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

[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).