The founding treaty of the International Criminal Court, the Rome Statute, is an international treaty that envisions a cooperation regime based on consent. Due to lack of its own enforcement powers, the ICC relies on effective state cooperation for its activities such as gathering evidence, hearing witnesses, protecting witnesses, and arresting and surrendering individuals to the Court. Therefore the cooperation regime is considered the most crucial component of the Court. States which are parties to the Rome Statute are obligated to cooperate under Article 86 of the Statute. Non-party states, however, are not under such an obligation. Nevertheless, the Rome Statute grants certain powers to the UN Security Council. With this power the UN Security Council may refer a situation to the Court. This referral allows the Court to act in relation to crimes committed in the territory of non-party states. For example, investigations into crimes committed in Sudan and Libya, both non-party states, were initiated through UN Security Council Resolutions 1593 (2005) and 1970 (2011). The cooperation obligations of these non-party states stem from the UN Charter, not the Rome Statute. However, the Court has struggled to secure effective cooperation from both party and non-party states and has issued decisions under Article 87(7) of the Statute regarding violations of cooperation obligations. The Court has referred these violations to the Assembly of States Parties and the UN Security Council requesting necessary measures to be taken to ensure cooperation with the Court. Nonetheless, the measures taken by these bodies have not secured cooperation with the Court. In this context, the first part of this study will outline the legal framework of the cooperation regime envisaged by the Court. In the second part of the study, the voluntary cooperation regime will be analysed in light of the ICC’s decisions on Sudan, Libya and Kenya. The final section of the study will critically examine the impact of the measures taken by the Assembly of States Parties and the UN Security Council on the functioning of the Court.
international criminal court cooperation un security council un charter sanctions
The International Criminal Court (ICC) was established on 1 July 2002. The ICC aims to strengthen international cooperation and ensure that serious crimes do not go unpunished. It is an independent judicial body that has the authority to prosecute only individuals. The ICC is also a treaty-based institution that heavily relies on state cooperation. The key consequence of the Rome Statute being a treaty is that it only imposes rights and obligations on states that are parties to it. One of the most significant obligations imposed on the state parties by the Rome Statute is to ensure effective cooperation. Article 86 of the Rome Statute regulates that “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court”. For non-party states, Article 87(5) stipulates that “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”.
The Ninth Part of the Rome Statute contains detailed provisions regarding cooperation for both state parties and non-parties. The ICC does not have its own enforcement power. Due to lack of its own enforcement powers, the ICC relies on effective state cooperation for its activities such as gathering evidence, hearing witnesses, protecting witnesses, and arresting and surrendering individuals to the Court. Yet the Court could not ensure effective state cooperation. The primary reason for this is that the Statute, as a treaty, establishes a voluntary cooperation regime.
The second consequence of the treaty-based voluntary cooperation regime is that states can resort to the exceptions to the cooperation obligations under the Rome Statute. According to these exceptions, states may avoid cooperation by referring to reasons accepted under the Rome Statute. Therefore, a requested State may request consultation, alteration, or delay of the requested cooperation due to national security concerns (article 72), interests of third parties (article 93), conflicting extradition requests from a non-State Party, or competing cooperation requests, among other reasons (article 90). Another important regulation regarding cooperation is article 98 which states that the ICC may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international law. These restrictions and exceptions do not exist in the practices of ad hoc tribunals, as the general cooperation obligation specified in their Statutes is binding on all member states under Chapter VII of the UN Charter.
Another significant consequence of the Rome Statute being an international treaty is the uncertainty and weakness of the sanction mechanism. Article 122(2)(f) of the Statute grants the Assembly of States Parties (ASP) the authority to assess issues arising from states’ refusal to cooperate with the ICC. The most significant sanction in this context is the diplomatic pressure exerted by the ASP. If the situation is referred to the ICC by the UN Security Council under Article 13(b), the Security Council takes necessary measures to force the state to cooperate with the Court. As will be detailed below, decisions taken by both the ASP and the UN Security Council have not had significant effects on states. For instance, despite the ICC reporting the non-cooperation of Libya and Sudan to the UN Security Council, no sanctions have been imposed by the Council. Similarly, ASP decisions have not gone beyond diplomatic pressure and have not created an effective cooperation mechanism.
The voluntary cooperation regime, which is the result of the Rome Statute’s effort to balance state sovereignty and the interests of the international community, causes many problems in the functioning of the ICC. In this context, the first part of this study will outline the legal framework of the cooperation regime envisaged by the Court. In the second part of the study, the voluntary cooperation regime will be analyzed in light of the ICC’s decisions on Sudan, Libya and Kenya. The final section of the study will critically examine the impact of the measures taken by the Assembly of States Parties and the UN Security Council on the functioning of the Court.
