By Didas Gasana
There are many people who actually get misled by the wording of resolution 1593 where it reads “urge”. Many a people interprete this to mean that non-signatories have no legal mandate to effect the arrest warrant. But Rwanda, whether party to the Rome Statute or not, is a member of the UN agencies, when the UN Security Council refers a case to the Court for investigation and prosecution, it involves the UN member states. In other words, it involves the obligation to cooperate of both state parties and states not party to the ICC.
The authority of the UN Security Council is derived from the UN Charter. By virtue of Article 25 of the UN Charter, all decisions made by the UN Security Council are binding upon all UN member states. Consequently, the UN Security Council can, when it refers to the ICC a criminal case related to the maintenance of world peace, ask all UN member states to co-operate in the Court’s process of investigating that case. Owing to the nature of the UN Security Council, such requests are binding upon all UN member states. There are already cases to show the influential role of the UN Security Council in the ICC and of its requests for co-operation with the Court.
Acting under Chapter VII of the UN Charter, UNSC adopted Resolution 1593 on 31 March 2005, in which it decided to “refer the situation in Darfur since 1 July 2002 to the ICC Prosecutor”. The Security Council further decided “that the Government of Sudan and all other parties to the conflict in Darfur shall co-operate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to co-operate fully”. That’s the difference between cases referred by the UNSC and those initiated by the prosecutor.
However, states not party to the ICC are obliged to co-operate with it not only in instances of referrals by the UN Security Council but also under the provisions in the Geneva Conventions whereby states must ‘‘respect and ensure respect’’ for international humanitarian law.
The crimes under ICC jurisdiction fall into the category of the most serious international crimes, including war crimes. As stated in Article 8 of the Rome Statute, “war crimes” means “grave breaches of the Geneva Conventions of August 12, 1949”. There is therefore a close link, in terms of war crimes, between the Rome Statute and the 1949 Geneva Conventions.
Article 1 common to those Conventions and the corresponding article 1 in Protocol I thereto lays down the obligation to respect and ensure respect for IHL: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” Therefore, in accordance with this provision, the contracting states must not only respect, but must also ensure respect for, the Geneva Conventions and Protocol I. The problem has been that the UNSC, after referral, has not been keen to act seriously upon non-cooperation.