Abstract:
Cooperation, which is the main theme of the study, is at the centre of the regime of the International Criminal Court (ICC). Without cooperation, which is a key principle of international law, the ICC would essentially be a “giant without arms and legs”. Though not specifically defined, it is understood to be an obligation of means, not of results. Through the ages, states have cooperated for various reasons, although primarily to advance their national interests. The importance of cooperation in international law has even led to some authors suggesting that apart from the law of coexistence, there is a new structure of international law – the law of international cooperation.
Ideally, the relationship between the ICC, the UN Security Council and the African Union should be grounded in the law of international cooperation. However, the relationship between these entities has deteriorated and become strained and is characterised by a lack of cooperation. While much of the spotlight is on the African Union’s non-cooperation stance with the Court, all three entities are, to an extent, responsible for the standoff.
The standoff between the three entities started when the UNSC’s referral resolution placed only the situation states, Sudan and parties to the conflict under mandatory obligation to cooperate with the Court. This action by the UNSC could be seen as an attempt to circumvent the cooperation framework of the Rome Statute. After the referrals, the entity similarly did not assist the Court in gaining cooperation from recalcitrant states. Equally so, when deferral request was submitted, it was not formally considered despite meeting the required provisions. Furthermore, the UNSC attempted to invoke the deferral article for unintended purposes, thereby making the entity an active participant in the triangular conflictual relationship.
In trying to secure cases and cooperation from states, the prosecutor was seen as operating too close to the politicians, which many warned could damage the image of the Court. In cases where the Court was called upon to give an authoritative interpretation of the cooperation framework, it gave conflicting decisions with the result that the cooperation model of the Rome Statute was transformed from an inter-state to a supra-state model of cooperation. As it stands, and notwithstanding the exceptions provided for in the Statute, states parties are under a mandatory obligation to cooperate with the Court in all circumstances. The decisions have given credence to the accusation that in its quest for cooperation, the Court does not necessarily apply the law as provided for in the Statute but rather acts as an instrument to achieve political outcomes.
Despite not being party to the Rome Statute, the AU has decided that all African States Parties must not cooperate with the Court. This decision is unprecedented, as the Statute was not adopted under its auspices and the African State Parties do not have any cooperation obligations to the AU. This decision stems from AU’s dissatisfaction with the UNSC. Unless the three entities find some common ground, it seems the triangular conflictual relationship with cooperation at the centre of the conflict, will persist for the foreseeable future.
