ICC-02/05-01/09-195 09-04-2014 1/18 NM PT

Original: English

No.: ICC-02/05-01/09
Date: 9 April 2014

PRE-TRIAL CHAMBER II

Before:

Judge Ekaterina Trendafilova, Presiding Judge
Judge Hans-Peter Kaul
Judge Cuno Tarfusser

SITUATION IN DARFUR, SUDAN
THE PROSECUTOR V. OMAR HASSAN AHMAD AL BASHIR
Public
Decision on the Cooperation of the Democratic Republic of the Congo Regarding
Omar Al Bashir’s Arrest and Surrender to the Court

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Document to be notified, in accordance with regulation 31 of the Regulations of the Court, to:

The Office of the Prosecutor
Fatou Bensouda, Prosecutor
James Stewart, Deputy Prosecutor

Counsel for the Defence

Legal Representatives of Victims

Legal Representatives of Applicants

Unrepresented Victims

Unrepresented Applicants for
Participation/Reparation

The Office of Public Counsel for
Victims

The Office of Public Counsel for the
Defence

States Representatives
Competent authorities of
the Democratic Republic of the Congo

Amicus Curiae

REGISTRY
Registrar
Herman von Hebel

Deputy Registrar

Victims and Witnesses Unit

Detention Section

Victims Participation and Reparations
Section

Others

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Pre-Trial Chamber II (the “Chamber”) of the International Criminal Court
(the “Court” or the “ICC”) issues this decision on the cooperation of the
Democratic Republic of the Congo regarding the arrest and surrender of Omar
Hassan Ahmad Al Bashir (“Omar Al Bashir”) to the Court.
I. PROCEDURAL HISTORY
1. On 31 March 2005, the Security Council (the “SC” or the “Council) acting
under Chapter VII of the Charter of the United Nations (the “UN”) adopted
Resolution 1593(2005) referring the situation in Darfur, Sudan to the Court.1
2. On 4 March 2009 and 12 July 2010, Pre-Trial Chamber I (“PTC I”) issued two
warrants of arrest against Omar Al Bashir.2 These warrants of arrest remain to be
executed.
3. On 6 March 2009 and 21 July 2010, the Registry, acting upon PTC I’s request,
issued the “Request to all States Parties to the Rome Statute for the arrest and
surrender of Omar Hassan Ahmad Al Bashir”3 as well as the “Supplementary
request to all States Parties to the Rome Statute for the arrest and surrender of
Omar Hassan Ahmad Al Bashir” (the “2009 and 2010 Requests”).4 These requests
called for the cooperation of all States Parties in the arrest and surrender of Omar
Al Bashir, pursuant to, inter alia, articles 89(1) and 91 of the Rome Statute
(the “Statute”).

S/RES/1593 (2005).
Pre-Trial Chamber I, “Warrant of Arrest for Omar Hassan Ahmad Al Bashir”, 4 March 2009,
ICC-02/05-01/09-1; “Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir”, ICC-02/0501/09-95.
3 ICC-02/05-01/09-7.
4 ICC-02/05-01/09-96.
1
2

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4. On 15 March 2012, the Presidency issued the “Decision on the constitution of
Pre-Trial Chambers and on the assignment of the Democratic Republic of the
Congo, Darfur, Sudan and Côte d’Ivoire situations”, in which it reassigned, inter
alia, the situation of Darfur, Sudan to this Chamber.5
5. On 26 February 2014, the Chamber was notified of the “Prosecution’s
Notification of Possible Travel in the Case of The Prosecutor v Omar Al Bashir”
(the “Notification”).6 In the Notification, the Prosecutor contended that, on the
basis of media reports, there was a possibility that Omar Al Bashir would travel
to the Democratic Republic of the Congo (the “DRC”) to attend the “Common
Market for Eastern and Southern Africa (COMESA) summit in Kinshasa”
scheduled to take place on 26 and 27 February 2014.7 Accordingly, the Prosecutor
requested that the Chamber take the necessary steps to: (a) ensure that the
pending warrants of arrest against Omar Al Bashir are executed; (b) enquire
about said visit from the authorities of the DRC; and (c) remind the DRC
authorities of their “standing obligation to arrest persons for whom warrants of
arrest have been issued by the ICC”.8
6. On the same date, the Chamber issued the “Decision Regarding Omar AlBashir’s Visit to the Democratic Republic of the Congo”, in which it, inter alia,
requested the DRC to immediately arrest and surrender Omar Al Bashir to the
Court and ordered the Registry to prepare a report concerning said visit to be
submitted to the Chamber in due course (the “26 February 2014 Decision”).9

Presidency, ICC-02/05-01/09-143.
ICC-02/05-01/09-185 and its annex A.
7 ICC-02/05-01/09-185, paras 1 and 8; ICC-02/05-01/09-185-AnxA.
8 ICC-02/05-01/09-185, para. 10.
9 Pre-Trial Chamber II, ICC-02/05-01/09-186, p. 5.
5
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7. On 3 March 2014, the Chamber was notified of the “Registry’s Report on the
‘Decision Regarding Omar Al-Bashir’s Visit to the Democratic Republic of the
Congo’” (the “Registry’s First Report”).10 According to the Registry’s First
Report, Omar A-Bashir’s visit had taken place and it was confirmed by the DRC
authorities that he had left the country in the morning of 27 February 2014.11
8. On the same date, the Chamber issued the “Decision Requesting Observations
on Omar Al-Bashir’s Visit to the Democratic Republic of the Congo”,12 in which
it, inter alia, invited the competent authorities of the DRC to submit observations
no later than Friday, 14 March 2014 on “(1) the failure to execute the requests for
arrest and surrender of [Omar Al Bashir] to the Court and; (2) the alleged failure
to consult with the Court in case of any problems identified which might have
impeded the execution of the requests for his arrest and surrender during his
visit to the country”.13 The Chamber also ordered the Registry to submit a report
to the Chamber “after having received the Government’s observations […]”.14
9. On 18 March 2014, the Chamber received the “Transmission to Pre-Trial
Chamber II of the observations submitted by the Democratic Republic of the
Congo pursuant to the ‘Decision requesting observations on Omar Al-Bashir’s
visit to the Democratic Republic of Congo’ dated 3 March 2014”,15 together with
two public annexes appended thereto (the “Registry’s Second Report”).16

ICC-02/05-01/09-187 and its confidential annexes.
ICC-02/05-01/09-187, p. 4.
12 Pre-Trial Chamber II, ICC-02/05-01/09-189.
13 Pre-Trial Chamber II, ICC-02/05-01/09-189, p. 6.
14 Pre-Trial Chamber II, ICC-02/05-01/09-189, p. 6.
15 ICC-02/05-01/09-190.
16 ICC-02/05-01/09-190-AnxI; ICC-02/05-01/09-190-AnxII-tENG.
10
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II. APPLICABLE LAW
10. The Chamber notes articles 21(1)(a) and (b), 27, 86, 87(7) 89, 97, 98(1) and
119(1) of the Statute, rule 195(1) of the Rules of Procedure and Evidence
(the “Rules”) and regulation 109(2), (3) and (4) of the Regulations of the Court
(the “Regulations”).
III. DETERMINATION BY THE CHAMBER
11. According to the Registry’s Second Report, the DRC alleges that the nonenforcement of the Court’s pending requests for the arrest and surrender of
Omar Al Bashir was due to time and legal constraints.17
12. In relation to the time constraints, the DRC argues that the composition of the
delegations invited to attend the COMESA summit “was communicated very
late to the DRC State Protocol Service”.18 According to the DRC, the fact that a
foreign Head of State was on Congolese territory placed the DRC in a “complex,
ambiguous and major situation” in light of the fact that the DRC is a State Party
to the Statute and equally a member to the African Union.19 The DRC further
alleges that Omar Al Bashir was invited “by a regional organisation and not by
the [DRC]”.20 Moreover, the shortage of time between the arrival of Omar Al
Bashir in the evening of 25 February 2014, the receipt of the Chamber’s decision
on 26 February 2014, and his early departure in the morning of the following day
made it “materially impossible” to take a decision with such “legal, diplomatic
and security implications”.21 In the view of the DRC, if such move had taken

ICC-02/05-01/09-190-AnxII-tENG.
ICC-02/05-01/09-190-AnxII-tENG, p. 6.
19 ICC-02/05-01/09-190-AnxII-tENG, p. 6.
20 ICC-02/05-01/09-190-AnxII-tENG, p. 6.
21 ICC-02/05-01/09-190-AnxII-tENG, p. 6.
17
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place, it would have had “heavy consequences” on the State.22 Should there had
been no time constraints, the DRC “would have contacted the Court and
presented [these] difficulties upon receipt of the decision of [the Chamber]”, the
government adds.23
13. The Chamber takes note of the above explanations and acknowledges the
difficulties the DRC was facing. However, the Chamber finds the arguments put
forward by the DRC unconvincing for different reasons laid down in the
following paragraphs.
14. The Registry of the ICC, acting upon the instructions of PTC I, issued on
6 March 2009 and 21 July 2010 two cooperation requests for the arrest and
surrender of Omar Al Bashir. Thus, the DRC cannot claim that the 26 February
2014 Decision requesting the DRC to immediately arrest and surrender Omar Al
Bashir to the Court was novel or came as a surprise, and as such, created an
“ambiguous and major situation” to the Congolese authorities. The DRC was put
on notice about the Court’s pending requests for more than four years and the
fact that Omar Al Bashir left only one day after the notification of the 26 February
2014 Decision to the Congolese authorities cannot be an excuse. This is more so
the case as the DRC was duty bound to execute the Court’s pending 2009 and
2010 Requests before receiving the 26 February 2014 Decision and even without
its issuance. The latter was no more than a reiteration and a reminder of the
DRC’s existing obligation to arrest Omar Al Bashir should he enter on the DRC
territory.

22
23

ICC-02/05-01/09-190-AnxII-tENG, p. 6.
ICC-02/05-01/09-190-AnxII-tENG, p. 6.

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15. Moreover, the DRC’s claim that the 26 February 2014 Decision placed the
State “in a delicate and unmanageable situation”24 proves that the Congolese
authorities should have consulted or notified the Court in accordance with article
97 of the Statute and rule 195 of the Rules of the existence of a problem related to
article 98(1) of the Statute which prevented it from discharging its obligations as
a State Party to the Statute prior to or during the visit of Omar Al Bashir and
before his departure. In particular, the DRC should have provided the Court,
pursuant to rule 195(1) of the Rules, with any relevant information to assist the
Chamber in deciding on the problem arising under article 98(1) of the Statute.25
Yet, this was not done and instead of complying with its statutory obligations,
the DRC chose to remain passive, alleging that the visit was short noticed and
that the invitation came from “a regional organisation”.
16. By so doing, the DRC disregarded the fact that the Court is the sole authority
to decide whether or not the immunities generally attached to Omar Al Bashir as
a sitting Head of State were applicable in this particular case. This conclusion
finds support in article 119(1) of the Statute which provides that “[a]ny dispute
concerning the judicial functions of the Court shall be settled by the decision of
the Court”.
17. Further, the Chamber cannot accept the argument that a regional organisation
would carry out certain activities on the territory of a State without the latter’s
prior knowledge and consent. It is even harder to adhere to the DRC’s allegation
that the country’s State Protocol Service was not informed in due course of the

ICC-02/05-01/09-190-AnxII-tENG, p. 6.
Pre-Trial Chamber I, “Corrigendum to the Decision Pursuant to Article 87(7) of the Rome
Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests
Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al
Bashir”, 13 December 2011, ICC-02/05-01/09-139-Corr, para. 11.
24
25

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visit of a sitting Head of State. In conclusion, in the absence of proper and logical
justifications on the part of the DRC, the Chamber cannot accept their
observations alleging time constraints.
18. Turning to the second part of the DRC’s observations, namely the legal
constraints which prevented the Congolese authorities from executing the
Court’s pending requests for arrest and surrender, the DRC acknowledges that it
“was under an international obligation to arrest [Omar Al Bashir]”.26
Nonetheless, the DRC believes that such an international obligation was subject
to the application of article 98(1) of the Statute, which calls for the Court to “first
obtain the cooperation of that third State for the waiver of the immunity”.27
19. According to the DRC, Omar Al Bashir enjoys “certain immunities” as a
result of his position as “Head of State”.28 Although article 27 of the Statute
renders these immunities “ineffective”, the DRC argues that they “remain valid”,
given that Omar Al Bashir is a “Head of a member State of the African Union”,
and that the latter decided in a recent decision passed on 12 October 2013 that
“[…] no serving AU Head of State or Government […], shall be required to
appear before any international court or tribunal during their term of office”. 29 In
light of the decision of the African Union, the Court’s request to arrest and
surrender Omar Al Bashir “became inconsistent with their obligation to respect
the immunities” attached to his position as a Head of State.30
20. In addition, according to the DRC, in view of recent visits of Omar Al Bashir
to a number of States Parties to the ICC Statute, such as Chad, Djibouti, Kenya
ICC-02/05-01/09-190-AnxII-tENG, p. 6.
ICC-02/05-01/09-190-AnxII-tENG, pp. 6-7.
28 ICC-02/05-01/09-190-AnxII-tENG, p. 7.
29 ICC-02/05-01/09-190-AnxII-tENG, p. 7.
30 ICC-02/05-01/09-190-AnxII-tENG, p. 7.
26
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and Nigeria, the Congolese authorities “wondered whether these countries were
guided by the principle of immunity [as] he was a sitting Head of State”.31
21. In this regard, the Chamber wishes to point out that the DRC’s reliance on
recent visits of Omar Al Bashir to some States Parties cannot relieve the State
from its obligations to execute the 2009 and 2010 Requests. Whether or not the
States Parties referred to by the DRC were “guided by the principle of
immunity” is not the main issue. What is at stake is that the DRC, which is a
State Party to the Statute, neither executed the 2009 and 2010 Requests issued by
the Court, nor did it discharge its obligations to consult or notify the Court in
due course as explained above.
22. Even assuming that these States were “guided by the principle of immunity”
re the visits of Omar Al Bashir, the DRC could have still avoided a situation in
which it had to “wonder about the decision it should take”,32 as asserted. If the
DRC, as stated earlier, had consulted or notified the Court of the problem faced
under article 98(1) of the Statute instead of deciding itself on its applicability, a
situation as such would have never arisen. It would have been made clear to the
DRC that nowhere in any decision issued by the Court is there the slightest
ambiguity about the Chambers’ legal position regarding Omar Al Bashir’s arrest
and surrender to the Court, despite the arguments invoked relating to his
immunity under international law. Had the Court found any legal impediment
(procedural or substantive) to the execution of the pending requests for arrest
and surrender of Omar Al Bashir, it would have explicitly ruled to that effect.
But this was not the case and PTC I as well as this Chamber issued a number of
decisions making findings on non-compliance of certain States Parties with their
31
32

ICC-02/05-01/09-190-AnxII-tENG, p. 8.
ICC-02/05-01/09-190-AnxII-tENG, p. 8.

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obligations under the Statute, and referred the relevant States to the Assembly of
States Parties, as well as to the SC.33
23. Turning to the remaining yet related arguments put forward by the DRC
concerning the issue of immunities and competing obligations, the Chamber
recalls article 27 of the Statute which stipulates:
1. This Statute shall apply equally to all persons without any distinction based on official
capacity. In particular, official capacity as a Head of State or Government, a member of a
Government or parliament, an elected representative or a government official shall in no
case exempt a person from criminal responsibility under this Statute, nor shall it, in and
of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person.

24. The Chamber further recalls article 98(1) of the Statute which reads:
1. The Court may not proceed with a request for surrender or assistance which would
require the requested State to act inconsistently with its obligations under international
law with respect to the State or diplomatic immunity of a person or property of a third
State, unless the Court can first obtain the cooperation of that third State for the waiver of
the immunity.

25. At the outset, the Chamber wishes to make clear that it is not disputed that
under international law a sitting Head of State enjoys personal immunities from
Pre-Trial Chamber I, “Decision informing the United Nations Security Council and the
Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the
Republic of Chad”, 27 August 2010, ICC-02/05-01/09-109; id., “Decision informing the United
Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar
Al-Bashir’s recent visit to Djibouti”, 12 May 2011, ICC-02/05-01/09-129; id., “Decision Pursuant to
Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the
Cooperation Requests Issued by the Court with respect to the Arrest and Surrender of Omar
Hassan Ahmad Al-Bashir”, 12 December 2011, ICC-02/05-01/09-139; id., “Decision pursuant to
article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the
cooperation requests issued by the Court with respect to the arrest and surrender of Omar
Hassan Ahmad Al-Bashir”, 13 December 2011, ICC-02/05-01/09-140-tENG; Pre-Trial Chamber II,
“Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued
by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir”, 26 March
2013, ICC-02/05-01/09-151.
33

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criminal jurisdiction and inviolability before national courts of foreign States
even when suspected of having committed one or more of the crimes that fall
within the jurisdiction of the Court. Such personal immunities are ensured under
international law for the purpose of the effective performance of the functions of
sitting Heads of States. This view has also been supported by the International
Court of Justice (the “ICJ”).34 An exception to the personal immunities of Heads
of States is explicitly provided in article 27(2) of the Statute for prosecution
before an international criminal jurisdiction. According to this provision, the
existence of personal immunities under international law which generally attach
to the official capacity of the person “shall not bar the Court from exercising its
jurisdiction over such a person”.
26. Still, the question sub judice is how far reaching this provision is meant to be,
and whether such an exception for lifting personal immunities applies to Heads
of all States, including non-States Parties to the Statute (third States), or whether
it is only confined to those States which have adhered to the Statute. Given that
the Statute is a multilateral treaty governed by the rules set out in the Vienna
Convention on the Law of Treaties,35 the Statute cannot impose obligations on
third States without their consent.36 Thus, the exception to the exercise of the

ICJ, “Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)”, Judgment, 14
February 2002, paras 53-59.
35 Appeals Chamber, “Judgment on Prosecutor’s Application for Extraordinary Review of Pretrial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal”, 13 July 2006, ICC-01/04-168,
para. 33 (noting that the “interpretation of treaties, and the Rome Statute is no exception, is
governed by the Vienna Convention on the Law of Treaties”).
36 UNTS, Vol. 1155, art. 34 [hereinafter “VCLT”]. For the exceptions to the rule, see arts 35 and 38
of the VCLT. See also Pre-Trial Chamber I, “Decision on the request of the Defence of Abdullah
Al-Senussi to make a finding of non-cooperation by the Islamic Republic of Mauritania and refer
the matter to the Security Council”, 28 August 2013, ICC-01/11-01/11-420, para. 12; Pre-Trial
Chamber II, “Decision Regarding Omar Al-Bashir’s Potential Travel to the Federal Republic of
Ethiopia and the Kingdom of Saudi Arabia”, 10 October 2013, ICC-02/05-01/09-164, para. 7; Pre34

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Court’s jurisdiction provided in article 27(2) of the Statute should, in principle, be
confined to those States Parties who have accepted it.
27. It follows that when the exercise of jurisdiction by the Court entails the
prosecution of a Head of State of a non-State Party, the question of personal
immunities might validly arise. The solution provided for in the Statute to
resolve such a conflict is found in article 98(1) of the Statute. This provision
directs the Court to secure the cooperation of the third State for the waiver or
lifting the immunity of its Head of State. This course of action envisaged by
article 98(1) of the Statute aims at preventing the requested State from acting
inconsistently with its international obligations towards the non-State Party with
respect to the immunities attached to the latter’s Head of State.
28. In the case sub judice the DRC claims that by issuing the 26 February 2014
Decision the Court placed the DRC in a situation where it was called upon to act
inconsistently with its international obligations arising from the decision of the
African Union “to respect the immunities that come with [Omar Al Bashir’s]
position of Head of State”.37
29. This position stands to be corrected. The Chamber does not consider that
such inconsistency arises in the present case. This is so because by issuing
Resolution 1593(2005) the SC decided that the “Government of Sudan […] shall
cooperate fully with and provide any necessary assistance to the Court and the
Prosecutor pursuant to this resolution”.38 Since immunities attached to Omar Al

Trial Chamber II, “Decision Regarding Omar Al-Bashir’s Potential Travel to the United States of
America”, 18 September 2013, ICC-02/05-01/09-162, para. 10.
37 ICC-02/05-01/09-190-AnxII-tENG, p. 7.
38 SC Res 1593(2005), para. 2.

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Bashir are a procedural bar39 from prosecution before the Court, the cooperation
envisaged in said resolution was meant to eliminate any impediment to the
proceedings before the Court, including the lifting of immunities. Any other
interpretation would render the SC decision requiring that Sudan “cooperate
fully” and “provide any necessary assistance to the Court” senseless.
Accordingly, the “cooperation of that third State [Sudan] for the waiver of the
immunity”, as required under the last sentence of article 98(1) of the Statute, was
already ensured by the language used in paragraph 2 of SC Resolution
1593(2005). By virtue of said paragraph, the SC implicitly waived the immunities
granted to Omar Al Bashir under international law and attached to his position
as a Head of State. Consequently, there also exists no impediment at the
horizontal level between the DRC and Sudan as regards the execution of the 2009
and 2010 Requests.
30. As stated in paragraph 19 above, the DRC maintains to be bound by the
obligation that “no serving AU Head of State or Government […] shall be
required to appear before any international court or tribunal during their term of
office”.40 However, it follows from the above that the conflicting obligations
which the DRC claims exist are not merely between the African Union and the
Court. Rather, the conflict actually lies between the decision of the African Union
to retain the immunity of Omar Al Bashir and the SC Resolution 1593(2005)
which removed such immunity for the purpose of the proceedings before the
Court. In this case, the conflict is resolved by virtue of articles 25 and 103 of the
UN Charter. According to article 25 of the UN Charter “[t]he Members of the
United Nations agree to accept and carry out the decisions of the Security
ICJ, “Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)”, Judgment,
3 February 2012, para. 58.
40 ICC-02/05-01/09-190-AnxII-tENG, p. 7.
39

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Council in accordance with the […] Charter”. In its advisory opinion on Namibia
the ICJ stated, “when the Security Council adopts a decision under article 25 in
accordance with the Charter, it is for member States to comply with that decision
[…]. To hold otherwise would be to deprive this principal organ of its essential
functions and powers under the Charter”.41
31. Further, according to article 103 of the UN Charter “[i]n the event of a conflict
between the obligations of the Members of the United Nations under the present
Charter and their obligations under any other international agreement, their
obligations under the […] Charter shall prevail”.42 Considering that the SC,
acting under Chapter VII, has implicitly lifted the immunities of Omar Al Bashir
by virtue of Resolution 1593(2005), the DRC cannot invoke any other decision,
including that of the African Union, providing for any obligation to the contrary.
32. In view of the foregoing, the Chamber considers that the DRC not only
disregarded the 2009 and 2010 Requests related to its obligation to cooperate in
the arrest and surrender of Omar Al Bashir, pursuant to articles 86 and 89 of the
Statute, but also SC Resolution 1593(2005).43 This course of action calls upon the
SC and the Assembly of States Parties to take the necessary measures they deem
appropriate.
33. In this context, the Chamber wishes to reiterate that, unlike domestic courts,
the ICC has no direct enforcement mechanism in the sense that it lacks a police
ICJ, “Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970)”, Advisory Opinion, 21 June 1971,
para. 116.
42 See also ICJ, “Case Concerning Questions of Interpretation and Application of the 1971 Montreal
Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom)”,
Provisional Measures, Order of 14 April 1992, para. 37.
43 S/RES/1593 (2005). As stated above, the DRC is a member of the United Nations, and
accordingly, by virtue of article 25 of the UN Charter, it is bound “to accept and carry out the
decisions of the Security Council in accordance with the […] Charter”.
41

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force. As such, the ICC relies mainly on the States’ cooperation, without which it
cannot fulfil its mandate. When the SC, acting under Chapter VII of the UN
Charter, refers a situation to the Court as constituting a threat to international
peace and security, it must be expected that the Council would respond by way
of taking such measures which are considered appropriate, if there is an
apparent failure on the part of States Parties to the Statute or Sudan to cooperate
in fulfilling the Court’s mandate as entrusted to them by the Council. Otherwise,
if there is no follow up action on the part of the SC, any referral by the Council to
the ICC under Chapter VII of the UN Charter would never achieve its ultimate
goal, namely, to put an end to impunity. Accordingly, any such referral would
become futile.
34. Having stated the above, the Chamber recalls article 87(7) of the Statute
according to which, “[w]here a State Party fails to comply with a request to
cooperate by the Court contrary to the provisions of 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”. Since the DRC has failed to cooperate with the Court with
regard to the arrest and surrender of Omar Al Bashir, thus preventing the
institution from exercising its functions and powers under the Statute, the Court
cannot but refer the matter to the Assembly of States Parties and the SC.

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FOR THESE REASONS, THE CHAMBER HEREBY
a) finds that the Democratic Republic of the Congo: (1) has failed to cooperate
with the Court by deliberately refusing to arrest and surrender Omar Al Bashir,
thus preventing the Court from exercising its functions and powers under the
Statute; and (2) has failed to comply with its obligations to consult with the
Chamber in accordance with article 97 of the Statute and rule 195(1) of the Rules
on the problem(s) which have impeded the execution of the requests for arrest
and surrender of Omar Al Bashir during his visit, namely to bring to the
attention of the Court relevant information which would have assisted it in
deciding on the problem raised under article 98(1) of the Statute;
b) refers, in accordance with regulation 109(4) of the Regulations, the present
decision to the President of the Court for transmission to the Security Council,
through the Secretary General of the United Nations; and
c) refers, in accordance with regulation 109(4) of the Regulations, the present
decision to the President of the Court for transmission to the Assembly of States
Parties.

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Done in both English and French, the English version being authoritative.

_____________________
Judge Ekaterina Trendafilova
Presiding Judge

_____________________________
Judge Hans-Peter Kaul

_____________________________
Judge Cuno Tarfusser

Dated this Wednesday, 9 April 2014
At The Hague, The Netherlands

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