first time in its history.

READ: ICC meeting to discuss Kenya’s co-operation

The Article allows the prosecutor to initiate proceedings where a country is unwilling or unable to prosecute perpetrators of international crimes in its courts.

On September 5, the prosecutor issued a notice to the court that she was unable to proceed with the Kenyatta case as scheduled on October 7 because the Kenya government had refused to co-operate in providing President Kenyatta’s telephone records, bank accounts and records of assets.

The prosecutor then sought adjournment until the government of Kenya executed the Prosecution’s Revised Request for records in full, forcing the judges to call for a Status Conference on October 7 and 8.

The Kenya government—through Attorney-General Prof Githu Muigai —has maintained that it has co-operated fully with the court orders but the Prosecution has not been specific about what it wants.

In another development, the victims’ lawyer Fergal Gaynor has asked the court to reclassify some documents as public after the Chamber ordered the Registry on October 21 to reclassify others that were previously classified.

The lawyer further requests the Chamber to order the Prosecution to file a public redacted version of its pre-trial brief.

“The victims, the state parties, and the general public are now entitled to have access to this information to the greatest extent possible,” writes Mr Gaynor.

The Chamber, while giving the order, had mentioned the Kenyan government for its breach of confidentiality by leaking classified information to the media. Legal experts told The EastAfrican that the victims’ lawyer is simply saying that the coverage of the ICC cases in the Kenyan media has been giving a false sense that the prosecution case is extremely weak while the defence’s is inordinately strong.

“In his view, there appears to be a deliberate strategy by which defence attacks on the prosecution and the witnesses, even the confidential information, find their way to the media, while the prosecution’s positions do not,” said a legal expert who requested anonymity.

The case against Deputy President William Ruto and journalist Joshua Sang — which resumed on September 10 — is also experiencing another duel with the prosecutor over whether the witnesses who recanted their testimonies should be forced to testify.

The Appeals Chamber on October 9 upheld the decision of a lower chamber to summon the nine witnesses to testify. The case has taken a break until November 17.

Ms Bensouda also talked of challenges with the Sudanese cases facing President Omar al-Bashir and leaders of the Janjaweed in Darfur. She suggested that the Council come up with a mechanism for follow-up on its referrals and use stronger language to ensure that all UN-member states enforce arrest warrants once issued. For example, the Council has made 55 resolutions on Darfur but very few had been implemented.

“If the Council’s repeated resolutions calling for disarmament of the Janjaweed had been respected, for example, it would have almost certainly had an impact on implementation of my Office’s investigations,” she said.

She suggested that the UN consider using stronger language in its referrals, similar to the language used in past Council resolutions requiring co-operation from all states with the UN International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.

Assistance

“There are many instances in which the ICC needs to call upon non-state parties to the Rome Statute for their assistance, and while many have responded positively, those that have not, have effectively provided a safe haven for individuals against whom warrants of arrests have been issued by the ICC,” she said.

African Union leaders have consistently refused to enforce the warrant of arrest issued against President al-Bashir in 2009.

Last year, the Assembly of State Parties president Tiina Intelmann warned that the way the Council refers situations to the Court does not empower the Court to deal with extremely complex issues. For example, co-operation with the Court, including the execution of arrest warrants, applies only to States Parties to the Rome Statute and the country referred.

“The legal and diplomatic means are not enough where the referred country refuses to co-operate. This constitutes a serious weakness, produces a delay in delivering justice and ultimately a feeling of abandonment, desperation and continued injustice in affected communities.”

But she saw co-operation in the Council’s increased reference to the Court’s work and contribution to the fight against impunity and to international peace and security. She said that the authors of the Rome Statute and the States Parties to the Statute have been proud of the independence of the ICC.