Closing the ICC Arrest Gap: A Graduated Cooperation Mechanism for States Parties
- Edmarverson A. Santos
- Jul 10
- 5 min read
A policy brief proposing a legally limited, graduated response system for ICC arrest-warrant non-cooperation under the Rome Statute.
Policy Brief · International Criminal Justice
The International Criminal Court cannot execute arrest warrants on its own. It depends on States Parties to arrest and surrender suspects, yet recent failures to act on ICC warrants have exposed a recurring ICC Arrest Gap: judicial findings of non-cooperation reach the Assembly of States Parties, but the institutional response remains irregular, political, and weakly structured. This policy brief argues that the Assembly can do more under existing Rome Statute powers without pretending that it already has authority to impose sanctions, suspend voting rights, or override judicial findings.
Executive Summary: The ICC Arrest Gap
The brief addresses a narrow but serious enforcement problem in international criminal justice. The Rome Statute creates binding cooperation duties, especially under articles 86 and 88, but the Court has no police force and no independent enforcement arm. When a State Party fails to arrest and surrender a person subject to an ICC warrant, a Chamber may make a finding under article 87(7) and refer the matter to the Assembly of States Parties. The problem is what happens next.
The brief argues that the existing process does not provide a predictable, case-specific, and graduated response. Recent referrals involving Mongolia, Hungary, Italy, and Tajikistan show the same structural difficulty: the Court can identify non-compliance, but the Assembly has not developed a consistent institutional pathway for follow-up.
The proposed solution is an Arrest Cooperation Mechanism adopted by an Assembly resolution. It would have two tracks. The first is preventive: voluntary legal-readiness review, practical support, and a Cooperation Support Facility to help States Parties prepare for complex arrest requests. The second is responsive: once a Chamber has already made and referred an article 87(7) finding, a subsidiary body would classify the conduct and recommend proportionate Assembly action.
The proposal keeps the legal limits clear. The Assembly would not reopen the Chamber’s finding, review the warrant, direct the Prosecutor, or act as an appellate body. Measures available under current law would include structured dialogue, remedial plans, public reporting, formal censure, and deadline-bound follow-up. Stronger consequences, such as voting-rights suspension, treaty-based financial penalties, or a binding compliance procedure, would require amendment under Article 121 of the Rome Statute.
The brief also preserves legal uncertainty around immunity. It recognizes that ICC case law has rejected certain immunity arguments as a bar to cooperation, while also acknowledging that the relationship between articles 27 and 98 remains contested in some horizontal arrest settings. That complexity may affect the proportionality of the Assembly’s response, but it cannot be used to undo an article 87(7) finding.
Key Recommendations
1. The Assembly of States Parties should adopt an Arrest Cooperation Mechanism by resolution, using existing powers under article 112 of the Rome Statute.
2. The Assembly should establish a subsidiary response body under article 112(4) to handle article 87(7) referrals in a structured and deadline-bound manner.
3. States Parties should be offered a voluntary self-assessment process covering Part 9 implementing legislation, central authority arrangements, article 97 consultations, judicial-review procedures, and contingency planning for politically sensitive arrests.
4. A Cooperation Support Facility should be created to provide legislative drafting assistance, model procedures, training, secure communications, expert support, and operational coordination, without reimbursing ordinary domestic costs already allocated to requested states under article 100.
5. The response track should classify referred conduct into specific categories, including cured or substantially remedied failure, capacity-related non-compliance, remediable procedural non-compliance, unjustified or negligent non-compliance, and repeated or aggravated obstruction.
6. The Assembly should adopt a graduated response matrix that links each category to proportionate measures, including confidential assistance, written deadlines, monitored action plans, public reporting, formal censure, and closure once compliance is cured.
7. The mechanism must not reopen judicial findings, reconsider arrest warrants, review the Chamber’s reasoning, or interfere with judicial or prosecutorial independence.
8. After three years, the Assembly should commission an independent review before deciding whether to pursue treaty amendment for firmer consequences that are not available under current law.
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Why This Matters
The ICC Arrest Gap is not only a logistical problem. It affects the credibility of the Rome Statute system. Arrest warrants that remain unenforced for years weaken the link between judicial action and accountability. They also create a political incentive for states to treat cooperation duties as negotiable when the suspect is powerful, strategically useful, or diplomatically protected.
The brief’s value lies in its legal restraint. It does not pretend that the Assembly can impose sanctions merely because non-cooperation is serious. Article 112 gives the Assembly authority to consider questions of non-cooperation and create subsidiary bodies, but it does not clearly authorize fines, economic sanctions, or broad suspension of voting rights. The proposal, therefore, separates what can be done now by resolution from what would require amendment.
That distinction matters. A legally overreaching mechanism would be vulnerable to challenge, politically divisive, and easy for reluctant states to dismiss. A mechanism built around current powers has a better chance of adoption. It would not solve the enforcement problem entirely, but it would replace ad hoc political reaction with a repeatable process.
The preventive track is also important. Not every failure to cooperate has the same cause. Some states may lack implementing legislation, operational capacity, secure channels, or clear domestic procedures for urgent arrest requests. Others may act in bad faith or deliberately frustrate surrender. Treating those situations identically would be legally crude and politically counterproductive. A graduated system allows the Assembly to distinguish capacity problems from obstruction.
The response track gives article 87(7) referrals institutional consequences without undermining the Court. Once a Chamber has made the judicial finding, the Assembly’s role would be administrative and political, not appellate. It would assess response categories, mitigation, aggravation, remedial action, and recurrence. That preserves judicial independence while giving the Assembly a serious role in protecting cooperation.
The brief also avoids a common weakness in ICC reform debates: demanding immediate treaty amendment before building evidence of what works. Amendment under article 121 is difficult and slow. A resolution-based mechanism could operate sooner, generate practice, identify recurring failures, and create the factual record needed for any later amendment track.
For students, researchers, practitioners, and policy professionals, the brief offers a concrete model for strengthening ICC cooperation without collapsing legal analysis into advocacy. It accepts the limits of the Rome Statute while showing that those limits do not justify institutional passivity.
Suggested Citation
Edmarverson A. dos Santos, Closing the ICC Arrest Gap: A Graduated Cooperation Mechanism for States Parties, Diplomacy & Law, 2026.
