Shall I Surrender Thee to the International Criminal Court‘: The United States and Bilateral 'Non-Surrender' Agreements

Abstract

On 17 July 1998 and after years of negotiation, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome conference) adopted the Statute of the International Criminal Court (ICC). Although some heralded the creation of the ICC as [one of the] major achievements in international law during the past century, that sentiment was and is certainly not universally shared. In particular the United States has strong reservations about the ICC. The last five years, it has taken what some have called unprecedented diplomatic, legislative, and executive measures designed to diminish the effectiveness of the Court. The most recent of these efforts is the conclusion of so called bilateral 'non-surrender' agreements, in which each state agrees that it will not surrender citizens of the other party to the ICC without the express consent of that other party. The United States argues that these agreements are specifically provided for by Article 98, paragraph 2 of the ICC Statute. The 'non-surrender' agreements are highly controversial and have stirred considerable debate in the international community as well as in the literature. In both cases, however, a piecemeal approach prevails and emotions rather than legal arguments seem to dominate the debate. This thesis aims to remedy these shortcomings by providing a comprehensive legal analysis of the 'non-surrender' agreements without taking a stance on their political or even moral 'appropriateness'. The main research question of this thesis is: are the 'non surrender' agreements as currently concluded by the United States compatible with international law (in particular the ICC Statute) and if not, what would be the consequences thereof‘ Part I of this thesis (Chapters 2-3) will provide the relevant factual introduction necessary to put the phenomena of the 'non-surrender' agreements into context. In particular, it will focus on the position of the United States towards the ICC prior, during and subsequent to the negotiations of the ICC Statute. Part II of this thesis (Chapters 4-6) will provide a legal analysis of the 'non-surrender' agreements and answer the main research question of this thesis. First, it will assess the validity of the 'non-surrender' agreements under international law. Chapter 4 of this thesis will argue that as international law currently stands, the 'non surrender' agreements are not invalid under international law. Having established the validity of the 'non surrender' agreements allows us to move on to perhaps the most important question: Does Article 98, paragraph 2 of the ICC Statute apply to the 'non-surrender' agreements‘ Chapter 5 - which forms the core of this thesis - will argue that the 'non-surrender' agreements are only partially covered by Article 98, paragraph 2 and thus not fully compatible with the ICC Statute. Having established that the 'non-surrender' agreements are neither invalid nor fully covered by Article 98, paragraph 2, we are left with a final question: What consequences does this have under international law‘ Chapter 6 will argue that as international law currently stands, a signatory or state party to the ICC Statute that enters into a 'non surrender' agreement does not breach any obligation under international law. A state party to the ICC Statute that is also a party to a 'non surrender' agreement cannot avoid a breach, however, if it is confronted with an incompatible request (i.e. a request prohibited by the 'non-surrender' agreement but not covered by Article 98, paragraph 2). In such a case it incurs state responsibility. The thesis concludes with a conclusion and summary of findings (Chapter 7).