Pre-Trial Chamber I issued a decision this week informing the Security Council on the lack of Cooperation from Sudan in the Harun and Ali Kushayb case. In itself, it’s not a surprising decision, given Sudan’s stated refusal to cooperate with the Court, although one can hardly imagine that the Security Council didn’t know already, given that the Prosecutor himself, in his yearly reports to the UNSC, has repeatedly complained of Sudan’s lack of cooperation.
The decision is however debatable in many ways. Others have already pointed out some of the problems. I agree with Professor Sluiter that it is problematic that Sudan wasn’t heard in the proceedings, which doesn’t give a very good image of the process, especially given the absence of a right of appeal. Also, the presentation of the reasoning is indeed quite enigmatic. But I do find the criticism of the “French style” of drafting a little unfair. The French, unfortunately, do not have the monopoly of poor and unclear reasoning, and it is possible to refer to countless “common law style” decisions that are equally enigmatic… I also agree with Professor Schabas in his criticism of the more than doubtful use of the concept of “inherent powers”, with the sole reference to Blaskic, given the ambition of the drafters to explicitly avoid this kind of reasoning.
In addition to the previous comments, I would like to add a few words on the main reason why this decision is so unsatisfactory, which brings us back, beyond the poor legal reasoning of judges, and as is often the case, to the poor drafting of the Statute itself.
Cooperation of States is generally covered by Article 87 of the Statute. It lays down the procedure to be followed by the Court in presenting requests for cooperation. However, it deals mostly with State parties. In this sense, the obligation to hear Sudan, if politically desirable, was not in fact a legal requirement under the Statute and Regulation 109 of the Court, as suggested by Professor Sluiter, because the latter regulation refers explicitly to Article 87(7), which applies to non-compliance by State parties only.
In relation to non-State parties, one has to look at article 87(5), which reads as follows:
(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.
As we can see, it seems difficult to apply this provision to Sudan. For one, under sub-paragraph (a), given that Sudan has neither done an ad hoc arrangement or an agreement, the legal basis for a request for cooperation can only be the “any appropriate basis”, in which one could easily put the Security Council Chapter VII referral resolution which explicitly called on Sudan to cooperate with the Court.
But what about the possibility under consideration here, that is to notify the Security Council of non-compliance? This is where the problem arises: subparagraph (b) only refers to this possibility for non-State Parties that have entered into an agreement with the Court, which is clearly not Sudan’s case. Which means that in fact a literal application of the Statute prevents the Court from notifying the Security Council of the non-cooperation of a non-State Party.
This is a terrible oversight in the drafting process. Once the drafters had allowed the Security Council to refer a situation in a non-State party, the logical consequence should have been to allow the Court to make a notification of non-compliance like with any other State and Article 87(5)(b) should have provided for that kind of event. The judges wouldn’t have had to resort to flimsy argumentation if the drafters had done their homework.
This being said, with this drafting anomaly in mind, the judges could have still done a better work. For example, if one accepts that a Security Council Resolution is an “appropriate basis” under 87(5)(a) and that 87(5)(b) is logically meant to apply to situations covered by 87(5)(a), then the theory of the useful effect (effet utile) could allow the judges to read the “appropriate basis” part in 87(5)(b) and therefore permit a notification to the Security Council. Of course, it’s not perfect, but it would at least give a statutory basis to the procedure, avoiding the more debatable reference to “inherent powers”.
Finally, this poses the question, once again, of the opportunity of the Security Council referral mechanism as it was set up, especially when it allows a situation in a non-State party to be brought before the Court. I’ve expressed my skepticism before on this issue, more particularly on the alleged power given to the Security Council to effectively make a State comply with the provisions of a treaty that it didn’t sign. You can call it my “French style” approach to international law, but this has always seemed to me to be contrary to basic principles of international law…