On 18 March, the Pre-Trial Chamber II (PTC II) of the International Criminal Court (ICC) rendered a decision on the ‘Request for Reconsideration of the “Decision on Mongolia’s Requests for Leave to Appeal, Temporary Stay of the Proceedings, and Related Matters”’ filed by Mongolia on 2 December 2024. In essence, the Chamber denied the state party its final opportunity to get an appellate review of the Finding under Article 87(7) of the Rome Statute dated 24 October 2024 (hereinafter ‘Non-Cooperation Finding’) in which the PTC II determined Mongolia’s failure to comply with the request by the Court for cooperation in the arrest and surrender of the Russian President Putin and referred the matter to the Assembly of States Parties (ASP). In parallel with the decision of the Plenary of Judges dated 10 March that dismissed Mongolia’s other Request for Partial Reconsideration on the Disqualification of Judges, the Decision of 18 March marks the conclusion of a series of proceedings before the Court in relation to the Non-Cooperation Finding.
This post argues that the course of proceedings described above has certain implications on the issue of Mongolia’s non-cooperation, specifically, and on other states parties in general. While one may raise substantive questions as to the decisions of the Court, including but not limited to the reasoning for removing the immunities of the head of state that is not party to the Rome Statute (e.g. see here), it is rather the relevance of these proceedings as a whole that seems to be worth an appreciation in a timely manner.
Time for the ASP and the Bureau to Address the Non-Cooperation Finding
First and foremost, the conclusion of the legal proceedings will allow the ASP and its Bureau to revisit the Non-Cooperation Finding. When the matter was first brought to its attention, the Bureau invited a representative of Mongolia to the meeting of 6 November 2024. It took note of the latter’s statement, but did not act further, deciding ‘to defer the matter until all proceedings before the Court had concluded’ (Report of the Bureau on non-cooperation, paras. 36-39). In fact, Mongolia’s two major applications related to the Non-Cooperation Finding were both rejected during November. The Plenary of Judges dismissed the ‘Application for the Disqualification of Judges’ on 15 November, and the PTC II dismissed the ‘Request for Leave to Appeal’ on the 29th of the month.
Yet, the proceedings before the Court did not come to an end because Mongolia filed, as already mentioned, the two requests for reconsideration of these dismissals on the very day when the ASP opened its 23rd session, 2 December 2024. This move, taken together with the ‘Urgent Request for Suspensive Effect’ filed three times in November that sought interim protection of the rights concerned, may reasonably be understood to intend a prolongation of the legal proceedings to block any action the ASP might take on the matter. Thus, the Assembly in its ‘omnibus resolution’ merely took note of the Non-Cooperation Finding and the Bureau’s report and did not adopt any concrete action to address Mongolia’s non-cooperation specifically (paras. 33-34).
Now, all the proceedings have been concluded, and there is no reason for stopping short of taking up the matter. The Bureau can and should address it with a view to making specific recommendations to the Assembly. Indeed, the omnibus resolution also ‘[d]ecide[d] to include on the agenda of future sessions of the Assembly the consideration of non-cooperation issues arising during the inter-sessional period’ (ibid., para. 36, emphasis added). This represents a determination of the Assembly to place under its scrutiny non-cooperation issues, apart from cooperation, as a major subject of discussion in future sessions (cf. the 24th session). Therefore, the Assembly will be able to revisit Mongolia’s non-cooperation insofar as such ‘issue’ (not ‘instance’) may technically be treated as having arisen upon the completion of the proceedings before the Court. It is time for the Bureau and the Assembly to demonstrate that non-cooperation cannot persist. Their actions are vital for the international criminal justice system to be effective.
Having said that, a question remains as to how they should deal with the matter. Since Mongolia can no longer change its decision in the past, the only possible response will be future-oriented. It should be noted in this regard that Mongolia has had many doubts on the impartiality and fairness of the Court throughout the proceedings. One of the allegations made is emblematic in claiming that the PTC II rendered the Decision of 29 November 2024 on ‘Request for Leave to Appeal’ in an hasty manner and that ‘the motivation for its decision may not have been purely legal but political – driven by a desire to resolve the matter before the ASP session, potentially at the cost of fairness and justice’ (paras. 31-38). Even if this were true, such a motivation would not be provable. The Plenary of Judges was thus right in rejecting the claim as ‘entirely speculative’ (para. 17), but Mongolia’s lack of confidence in the Court is clearly observable.
With the foregoing considerations, it would not be wise to act towards condemnation or politicization that might drive Mongolia away from the ICC regime. This state party should face the consequences of its behaviour, but a ‘punitive’ action against it would not be the right solution. The Bureau and the Assembly should rather be fora for a constructive dialogue to prevent future instances of non-cooperation and strengthen the cooperative relationship with Mongolia.
Concerns with Non-Appealability of the Article 87(7) Finding
Second, and more generally, the course of the proceedings before the Court points to a problem of concern to other states parties as well. The disqualification aside, the Court articulated that the finding under Article 87(7) of the Rome Statute was unappealable by nature. It is not intended here to develop an extended discussion on the substance of the Court’s decisions, but the focus is to highlight another aspect of the unsuccessful ending of Mongolia’s legal challenges in a broader context of the circumstances surrounding the Court to date.
In its Decision of 29 November 2024 on ‘Request for Leave to Appeal’, the PTC II considered as to Article 87(7) ‘it important to examine the nature of such finding’ and opined the following:
[…] The primary aim of these referrals is not to enforce a sanction against the non-complying State but rather to notify the relevant bodies of the breach to the Statute, which in turn prevents the Court from exercising its functions. It follows that a chamber’s determination under article 87(7) does not involve a judicial decision in the procedural sense, but rather constitutes a determination of a failure to comply with the statutory obligation to, in this case, cooperate in the arrest and surrender of a suspect. This determination does not constitute a formal ruling on the merits or on a procedural matter of the case, but rather a compliance assessment concerning the duty to cooperate with the Court. In other words, this notification does not concern a procedural issue that would directly impact the rights of the parties or the outcome of the trial. In this regard, since the notification to the States Parties neither affects the fair and expeditious conduct of the proceedings against the person sought by the Court, nor the outcome of the trial, the Chamber’s finding under article 87(7) of the Statute does not amount to an appealable decision within the meaning of article 82(1)(d) of the Statute.
This reasoning is worth a critical review in many respects: it is logically questionable; it does not contain any reference; it is inconsistent with the precedent of the Al Bashir case and the Prosecution Response did not even raise this point.
The most problematic, however, is the categorical exclusion of the Article 87(7) finding from the scope of Article 82(1)(d). This may give rise to uncertainty and concerns about the procedural fairness before the Court among states parties in general, as it indicates that the state party concerned may dispute an alleged non-cooperation only once, with no chance of appeal. Mongolia refuted the Chamber’s reasoning and questioned the denial of appellate review in its request for reconsideration of the decision, but the Chamber dismissed it and presented no interest in engaging with its essentialist ruling (Decision of 18 March, para. 17).
It is true that the Chamber’s decisions constitute no more than a settlement of the proceedings concerning Mongolia’s non-cooperation and do not have any legal effect on other states parties. The conclusion of these proceedings would nonetheless have repercussions on the perception of those states parties, in particular those that disagree with the Court’s jurisprudence on the law of immunities of the head of state or possess potential or real risks of becoming another addressee of the Article 87(7) finding. These states may find the Court procedure less credible. Perhaps one would recall that in February, the PTC I invited Italy to provide submissions concerning its failure to surrender Mr. Njeem to the Court, and that the Israeli Prime Minister Netanyahu received a warm welcome in Hungary in April, which also led to an invitation to the same effect.
The non-appealability of the Article 87(7) finding, as indicated by the PTC II, could be a deterrent factor in decision-making for such states, while it may undermine the procedural integrity of the Court, whose effective functioning depends much on cooperation by states parties. Either way, it is how the ASP and its Bureau will deal with the issue of Mongolia’s non-cooperation that determines the way forward.
The author acts fully in personal capacity and this post does not in any way represent a view of his affiliated organisation.
BY Kazuki Goto
Kazuki Goto is Researcher at the Embassy of Japan in the Netherlands. His research interest concerns the prohibition of the use of force, international criminal law and international accountability processes.…

Published Date:2025-05-14