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Non- State Cooperation with ICC

Abstract

The importance of an international criminal court can be assessed by the struggle put by all the nations on the face of earth for its establishment. It started at the end of 2nd World War in the form of Nuremberg and Tokyo tribunals and culminated in the form of ICC today paving its way from the ICTR and ICTY. This experimental stage taught the world the importance of the principles chiefly known as “cooperation” and “complimentarity”. This article briefly discusses both and the obligations the international law entails over the states including “non state parties” to say, those who haven’t ratified the ICC/Rome statute yet (explanation to the term “ratify” may lead us beyond the scope of this article so lets reserve it for further writings). It also opines about the remedies available albeit scarcely against those non abiding states. At the end the conclusion discusses about the progress of ICC so far as a good sign although it would take some time to it to evolve into a panacea for international crimes.

Situation Prior and After the establishment of ICC

Before the International Criminal Court (ICC) came into being, the international attention was focused on its establishment, entry into force etc. After the establishment many questions arose such as the question of its administration and performance. As discussed below co-operation provided to it by states is of the utmost importance, especially of the states not ratified its statute.

Importance of Cooperation

ICC has got no police or judicial functions such as execution of arrest and implementation of punishments or carrying out investigations in a non state party without its assistance. So state cooperation of not only the state parties but also of the non state parties to ICC is of an immense importance for its functioning

General Principles Regarding the Obligations on Non State Parties

The general provisions under  Article 34 and 35 of Vienna Convention on Law of Treaties provide that there are no obligations on third state parties for a treaty they haven’t acceded unless they show the willingness to do so. Even Article 86 and 87 of The Rome Statute also stipulates the same as the state parties are bound to cooperate whereas the non state parties have a discretion and the court has to “invite” them for assistance. Nevertheless there exists a certain source of law which bound a non-state party to co-operate with The ICC.

Compulsion for Non State Parties

Where the case is referred by UNSC acting in accordance with The Chapter VII of UN Charter the state not party to ICC becomes obliged to accept the jurisdiction of the court by virtue of Article 25 of UN Charter.

Exception

Here comes the interesting part  with the principle of ‘‘complementary jurisdiction’’ or “the complimentarity principle” in the Rome Statute, where any state concerned may challenge the jurisdiction of the ICC. If the state opposes the investigation and prosecution by the ICC and can prove that it is actually willing and able to exercise jurisdiction in accordance with that principle, the ICC will have to give up its  jurisdiction.

Customary Obligation for Cooperation  ( Explanation of The Customary International Law is again subjected to a long discussion)

The customary obligation to cooperate for International Humanitarian Law (IHL) has been enshrined in ICJ`s Nicaragua vs USA judgement (Military and Paramilitary Activities in and against Nicaragua 1986) para 220. Moreover, albeit most of the nations are not party to the ICC, yet subsequently almost the whole world has ratified the Geneva Conventions which makes it a customary obligation to “respect” and “ensure respect” for IHL by virtue of Common Article 1 to Geneva Conventions 1949 and Art 1 and 89 of  The Additional Protocol 1 (1977). Obligation to “ensure respect” has also been enshrined  in The Palestinian Wall Case (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) where third states are called to condemn the actions of Israel in occupied Palestine (obligation erga omnes) . Since Art 8 of ICC is concerned with the serious violations of Geneva Conventions (IHL) the customary obligation to “ensure respect” is also on the non state parties. USA and China abstained to vote in UNSC Resolution 1593 (referral to ICC for the situation in Darfur, Sudan) but did not veto the decision thus, setting another example of this practice to be a customary international law.

Differences between ICC and ICTY

There has been a major misconception regarding the similarities of ICC with ICTY. Below are given the differences between the whole framework of the two, rendering the paradigm of ICTY inapplicable in this respect.

  • ICTY was established under UNSC resolutions 808 and 827.
  • ICC was discussed in UN General Assembly and finally accepted and opened for signatures in 1998.
  • It was mandatory for all states to cooperate with ICTY domestically and internationally by virtue of the UNSC’s referral.
  • ICC statute by virtue of Art 88 only bounds state parties to cooperate.
  • ICTY was given “primacy” along with complementarity (Art 9 of ICTY statute, Art 19 of Bosnia and Herzegovina`s Law on Cooperation with ICTY and Art 2 of Germany`s Law on Cooperation).
  • ICC lacks such provision.
  • ICTY had primacy in conducting investigations and consent or local assistance was not necessary along with implementation force (IFOR) to enforce assistance in gathering evidences by virtue of UNSC resolution 1031.
  • ICC according to Art 99 of its statute has to obtain the consent and assistance to carry out investigations.
  • ICTY provides no provisions for refusal to its requests.
  • ICC gives flexibility in processing the requests by a non state and the court at the same time for same person.

Triggers of ICC`s Jurisdiction

Below are the multiple ways to trigger ICC’s jurisdiction.

  • Matters referred by state parties.( Article 13a Rome Statute)
  • the UN Security Council refers a case to the Prosecutor under Chapter VII of the UN Charter. ( Article 13b)
  • the Prosecutor himself or herself initiates an investigation on the basis of relevant material.( Article 13c)
  • Non state party accepts the jurisdiction of the court. (Article 12(2))

Consequences of Non Cooperation (State Parties)

  • Referral to assembly of parties. Art 87 (7)
  • Referral to SC in case of its initiative. Art 87 (7)

Non Cooperation by Non State Parties

  • If the state has assumed the jurisdiction then referral to the Assembly of Parties may be done. (Art 112)
  • In case of UNSC’s referral the matter can be brought up to SC which can impose sanctions as well.(Art 87)

If the state has not assumed the jurisdiction neither has the case been referred by SC then there lies no such provision. However, the Assembly of Parties may be the option to somehow influence the non cooperating state acting under Art 112 (2) of ICC statute

Conclusion

Treaties are binding only on states parties and do not create rights or obligations for non-party states. However, in the light of the general principles of international law, that is, taking into account the authority of the UN Security Council under the UN Charter, the possible referral by the Security Council to the Court and the provisions of Article 1 common to the Geneva Conventions of 1949, co-operation with the ICC is no longer voluntary in nature, but is instead obligatory in the sense of customary international law. Therefore, while a state may not have acceded to the ICC, it still cannot relieve itself from the obligations incumbent upon under customary international law. Though the court is still in the phase of its development yet this much of the progress is in itself a big achievement for the time being.

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Haziq Ali Khan

Author Since:  May 28, 2020