The ICC Judicial Finding on Non-cooperation Against the DRC and No Immunity for Al-Bashir Based on UNSC Resolution 1593

Abstract

This article assesses, as unconvincing, the various criticisms raised by Pre-Trial Chamber II (PTC II) in its judicial finding on non-compliance by the Democratic Republic of Congo (DRC), after the International Criminal Court (ICC) state party failed to arrest and surrender the President of Sudan during a visit in the country in 2014. This Chamber has been reproached for the nonchalance with which it has abandoned the custom-based approach followed by Pre-Trial Chamber I in its previous Malawi and Chad decisions and for the consequent continuing uncertainty it has raised about the correct interpretation of Article 98(1) in relation to Article 27(2), customary international law and Security Council (SC) Resolution 1593. The article argues that the conclusion reached by PTC II that no impediment exists at the horizontal level between DRC and Sudan in respect of the execution of the 2009 and 2010 Court requests to arrest and surrender Al-Bashir, is correct. It contends that the Court cannot be blamed for having decided finally to turn to the most convincing approach to the issue of immunity of officials of states not parties to the Statute. Far from having resorted to an ‘implausible’ reading of Resolution 1593, the Chamber’s conclusion that Sudan should be treated similarly to a party to the ICC Statute, not by virtue of its consent, but by the compulsory nature of SC power under Chapter VII of the United Nations Charter, is supported by the general interpretative principles applicable to SC resolutions and by the collective intent of the SC to demand justice from the International Criminal Court. The Chamber’s request for the arrest and surrender of Al-Bashir, therefore, is not an ultra vires act. Furthermore, the link established by the Court between Article 97 and 98(1) of the Statute has the merit of shifting the pendulum towards a cooperation regime more vertical than that which is normally considered. The article concludes that the time has come for the Court to abandon its excessively prudent attitude towards refusals of states parties to comply with its requests and to draw support from all available legal sources to strengthen its requests of cooperation (including the Genocide Convention).