Enforcing Cooperation Differently: Time to Criminalise Active Non-Cooperation in the Rome Statute
Book chapter by Bernard Ntahiraja, published in International Criminal Justice in Africa 2018, edited by HJ van der Merwe and Gerhard Kemp.
Cooperation between states and the International Criminal Court has been a topic of academic discussion and political concern since the creation of that court -actually even before -. While state’s obligation to cooperate with the Court is clearly stated in the Rome Statute, its enforcement is rather problematic. All the Statute provides for is a possible finding of non-compliance by a pretrial chamber of the Court with a possibility of referring the matter to the Assembly of States Parties [ASP] and/or the United Nations Security Council. More often than not, these political bodies do not take action. This chapter explores an additional tool to enforce cooperation. The proposal is to criminalise forms of non-cooperation that the chapter labels as active non-cooperation. Indeed, individuals – state officials - sometimes do not content themselves with ignoring court’s requests to cooperate. They take active and concrete steps to prevent the Court from performing its functions. Exploring venues for criminalisation, the chapter discusses the concepts of complicity after the fact [as a mode of liability or criminal participation] and offenses against the administration of justice. It concludes that the Rome Statute, as it stands today, does not allow prosecution of active non-cooperation with anyone of these legal tools. Drawing from comparative criminal law and from the history of international criminal law, the chapter submits that amending the Rome Statute to so allow would be a reasonable way forward. Weighing the two techniques, the chapter finds that although they are both reasonable, fairness and legal soundness make it preferable to criminalise active noncooperation as an offense against the administration of justice rather than as complicity.
The book is available here (open access).