Category Archives: Security Council

You have just entered Narnia: ICC Appeals Chamber adopts the worst possible solution on immunities in the Bashir case

Posted on May 6, 2019 | 6 comments

This morning, 6 May 2019, the Appeals Chamber issued its Judgment on the Appeal filed by Jordan against an 11 december 2017 decision by Pre-Trial Chamber II whereby it was found that Jordan failed to comply with an order to arrest and transfer Bashir to the ICC because Bashir did not benefit from Head of State immunity in the context of a UNSC Referral. As a consequence, Jordan’s non-cooperation was referred to the UNSC and the ASP.

It was a long-awaited decision, touching upon fascinating issues of public international law, treaty interpretation, customary international law, effects of UNSC resolutions, etc. The process that led to the Judgment was itself fairly novel, the Appeals Chamber having invited and received amicus briefs from the AU, the Arab League and a dozen law professors, who, in addition to their written briefs, were heard and questioned by the Chamber at length over several days in September 2018.

This is a really difficult blog post to write, because the Judgment comes at the conclusion of 8 years of debates (since the 2011 Malawi decision), with many sub-plots and twists. Explaining comprehensively why this is a terrible decision therefore would ideally require some prior knowledge of what the stakes are and would require me to fill way too many pages for a blog.

Therefore, for a comprehensive overview of the issues and explanations of why the reasoning of the Appeals Chamber is not convincing, I simply refer you to the innumerable blog posts I’ve written on the topic (particularly my initial reaction to the Malawi decision back in 2011, which is relevant here given the fact that the Appeals Chamber dug it up from nowhere) and my comprehensive chapter on the issue (an earlier draft of which you can find here).

What I will do here is simply pick and choose some particular problematic or noteworthy aspects of the Chamber’s reasoning.

First of all, at the heart of the Appeals Chamber’s reasoning is the conceptual idea that there exists a concept of “international tribunal” that is not simply the “pooling” of the exercise of jurisdiction by States (see par. 115 of the Judgment). These “international tribunals” would have a different nature and would therefore not be subject to the same rules of international law than States are, which allows the Appeals Chamber to say that while Head of State immunity continues to apply between States, it does not apply before international tribunals. However, this reasoning is very problematic. Indeed, it relies on a moral, rather than legal basis, as seen in the claim that “international tribunals” act in the name of the “international community as whole” rather than individual States. But what is the “international community” as a whole from a legal perspective? It is of course never defined in the Judgment.

Moreover, where does the “pooling” of jurisdiction end and the “international tribunal” start? For example, if France and Belgium, who separately would not be able to arrest and prosecute a foreign head of State, create an “international tribunal” through a bilateral agreement, would that new institution be able to prosecute that same Head of State? I doubt it, because States cannot grant to an IO a power they do not possess. This is basic common sense. You can’t just avail yourself of this simple rule by essentially claiming the moral high ground. Also, what arrogance to claim that you are acting in the name of the “international community as a whole”, especially when you see in practice the opposition that exists to the ICC (whether it is justified or not is another issue).

Given the reasoning adopted by the Appeals Chamber on this point, I find it somewhat ironic that the Judges go on the explain that “The law does not readily condone to be done through the back door something it forbids to be done through the front door” (par. 127). Not only is there a slight Judge Dredd feeling about this sentence (who is the “law” exactly? “I am the law!”), but it is exactly what the Judges did to remove immunity in the first place: treaty rules might be a problem? let’s use the back door of the “international tribunal” and magically go through the cupboard into the magical Narnia world when standards rules of international law disappear under the benevolent gaze of the “international community as a whole”…

The key issue should not so much be what an abstract category of “international tribunal” would look like, but rather, in each specific circumstances how a tribunal was created and what effects it might have on third States. This requires no creativity whatsoever, but simply a basic application of public international law rules. In the case of the ICC, as a treaty body, there is simply no reason why it should bind third States and that should be the end of the discussion (the PTC in the Rohinga decision attempted to justify that the ICC could have an effect on third-States as an IO with objective legal personality, but their reasoning was not very convincing either). 

Second of all, as a consequence of the Judgment, Article 98(1) is rendered mostly meaningless. Of course, Article 98(1) does not actually list what immunities need to be respected by cooperating States, but it is somewhat difficult to imagine that if the drafters of the Rome Statute really thought that Article 27 removed all immunities, even in the horizontal relationship between States, as an established rule of customary international law, it would have bothered to introduce Article 98(1) in the first place.

Third of all, the consequences for third States are quite big.

1) this Judgment means that immunities cannot be claimed by nationals of non-State parties, even when the situation is not referred to the Court by the UNSC. In other words, even if a situation is opened through a State referral or a proprio motu decision by the Prosecutor, State Parties would have to arrest and surrender nationals of non-State parties who would otherwise benefit from immunity.

2) This is probably one of the weirdest consequences of the Judgment: because the Appeals Chamber claims the existence of a rule not just in the Rome Statute, but in customary international law, that there are no immunities before “international tribunals”, one could arguably claim that the obligation to arrest and surrender a person would rest not only on State parties but also on non-State parties, because customary law is binding on all States… this is of course a ridiculous proposition, but it shows the absurdity of the Judgment.

Fourth, I note that the AC makes no mention of the Malabo Protocol, which explicitly provides for Head of State immunity. Presumably, by the AC’s standards, the tribunal constituted by the Malabo Protocol would be an “international tribunal”. Therefore, it would be acting in the name of the “international community as a whole”, in claiming that immunities exist before “international tribunals”. Why would this not equally be evidence of a contrary customary international law?

Fifth, I note that the Appeals Chamber mentions in one paragraph that Jordan’s obligation to cooperate would also stem from the Convention against Genocide. This was the position taken in a separate opinion to the South Africa decision by Judge Brichambaut (see my commentary here). I was not entirely convinced by the argument at the time, but at least the Judge made an effort to analyse the Genocide Convention specifically and explain how it would be related to the Rome Statute. Here, there is no such effort and it is impossible to understand what the relevance of the Genocide convention is in the current proceedings. Maybe it was included as a possibility in a earlier draft of the Judgment and someone forgot to remove it, because as it stands, these few lines, which seem to be added as an afterthought, with no explanations, 1 footnote and no references, are completely useless.

Sixth, I don’t have much to add that I haven’t said in the past to the analysis provided by the Appeals Chamber of the “UNSC route”. Just a few quick thoughts:

1) It’s not entirely clear why the AC bothers with this section of the Judgment at all, given that the questions raised become essentially moot given the customary law avenue taken by the Chamber.

2) I do note that the reasoning provided by the AC is interesting when it comes to determine under what sections of the Rome Statute Soudan would be obliged to cooperate with the Court. I must say that on first reading, I am convinced with the argument according to which, given the language of the UNSC Resolution, Soudan would have to respect the cooperation provisions relating to State parties rather than non-State parties. However, this does not automatically mean that Soudan would be bound by Article 27, and on this the Judgment is less convincing.

3) I also note that the AC did not follow my friendly advice: it did not actually asked those States on the UNSC who wrote the referral if in fact they did intend to remove immunities. This would have been all the more interesting as some of these States have made public Statements to the contrary (see here).

Seventh, in relation to the referral of Jordan to the ASP and the UNSC, I remain a bit lost at what the legal framework is. In such discretionary matters, it seems more of a divination exercise than one of legal reasoning, so I don’t have much to say about that. I just wonder, maybe naively, when a referral will ever be justified. Indeed, when the Jordan cooperation issue comes up, there is 7 years of constant (if not consistent) case-law asking State parties to arrest and surrender Bashir. I have all the sympathy in the world for Jordan’s legal position, which I mostly share, but practically, in those circumstances, it is difficult to see Jordan’s non-cooperation as anything else but a clear refusal to comply with a clear order from the Court. How is that not sufficient for a referral? I’m wondering, but this is just me thinking out loud, whether the real issue is to avoid that this discussion be forced on the ASP/UNSC, bodies which might make statements that the Judges would not want to hear. Indeed, it would not look good if the UNSC or the ASP (under the pressure of the AU States) actually came out in defense of Jordan…

Eighth, while I have yet to read the separate opinion (I might blog on it later), I am not sure what to make of its existence. Indeed what are we taking about?  it is a separate concurring opinion which focuses on written by 4 of the 5 judges in relation to the 2  grounds of appeal for which the decision was unanimous. So basically, did the 5th Judge not agree with the content of the separate opinion? because if she had, it would be signed by all 5 judges, concurring with themselves and then this would just be another part of the Judgment… Also, as also noted by Hemi Mistry, there are regular cross-references between the Judgment and the concurring opinion, which raises the question of the exact status of the document. I hope to have more clarity when I actually read it.

In conclusion (for now), I honestly believed that the AC would play it safe and stir away for the Customary Law route. I was wrong. As noted by Dapo Akande, this radical view justifies even more that the AU move for an ICJ advisory opinion on the matter. They have nothing to lose now.

From the perspective of the ICC, the Appeals Chamber has sadly confirmed I was right when I chose “the frog that wanted to be an ox” title, for my book chapter on immunities. This is again a case of the ICC Judges trying to be more (and to make the Court be more) than it actually is. In the fable, the frog actually exploded at the end… it’s of course just a metaphor, but given recent developments at the Court, it’s increasingly becoming a concrete risk for the institution.

 

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Posted in African Union, ICC, immunities, Security Council, UNSC

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Why a Syria UNSC Referral to the ICC is not necessarily a good idea (and why we should be allowed to say that)

Posted on May 22, 2014 | 3 comments

I’ve so far stayed away from the online discussions on the draft resolution for a UN Security Council Referral of the Syria situation. My impression was that any comment on the content of the draft was essentially science fiction, as there is little chance that the Resolution will pass, given that Russia is likely to veto it.

(on the substance, briefly, 1) I don’t share Kevin Jon Heller’s criticism of the UNSC not wanting to finance their referrals. The drafters of the Rome Statute wanted UNSC referrals, I think it was a bad idea, and possibly one that is contrary to international law, but they got it and cannot now complain, in my opinion and 2) in relation to possible limitations to the personal jurisdiction of the Court in the Resolution, I already expressed here, in relation to Libya, my thoughts that such limitation does not render the referral illegal, it merely raises a question of opposability in case someone falling within it were to be prosecuted)

However, given the last few days of online frenzy on the promotion of the referral in preparation for tomorrow’s vote, it is difficult to resist any longer. As summarized here, nearly 60 countries seem to support the referral as well as a high number of NGOs, who consider that a referral is the best way to bring justice to victims of the Syrian civil war. This is creating considerable peer pressure and States who do not publicly support this effort are considered to be necessarily “wrong”:

I am however not convinced by this quasi-unanimous call for the ICC to intervene in Syria, and this for several reasons.

1) From the perspective of the ICC

I don’t really see why the ICC would want to get involved in that situation. While a referral might be publicly welcomed by Court officials, I can only imagine the anxiety attacks that people at the institution, especially at the OTP, must be going through at the mere thought of the referral being approved. Investigating crimes in a serious manner in Syria right now would be a logistical nightmare, that probably would make Darfur look like a walk in the park.

Putting logistics aside, I’ve heard people say that this would be an opportunity for the ICC to get out of Africa. But I don’t see how this would be a good place to start, given the complex geopolitical considerations at play in the region. I think that dragging the ICC into this seriously polarized political conflict would ultimately (rightly or wrongly, but that is not the point) affect its credibility. I recently told a diplomat I met in the Hague that if his country really supports the ICC, it should oppose a referral of the Syria. I hope he did…

2) From a broader perspective: the ICC and conflict resolution

More generally, I naively remain amazed at how the ICC has now automatically become part of all conversations on any conflict situation. It is too big a discussion to go into here in too much detail, but the ICC has been integrated in all kinds of debates about transitional justice, jus post bellum and RP2. However, the link between international prosecutions and political transitions remains to be convincingly established in my opinion. Or at the very least, someone should justify on more solid ground than “we need to bring justice to victims” why such prosecutions can and should have such a central role in conflict and post-conflict situations.

This is particularly true in a case of ongoing crisis as in Syria. I don’t honestly see how a referral to the ICC will make any difference to the humanitarian crisis that has been unfolding for the past years. It looks like a veil for the inactivity of the international community in not doing anything to put an end to the atrocities. When someone is being beaten up in the street, you don’t send a judge, you send a policeman.

In relation to this,  supporters of the referral mention a possible deterrent effect. But this argument is always very shaky. Even if one buys the idea (disputed by many) that criminal law in general can have a deterrent effect, this will only be the case in a pacified society when criminal activity is the exception rather than the norm. This is hardly transposable to a conflict situation, where there is hardly any social contract remaining in which a pacified and socially accepted application of criminal law might have a deterrent effect.

In addition to that, I don’t see the evidence of such an effect to date. I must have missed the memo that shows that eastern Congo, the Central African Republic, Darfur or Uganda are now havens of peace thanks to ICC intervention…

This is not to say that accountability issues should not be part of the discussion at all. There is no denying that impunity no longer seems to be a credible policy option in any political transition. But there is a important chronological dimension that cannot be ignored. There is a right timing for implementing the different components of a transition, and, to make things more complicated, that timing is never the same in each case. But we do need to accept that not everything can be done immediately in dealing with a situation such as Syria. My feeling is that the most irrelevant action to take right now is a referral to the ICC. Other actions (military and/or diplomatic) would seem to be obvious priorities here. And I suspect that these considerations, rather than some vicious moral failure, lies at the heart of why virtuous states such as Sweden or Canada are not supporting the referral at this point in time.

Mark Kersten is, as usual, more careful and measured than I am in discussing this issue here, noting that we don’t know enough on the possible positive or negative effects of ICC intervention in various situations. This might be true to some extent, but I do think that the burden lies on those supporting the ICC to show that it does indeed have the promised positive effect.

In that respect, what ultimately continues to bother me is that supporters of the ICC have, in my opinion, oversold what this Court can do. As a result, the first thing you see in the press when some unrest occurs somewhere is a call for the ICC to intervene (see recently in Ukraine). This leads, in my view, to a dumbing down of discussions of complex situations, which need to be broken down into digestible “good vs bad” and “victim vs perpetrator” categories which simply do not reflect the reality of what is going on, nor help make policy choices and as a consequence prepare a manageable political transition. Indeed, not everything can be seen through the lens of international criminality when dealing with a political situation. If not, because both sides to a conflict are likely to commit crimes, does it mean that one supports no one? It’s like saying that because both sides in the second world war committed war crimes, that we cannot choose sides between them. Of course we can.

Some years ago, when the Ivory Coast post-electoral violence was unfolding, I asked the question of how to distribute responsibility among a myriad of possible entities. Ultimately, it raises the following question: if all those who committed crimes in civil wars are put in jail, who will be in charge of the transition? It might seem like a simplistic question, but I still have not received an adequate answer…

 

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Posted in ICC, libya, Security Council, syria, Uncategorized, United nations, UNSC

A short Comment on Libya, Hypocrisy and Selective Outrage

Posted on March 2, 2011 | 2 comments

I am usually not a big fan of “double-standard” discussions, which are usually the source of endless “why here and not there” debates, which are often ultimately excuses either for inaction or for diminishing the importance of a specific action. But I must admit the current situation (pun intended, see previous post) in Libya does lend itself pretty well to this type of analysis.

For one, the referral by the UN Security Council (extensively discussed from a legal perspective here), begs the question of when a situation rises to the point of justifying a referral. William Schabas raised this point in his own comments:

But if the Security Council will move in this way given reports of devastating attacks on civilians, why did it not move in the same way the last time there were such attacks in the same region? I’m referring to Gaza and operation Cast Lead which took place only two years ago, and only hundreds of kilometres away from where Gaddafi is currently massacring his own people.

 Although I do not share the typical demagogic singling out of Israel (to stay in line with this post, why mention that situation, rather than an other?), it is a valid question generally. There are a number of situations since the entry into force of the Rome Statute which might have warranted referrals, not just Gaza, but also Ivory Coast, or Sri Lanka, for example. Usually the answer to this is that whoever asks the question is being naive and that it’s a question of politics. Maybe. But it doesn’t mean that the question shouldn’t be asked. In relation to this, and linked to the debate I was having in the comments section of my previous post, I believe that given the extensive power given to the Security Council under Chapter VII, 1) that chapter should be redrafted to provide for clearer safeguards and guidelines on its use, and 2) the UNSC should be reformed to avoid its overtly political use by the veto-wielding powers. I know that is being naive too, but there is no harm in being a dreamer once in a while…

Second of all, the UN General Assembly has voted to suspend Libya from the Human Rights Council. Of course, one can wonder with the International law Prof Blog, why it got elected there in the first place. And it becomes even more laughable when you actually read the composition of the Council. It is presided by Thailand, with its spotless human rights record. Cuba, a paragon of democracy, provides a vice-president, so does Slovakia, a country which has not be singled out by UN Bodies and the Council of Europe for practicing forced sterilization on Roma women. Other members include such such human rights safe-havens as Russia, Saudi Arabia, China and Pakistan. Past members included Algeria, Egypt, Tunisia and Sri Lanka. The members of the defunct Commission on Human Rights all had equally good track records in terms of Human Rights. So the singling out of Libya for a suspension makes perfect sense.

I am not saying that identifying this hypocrisy would justify in any way not reacting to what is happening in Libya. in simple terms, it’s not unfair to get caught, just because others haven’t. But one must take a step back and reflect on the reasons why a cause gets a spotlight at a given moment, and others do not. Actors on the international scene “choose” a topic and it suddenly enters the zeitgeist. There is a complex sociological web of political actors, NGOs, media outlets which frame priorities and frame minds to look in a certain direction and not another, as the over-emphasis on Darfur and its “genocide debate” or on Israel and anything it does, shows. Not to sound cynical or anything, but some causes sell when others don’t. And this applies to NGOs as well, which, in the darker corners of the castles where they put away their shining armors when the night comes, discuss humanitarian markets and compete for them for donations and exposure, in order to sell their own causes as others would sell used cars. But that is maybe a little too cynical, and I’m, once again, straying off topic.

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Posted in Human Rights Council, libya, Security Council

Libya and the ICC: On the Legality of any Security Council Referral to the ICC

Posted on February 28, 2011 | 10 comments

The UN Security Council resolution on Libya has received a lot of exposure in the past few days. Most notable international law blogs have commented upon it. I more strongly recommend Xavier Rauscher’s posts over at the International Jurist (here and here), Kevin John Heller’s insights over at Opinio Juris, Marko Milanovic’s take at EJIL Talk! and William Schabas’ thoughts. Given this amount of analysis, I thought I would avoid blogging just to repeat what everyone had said.

but there is one issue that has not been discussed and that is the legality of the referral mechanism as a whole.

As the readers of this blog might know, I remain convinced that the power given to the Security Council, by a treaty other than the UN Charter to effectively make that treaty binding on a non-State party is contrary to international law. I discussed this issue before in relation to the Darfur referral (here and here). You could tell me that I should let bygones be bygones, that the system exists and that I should just live with it. But, I realized I couldn’t do so when reading the debate over at Opinio Juris on the “legality” of the following paragraph of the Resolution:

6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.

The debate turned around the question of whether this limitation was “lawful” or of “dubious legality” and “ultra vires”. And then I asked myself a very simple question? “ultra vires” and “unlawful” in relation to what law or power? It cannot be the ICC Statute, because the UN Security Council is not bound by the ICC Statute, it is only bound by its constitutive treaty, i.e. the UN Charter. And it cannot be the UN Charter, because there is famously no boundaries to the use of Chapter VII. So the UN Security Council can say what it wants and the whole debate actually shows the legal absurdity of the whole UNSC referral system.

Which brings me back to my initial point, the legality under international law of the mechanism as a whole. I cannot see in what reading of the general rules of the international law, the Security Council can be empowered to make a treaty binding on a State without its consent. Even more so if this power does not arise from the UN Charter itself.

If I do play along with the existing system for one minute, I still don’t see the problem with paragraph 6 from the ICC’s perspective. Kevin John Heller put forward a hypothetical scenario in this respect:

 What would happen in the following, obviously fanciful, scenario?  Gaddafi is toppled and turned over to the ICC, which initiates a prosecution against him. The SC authorizes a peacekeeping mission in Libya, and during the mission a US peacekeeper commits a war crime.  The ICC prosecutes him, concluding that paragraph 6 has no legal force. If the paragraph is not severable and the referral is void, what happens to the prosecution of Gaddafi?

But there are no formal requirements for the content of a referral in the Statute other than the fact that it must be done under Chapter VII. More generally, referrals, whether from States or the UNSC, are not “binding” and don’t have “legal force”. They can say what they want, and therefore no issues of “legality” actually arise. As long as a “situation” is referred, as defined by the Statute, it only triggers the Prosecutor to move along, and ultimately, his prosecutorial discretion will prevail and any case that arise will be evaluated within the ICC framework based on its jurisdictional criteria. The Prosecutor has said so much in his policy paper on preliminary examinations, where he points out, for example, that he is not bound by a list of possible indictees that a UN report or a truth commission will have set up, or limited to prosecuting one side of a conflict (although this is factually what he has done in Uganda, but that is a different issue). Bottom line, the ICC is not bound by any frivolous extra bits in a referral. Once a State or the UN Security Council has referred a situation, limiting prosecution to blonds with green glasses, or blue men from Mars is not unlawful. It’s just irrelevant.
To those who would argue that SC referrals are different that other referrals because they concern non-State parties to the ICC, I would answer that is exactly why you should have refrained from putting it in the Statute in the first place. Once it is in there, the same rules apply in my opinion.

UPDATE: I’ve continued debating this in the comments section of Opinio Juris, which compels me to make Three extra points here. 1) There is no statutory definition of a “situation” and the case law is quite vague on this issue, so I’m surprised at the over-reliance on this term in the analysis, when the term itself is so empty. 2) more generally, I insist that this is not an issue of legality, in the absence of any “legal nature” of the referral and conditions of its “legality”. Referrals are essentially political triggers that don’t need to conform to any legal guidelines and previous practice shows that. The Uganda referral mentioned a vaguely defined region (‘northen Uganda’) and limited the crimes to those committed by the LRA. 3) linked to the previous one, there are other ways of dealing with the issue that the “legality/illegality” approach. To take Kevin’s above quoted hypothetical, a Libyan defendant who would contest the referral would just receive the answer that he fits within the limits of the referral. It is only if a UN peacekeeper from the US (for example) is prosecuted that he might claim the protection of the resolution, with the Court considering that the paragraph is either “operable”n or “inoperable”.

In conclusion, save for contesting the mechanism as a whole, I think that there is nothing wrong with the SC referral as it stands.

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Posted in ICC, libya, referrals, Security Council

Scoop: The ICC informs the Security Council of Sudan’s lack of Cooperation

Posted on May 27, 2010 | Leave a comment

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…

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Posted in ICC, Security Council, soudan