Saturday, 28 August 2010

What Authority does the Court Have to Inform the Security Council? And Why Bother?

Yesterday, Pre-Trial Chamber I of the International Criminal Court issued a decision by which it:
INFORMS the Security Council of the United Nations and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir's presence on the territory of the Republic Kenya, in order for them to take any measure they may deem appropriate;
Actually, the reasons for the decision only speak about ‘the expected attendance of Omar Al-Bashir at the celebration scheduled for Friday 27 August’ in Kenya. The Chamber says its finding is based upon public information, and it provides a couple of internet websites as authority.
I don’t understand why they bother with such ‘decisions’. It is true that Bashir actually did go to Kenya, but when the decision was issued this had not yet taken place. When the decision was issued, Kenya was under no particular obligation, and it cannot be said that it had at that time failed to honour its obligations under the Rome Statute.
For the record, article 87(7) states:
7.  Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.
There is no authority under the Statute for the Pre-Trial Chamber to ‘inform’ the Security Council or the Assembly of States Parties about developments of which it has learned on the internet. Anyway, don’t the members of the Security Council read the newspapers and surf the internet too?


Douglas Dunbar said...

Dear Mr. Schabas,

In the blog post you clearly answered the second question from the title – the PTC should not inform the Security Council because the Security Council can read about it in the news media – but you never finish addressing the first question.

The basis of the PTC’s decision being article 87(7) is rejected by you and, as well, does not seem to be the source from which the PTC based their authority.{1} If neither you nor the PTC believes it was article 87(7), then what are some argued sources of the power to issue the decisions that were released? Could you see an inherent power of the Court argument, or is there some provision in the subsidiary texts of the Rome Statute that we’re missing?

In my opinion, I believe that in the decision the Court was implicitly claiming an inherent power to inform the Security Council and the ASP (and likely states and international organisations) of the whereabouts of an individual subject to an ICC warrant of arrest. This would be a natural extension of the related power claimed by the ICC in decision No.: ICC-02/05-01/07; a case which refers back to an earlier ICTY claim of the same related power in paragraph 33 of the Blaskic case (IT-95-14) appeal judgment of 29 October 1997. In other words, the ICC is attempting to ensure that its basic judicial function may be fully discharged by reporting the whereabouts of an individual subject to an arrest warrant to those who might have the power to apprehend the individual (a power that the Court lacks).

Beyond the merits of the use of this power, do you believe that this would constitute an adequate legal authority?



{1} Briefly, the PTC used an undifferentiated article 87 as forming a basis of the obligation of Kenya to arrest. For the basis of its present decision, however, the closest the PTC comes is to state that it “[considers] it appropriate.”

jeiran said...

Il me semble que cet argument n’est pas correct, car selon le texte de la décision de la Cour, cette décision était basée sur l'obligation du Kenya en vertu de la résolution 1593 (2005) du Conseil de sécurité . Selon cette résolution, le Conseil de sécurité demanda, instamment, à tous les États et à toutes les organisations régionales et internationales concernés de coopérer pleinement avec la CPI . On peut déduire que le fait d’invitation de M. Béchir en tant que président soudanais tandis qu’il est poursuivi par la CPI, peut-être considéré comme une violation de ses obligations selon la résolution 1593.