Their failure to refer Kenia prejudices future charges and makes Kenia saintly while effectively portraying Bensouda as a mad woman; she is whining about non-cooperation and the court does none of the least expected that is 'sue' Kenia. They left her dangling in the wind.
The reason they will not refer Kenia is because they have no confidence in Bensouda rants
Throwing in the towel. I take that back. While indistinguishable from throwing in the towel from a practical perspective, that is not the intent of the decision.
The judges have no faith that the ASP would uphold their findings. Something that would prejudice future charges and effectively sanitize Kenya's behavior.
Just scanning through the decision. It makes sense to conclude they have no confidence in ASP upholding their position on GoK cooperation. That they explicitly say it does not prejudice future charges, would seem to convey their opinion on the question of future charges.