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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 Counsel for the Defence

Fatou Bensouda, Prosecutor
James Stewart, Deputy Prosecutor

Legal Representatives of Victims Legal Representatives of Applicants

Unrepresented Victims Unrepresented Applicants for

Participation/Reparation

The Office of Public Counsel for The Office of Public Counsel for the
Victims Defence

States Representatives Amicus Curiae

Competent authorities of
the Democratic Republic of the Congo

REGISTRY
Registrar Deputy Registrar
Herman von Hebel

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Others

Section

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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”).

1 S/RES/1593 (2005).
2 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-02/05-
01/09-95.
3 ICC-02/05-01/09-7.

4 ICC-02/05-01/09-96.

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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 Al-

Bashir’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

5 Presidency, ICC-02/05-01/09-143.
6 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.

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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

10 ICC-02/05-01/09-187 and its confidential annexes.

11 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.

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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 non-

enforcement 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

17 ICC-02/05-01/09-190-AnxII-tENG.
18 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.

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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 ICC-02/05-01/09-190-AnxII-tENG, p. 6.
23 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

24ICC-02/05-01/09-190-AnxII-tENG, p. 6.
25 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.

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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

26 ICC-02/05-01/09-190-AnxII-tENG, p. 6.
27 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.

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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 ICC-02/05-01/09-190-AnxII-tENG, p. 8.
32 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

33 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.

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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

34 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 Pre-

trial 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; Pre-

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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

39 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.

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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

41 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”.

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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.

No. ICC-02/05-01/09 16/18 9 April 2014

 ICC-02/05-01/09-195 09-04-2014 17/18 NM PT

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.

No. ICC-02/05-01/09 17/18 9 April 2014

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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

No. ICC-02/05-01/09 18/18 9 April 2014