Article 87(5) of the Rome Statute — Bizarre and Possibly Counterproductive

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.

To be perfectly honest, I had never paid any attention to Art. 87(5) until I read Kwast’s post. Here is what it says:

(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.

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Barrie Sander
Barrie Sander

Hi Kevin Thanks for the interesting post as always. Now that an investigation has formally been initiated, I think that Russia’s most strategic policy would be one of selective cooperation. In the ICC OTP’s recently published Draft Policy Paper on Case Selection and Prioritisation, the OTP candidly states that cases will be prioritised based on “operational criteria”, many of which are controlled by States – including cooperation and the potential to secure the arrest and surrender of suspects. With this in mind, I think that Russia has little to fear from Article 87(5) and much to gain by manipulating the operational circumstances of the OTP’s investigation so that only certain types of cases are prioritised within the situation – OTP practices with respect to all the self-referrals to date provide clear examples of how this policy plays out in practice. Unfortunately, absent a drastic change to the way the geopolitics of the international community operates, the ICC looks likely to be confined to cases against individuals belonging to weak States or those lacking protection from the major powers. To the OTP’s credit, it seems to transparently concede as much in its Draft Policy Paper (see paras 46-48 of the Draft… Read more »

El roam
El roam

Well , in the real and legal world , an agreement or contract , can be concluded by conduct , and not only by formal means . It does vary from one domestic law to other , but it is so basically . So , one may argue , that by first cooperating , Russia has concluded an agreement , So , by its conduct simply ( and actually ,by delivering materials to the ICC at the time ) . However , notwithstanding the veto right , the SC , has power and force , far beyond referrals to the ICC . Here I quote from the UN charter ( one example ) : ” Article 34 The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.” So , if a state , is breaching the peace , stability , or even violating human rights , by any action , it may be referred to the SC , and under chapter VII , sanctions can… Read more »

El roam
El roam

Just link to the SC resolution mentioned in my comment above :

http://www.un.org/press/en/2005/sc8353.doc.htm

Thanks

Ron Slye
Ron Slye

Hi Kevin.

Like you I had not paid much attention to Article 87(5) either. I would note, however, that it speaks not only over an agreement but also an ad hoc “arrangement.” This all then depends on how arrangement is defined, but one could certainly imagine that any cooperation with the Court by a non-state party could be viewed as an ad hoc arrangement without the requirement of any formal writing. I do think that Russia probably has little incentive to cooperate anyway — it is hard to imagine what they gain by cooperating, and it is also hard to identify much of any cost that they will suffer by their non-cooperation. Of course other states could increase that cost if they wanted to — there does not appear to be any sign at the moment that they will.

El roam
El roam

Just to demonstrate , the general concept of making a contract , made by conduct , here the Israeli law for example :

” Contracts (General Part) Law, 1973 ”

Article 6 , which bears the title of :

” Acceptance by way of conduct ”

And dictates as follows :

” 6. (a) Acceptance may be by way of an act in implementation of the contract or by some other conduct, if these ways of acceptance are implied in the offer; for the purposes of sections 3(a) and 4(2), the said conduct is treated as notification of acceptance.

(b) A declaration by an offeror, that the absence of any response on the offeree’s part will be deemed acceptance, is of no effect. ”

Thanks

Patryk Labuda

Thanks Kevin. This is very interesting. The closest analogy I can come up with is the MoU the ICC signed with the DRC government in 2003 (confidential). I don’t know if the ICC has done this in other situation countries, but the DRC MoU is a sort of ad hoc agreement that specifies the cooperation obligations of both the ICC and the Congolese government. Of course, Congo is a state party, but my guess is art. 87(5) is about something something similar.

John Heieck

Great post, Kevin. I would only add that the law of treaties is ignorant of the notion of ‘acceptance by substantial performance’. See Vienna Convention on the Law of Treaties (1969), at art. 2(1)(a); Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986), at art. 2(1)(a). State practice qua practice is relevant only to the interpretation of an agreement after the agreement has entered into force. VCLT, at art. 31(3)(b); VCLTIO, at art. 31(3)(b). This is not the case here. Thus, ‘acceptance by substantial performance’ is arguably irrelevant to this analysis. As Ron Slye notes, however, Russia’s cooperation could, in theory, be characterized as an ‘ad hoc arrangement’ between Russia and the ICC, thereby triggering the former’s obligation to cooperate with the latter. However, ‘arrangement’ is not defined by the VCLT, the VCLTIO, or the Rome Statute. Merriam-Webster’s Dictionary defines ‘arrangement’ as ‘the way that things or people are organized for a particular purpose or activity’, ‘something that is done to prepare or plan for something in the future’, and ‘a usually informal agreement’. In other words, ‘arrangement’ is a non-binding ‘agreement’ as far as the law of treaties is concerned. If… Read more »

Patricia Jimenez Kwast

Many thanks for this great post and all the informative comments. My reply should be forthcoming soon in a post entitled ‘Article 87(5) of the Rome Statute – It’s Complicated…But Not Bizarre.’