I enjoyed reading your insightful post.

I hope you can further elaborate your arguments regarding the obligations Res. 1593 imposes on UN Members. You state in your post, “It can be convincingly argued that the cooperation ‘required’ by Res. 1593 encompasses a number of positive acts that can be ‘required or expected’ from those all UN member States.” Your use of the word “required” implies an obligation. However, as Mr. Akande as rightly pointed out, Res. 1593 merely “urges” UN members to cooperate. Further, in your response, you stated that you do not argue UN members are obligated to take positive measures but rather that you argue that they “should” refrain. In other words, UN members, with the exception of Sudan, are not legally obligated to cooperate with the ICC. So, is your argument that UN member states should cooperate with the ICC as a matter of policy?

Second, are you making argument that even though Res. 1593 does not obligate UN members to take an affirmative step to assist the ICC, they are nonetheless obligated from taking any actions that would undermine the ICC in this case? If so, what is the authority for this conclusion?

Third, do you know if Eritrea has “un-signed” the Rome Statute? Moreover, you argue that inviting and welcoming Al-Bashir defeats the object and purpose of the Rome Statue. Is failure to surrender Al-Bashir, a person who has been indicted by the ICC, an additional breach of an international treaty, i.e., the Rome Statute?

I appreciate your thoughts.

I actually agree with you that Res. 1593 does not impose any firm obligation on member States of UN (other than Sudan) to cooperate with the ICC in the Darfur case. This is a point, I clearly stated in my post. I argued rather that member States SHOULD refrain from any action that undermines ICC authority out of deferrence for the Security Council, which urged them to cooperate fully.

My analysis of the issue is based first on Res. 1593 and then on the Rome Statute. In the second part of the analysis, I think I made clear the distinction to be drawn between the signatory States that invited Bashir and those States that welcomed Bashir on their territories but are not signatories of the Statute. My conclusion is that for the former, VCLT (article 18) does create a miminal obligation of restraint from behaviour that undermines the fundamental object and purpose of the Rome Statute.

As for the main argument of your coming post, I, once again, am in agreement with you. I am though looking forward to reading the piece, which I anticipate will be a very insightful contribution to the debate on this issue.

Thank you for this post. You find an obligation of restraint on the part of UN members, including non-parties to the ICC Statute in Res. 1593. However, the Council has only imposed explicit obligations of cooperation on one non-party (Sudan). There is no explicit obligation in Res. 1593 for other States to cooperate with the Court. All that the Council does is that it “urges all States and concerned regional and international organizations to cooperate fully.” The word “urges” suggests nothing more than a recommendation or exhortation to take certain action. That there is no obligation on non-parties to cooperate with the ICC is made clear by the Council “recognizing that States not party to the Rome Statute have no obligation under the Statute.” Therefore, its is clear that non-parties have no OBLIGATION to arrest Bashir, were he to come within their territory.

Or are you suggesting that the obligation of UN Members is to prevent Bashir from coming into their territory? If that is your point, that goes beyond the obligations that ICC parties have. Those parties have an obligation to arrest and not to prevent entry. Moreover, an obligation to prevent entry might itself be contrary to the work of the ICC if non-parties are PERMITTED to arrest Bashir (though not obliged to do so). In the coming days, I will put up a post making the argument that non-parties to the ICC Statute are not obliged to arrets Bashir, they may be permitted to do so as a matter of international law.