08 Mar Article 87(5) of the Rome Statute — Bizarre and Possibly Counterproductive
In a recent post, I noted my puzzlement at Russia’s recent announcement that it will not cooperate with the ICC’s investigation in Georgia. Noting that “Russia has very little to fear” from the investigation, I asked why it would not “milk a little goodwill by at least pretending to cooperate with the ICC” — especially as Russia could simply stop cooperating with the ICC if the OTP ever found evidence that incriminated it.
My post elicited the following response from Patricia Jimenez Kwast on her personal blog:
This might be true in political terms. However, the legal picture is more complicated than this. Once Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and might lead to steps under Article 87(5)(b) of the Statute. As a permanent member of the Security Council, Russia would probably block any meaningful Security Council engagement under 87(5)(b), but the point is that ‘pretending to cooperate’ or stopping cooperation after agreeing to cooperate does carry legal consequences. It is not a decision that should be taken lightly.
(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.
I am much less sure than Kwast that Art. 87(5) would apply if Russia cooperated with the ICC and then stopped cooperating. The article seems to contemplate some kind of formal relationship between the Court and a non-party State — an “arrangement” or an “agreement” or something similar (ejusdem generis). After all, Art. 87(5)(b) addresses non-cooperation when a State “enters into” such an arrangement or agreement with the Court, language that we would normally associate with the law of contract. So I think the best reading of Art. 87(5) is that it applies only when a non-party State makes a formal commitment to cooperate with the Court and then breaks that commitment. I don’t think it applies any time a non-party State voluntarily provides the Court with information and then decides to stop providing it. After all, if Art. 87(5) does apply in such situations, it is profoundly counterproductive. Why would any non-party State ever voluntarily cooperate with the Court if doing so means that it cannot stop cooperating? I think the drafters of the Rome Statute were smart enough not to provide non-party States with such a powerful incentive to avoid the Court like the plague.
In any case, I doubt Russia is trembling in its boots at the thought of a non-cooperation finding. The Security Council did not refer the situation in Georgia, so the most the Court can do is complain about Russian non-cooperation to the Assembly of States Parties. And the Assembly of States Parties has no authority over Russia — because it’s a non-party State…
I’m more than a little baffled by Art. 87(5). Comments from readers would be most appreciated.