Article 87(5) of the Rome Statute – It’s Complicated…But Not Bizarre

by Patricia Jimenez Kwast

[Patricia Jimenez Kwast is completing her doctoral research on wrongful non-cooperation in international law at the University of Oxford, where she also co-convenes the Oxford Public International Law Discussion Group.]

In a recent post on Russia’s announcement that it will not cooperate with the ICC’s investigation into the Georgia situation, Kevin Jon Heller noted his puzzlement as to why Russia did not simply “milk a little goodwill by at least pretending to cooperate with the ICC” and simply “stop cooperating” if incriminating evidence was found. In response, I suggested that “[o]nce 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.” I commented that “pretending to cooperate or stopping cooperation after agreeing to cooperate does carry legal consequences.”

Article 87(5)(b) of the Rome Statute provides:

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 should admit that I posted my comment without giving the precise implications of Article 87(5)(b) much thought at this point (I planned to consider them in a later journal article). I simply recalled Article 87(5) from writing an earlier post on a non-cooperation finding against Sudan. Like Sudan, Russia is a non-party, but the situation in Darfur was referred to the ICC by the SC whereas the Georgia situation is not. So the SC option in 87(5)(b) is irrelevant to questions of Russian non-cooperation. As Heller points out, “the most the Court can do is complain about Russian non-cooperation to the Assembly of States Parties.”

But what about my suggestion that Russia can face other steps under Article 87(5)(b) for its non-cooperation if it fails to cooperate after agreeing to do so? In the follow-up post Article 87(5) of the Rome Statute – Bizarre and Possibly Counterproductive, Heller comments:

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.

My first impulse is to agree entirely with the suggestion that Article 87(5)(b) should be read to apply “only when a non-party-State makes a formal commitment to cooperate with the Court and then breaks that commitment.” A formal commitment was the scenario of initial Russian cooperation that I had in mind, at least in so far as the phrase “or any other appropriate basis” – i.e. other than agreements and ad hoc arrangements – of 87(5)(a) is omitted from 87(5)(b).

However, if Heller takes “formal commitment” to mean a narrower (strictly legally binding) category than “an ad hoc arrangement or agreement with the Court”, I would have to disagree with his interpretation of 87(5)(b). There is an “infinite variety” (to use Baxter’s famous characterisation) of agreements and a wide “range of arrangements” (thanks to Antonios Tzanakopoulos for this entertaining expression) with commitments that lack a formal legally binding status. Whether they are binding will obviously determine questions of responsibility and other possible consequences arising from the failure to cooperate, but this is a separate matter. It does not, in my mind, justify reading a formality-condition into the text of 87(5)(b).

The phrase “enters into” used in 87(5)(b) does not change my view on this. States can just as easily enter into informal arrangements or agreements as formal ones (see e.g. Articles 74(3) and 83(3) UNCLOS, by which States are to “enter into provisional arrangements of a practical nature”).

Would the interpretation I suggest make 87(5)(b) “bizarre or possibly counterproductive”? Let’s deal with bizarre first. I would be hard pressed to see how a provision that merely allows the Court to “inform” the Assembly of States Parties (ASP) or the SC of a breach of a commitment can be bizarre. Commitments are to be kept, and commitments to cooperate no less than others. Of course there is little that the ASP can do against a non-party once it has been “informed” of that State’s non-cooperation. But this would not be bizarre: inconsequential consequences are (unfortunately) a common occurrence in response to breaches of certain commitments in international law.

The weakness of the sanction of 87(5)(b) would also indicate that it can hardly be counterproductive, let alone provide non-Parties with “a powerful incentive to avoid the Court like the plague.” The result of the ASP being informed of non-cooperation would at most be a minor inconvenience (more like the common cold than the plague). And if the situation would be SC-referred, the non-cooperating non-party State would most almost certainly breach the SC resolution in question (cf. the obligation to cooperate imposed on Sudan in OP2 of Resolution 1593). In those cases, as I noted the previous post on Sudan, the Court has held the full “cooperation framework” of the Statute to apply, and has proceeded to make findings and referrals to the SC under 87(7) rather than 87(5).

This observation does bring me to a final question (which I will leave unanswered for now). In my initial comment, I suggested that non-party States could “face decisions of non-cooperation”. On second thought, I am not sure about this. The reason for my doubt is that 87(7) specifically provides that “the Court may make a finding”, whereas 87(5)(b) does not. This distinction could be taken to suggest that the Court would not have jurisdiction to issue a non-cooperation decision in the situation under 87(5)(b). On the other hand, however, it could be argued that if the Court were to inform the SC or ASP of any non-cooperation under 87(5), it would need to have determined or concluded that the State is failing to cooperate in breach of the agreement or arrangement to cooperate. How would it make such a determination without making some kind of finding to that effect? The Regulations of the Court fail to directly answer this question. Regulation 107 (on arrangements and agreements on cooperation with non-party States) is silent on this, while Regulation 109 (failure to comply with a request for cooperation) only covers findings under 87(7) of the Statute addressed to States Parties.

I would be grateful for any comments from the readers on this and would like to thank Kevin Jon Heller in particular for having encouraged me to have a second look at the possible implications of 87(5)(b).

 

http://opiniojuris.org/2016/03/16/article-875-of-the-rome-statute-its-complicatedbut-not-bizarre/

13 Responses

  1. Thanks for the post, It seems that the respectable author of the post (like Heller in his post) has ignored substantial issue:

    1.Not only , that contract can be made by conduct , and not only formal means , but , the mere fact , that in this case , the conduct , did suggest clearly that :

    2.The Russian , holds actually , substantial materials , has to do with the investigation of the Georgian war ( of course , let alone , while had been implicated in the war , and directly ) , now :

    3. This is a hell of peace of consideration . then , It wouldn’t matter that much , whether an agreement or arrangement , been formed at first place here , since :

    4. The court , has universal jurisdiction !! As such , it has the legal ground , to claim and request cooperation of such , notwithstanding article 85 ( b ) to the statue , and circumstances surrounding it .

    5. Why universal ? complicated , but it is enough to be based upon UN referral doctrine ( state not party implicated , and state not party obliged to cooperate ) .

    6. Suppose that Un referral would be executed . The status of the investigation , would be then : Preliminary one , yet , in our case , we deal with already : full one !! As such :

    7. Non compliance , breach of agreement , is a matter to the SC , notwithstanding the Rome statute , or being state party or not .

    8. Of course , the Russians have the Veto right , in this case then , apparently they would exercise it , but not in other cases in the future .

    Thanks

  2. Hi Patricia,
    Could perhaps Art 35 VCLT be read as providing for a ‘formality-condition’?

  3. Thanks for your points El Roam.

    4: The Rome Statute provisions by which the Court can ‘request’ cooperation apply to States Parties, not to non-party States (unless the situation is referred to the Court by the SC). Of course the Court is free to ‘invite’ rather than ‘request’ Russia to cooperate under Art 87(5), but Russia is also free to decline.

    5: I’m not sure what you mean by “UN referral doctrine” but I do think there are some interesting questions regarding other possible grounds for an obligation to cooperate with the ICC (in addition to SC resolutions). I won’t go into those here (I will in a forthcoming publication), but they could perhaps impose other obligations to cooperate on non-parties.

    Points 7-8: Yes in theory the SC could consider any non-cooperation that would fall within the scope of its mandate, and in practice the Russian veto would make this a non-option here.

  4. Hi Sotirios, many thanks for your question – very interesting point.

    I can see how Art 35 VCLT seems relevant. But I don’t think it supports the reading of any formality condition into Art 87(5) in so far as 87(5) itself does not establish any obligation for third States. Art 87(5) merely foresees the possibility that third States may commit themselves to cooperate, and then indicates for some of these commitments that the Court may inform certain bodies of any subsequent failures to cooperate. I see no third State obligation imposed by this. Of course the commitments envisaged in Art 87(5) can provide for cooperation obligations, but it would be those agreements or arrangements that provide those obligations rather than 87(5) itself. My reading would therefore be that since Art 87(5) does not purport to establish any obligation for third States, Art 35 VCLT – incl. the requirement to accept “in writing” – does not apply.

  5. Patricia ,

    Thanks for your comment . You have answered in fact , your reservations or wonders , by yourself , Since , what I meant , is enforcing compliance , by referral to SC , instead of the path prescribed in the Rome statute .

    The ” UN doctrine referral ” I was referring to , was simply to illustrate , the idea, that the ICC , has universal jurisdiction ( only triggered by UN referral , yet the referral ,doesn’t constitute it , stands alone !! I know such attitude , is not so common or accepted , yet , it is !! ) .

    Thanks

  6. Thanks El Roam. If you are saying that the Court could refer (i.e. in the sense of referring rather than merely informing) any non-party non-cooperation to the SC regardless of any basis to do so under the Rome Statute, I’d have to disagree. I see a difference between “referral” in Art 87(7) and “inform” in Art 87(5)(b). As far as I’m aware, the only non-party non-compliance “referral” by the Court to the SC would be in situations in which the non-party is obliged to cooperate on the basis of SC resolutions (the example of Sudan I mentioned, in which the Court did so on the basis of 87(7) and the resolution in question).

  7. PJK,

    Further to Sotirios’ point, if 87(5) does not create an obligation to cooperate, on what basis could the Court report non-cooperation? I can’t imagine the drafters including an article in the RS that said, basically, “you can complain to the ASP or the SC if a state ‘violates’ its non-binding, completely voluntary assurance it would cooperate.”

  8. Many thanks KJH for your follow-up question to Sotirios’ point. I think the Court doesn’t need any further basis other than the stipulation in 87(5)(b) that it “may so inform” the ASP or SC if the non-Party has failed to cooperate with requests contrary to “an ad hoc arrangement or agreement”. If the ‘completely voluntary assurance’ you have in mind would not reach the level of such an ad hoc arrangement or agreement, it would presumably fall into the category of “any other appropriate basis” mentioned in 87(5)(a). In those ‘other-basis’ cases, Art 87(5)(b) does not apply and the Court would indeed have no RS basis to report any non-cooperation.

  9. Patricia ,

    With all due respect , I strongly disagree !! The court ( ICC ) can refer , any matter relevant to the SC , everything in accordance with the UN charter , where it is prescribed clearly , here article 1(3 ) :

    ” To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all with-out distinction as to race, sex, language, or re¬ligion; and ”

    And here article 34 :

    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.”

    And who can bring it forward to the SC ?? here :

    ” Article 35
    Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.”

    Now , The ICC , can refer a matter to the SC ( whether directly , or not , and notwithstanding the Rome statute provisions ) for fulfilling , the general purposes of the UN charter , and the SC as such .And here , in the agreement between them both ( ” Negotiated Draft Relationship Agreement between the International Criminal Court and the United Nations” ) states clearly so , I quote :

    ” 3. Whenever the Security Council considers matters related to the activities of the Court, the President of the Court (“the President”) or the Prosecutor of the Court (“the Prosecutor”) may address the Council, at its invitation, in order to give assistance with regard to matters within the jurisdiction of the Court.”

    And more from there :

    ” Article 3
    Obligation of cooperation and coordination
    The United Nations and the Court agree that, with a view to facilitating the effective discharge of their respective responsibilities, they shall cooperate closely, whenever appropriate, with each other and consult each other on matters of mutual interest pursuant to the provisions of the present Agreement and in conformity with the respective provisions of the Charter and the Statute.”

    End of quotations :

    So Patricia , there is no reason why , The court , wouldn’t refer matters of non compliance , of any state , without UN referral , and urge the SC , to act , in accordance with its power as prescribed by Chapter VII to the UN charter .

    One needs : creativity , boldness , and exhaustion of legal means and options simply .

    Finally , one should not forget , that the ICC and Rome statute , are the new CIL , thanks to both : establishment of permanent court , and , no more immunity granted to officials and head of states when it comes to international crimes . As the new CIL ( 123 states ratified , and UN referrals ) every state , as UN member , is obliged to cooperate !!

    Thanks

  10. The agreement between ICC and the UN ,can be reached here :

    https://www.icc-cpi.int/NR/rdonlyres/916FC6A2-7846-4177-A5EA-5AA9B6D1E96C/0/ICCASP3Res1_English.pdf

    Thanks

  11. Building on this point, it is probably worth highlighting that although the Court makes “requests” to States Parties and only “invites” non-parties, Art 87(5)(b) envisages “requests pursuant to” the ad hoc arrangements or agreements. I haven’t seen examples of these, but perhaps the “requests”-wording gives an indication that the content of these arrangements/agreements will in practice tend to be similar to the provisions of Part 9 RS (i.e. more on the formal than informal side of the spectrum).

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