The Dialectic of the Rome Statute: Oppositeness and Unity of the Complementarity and Corrective Function of the International Criminal Court

On the Principle of Complementarity in the Rome Statute of the International Criminal Court

Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003). Antonio Cassese, Paolo Gaeta, John R.W....

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

On 17 March 2018, the Philippines withdrew from the Rome Statute, following the directive of President Rodrigo Duterte. The Philippines’ exit from the treaty creating the International Criminal Court (ICC) came in the wake of Prosecutor Fatou Bensouda’s decision to open a preliminary examination into President Duterte’s “war on drugs,” due to “reported incidents involv[ing] extra-judicial killings in the course of police anti-drug operations” which may constitute crimes within the jurisdiction of the ICC. Before delving into the impact, consequences, or effects of the Philippines’ departure from the ICC regime, one threshold issue needs to be addressed first: whether President Duterte’s decision passes legal muster to begin with. If the decision to withdraw the Philippines from the Rome Statute was vitiated by legal defects under international and/or municipal law, all propositions about how the ICC should henceforth proceed vis-a-vis the Philippines could potentially be rendered moot. Before embarking on any further inquiries, therefore, a conversation on this matter should first be had. To move this conversation forward, I argue in this paper that there are substantial issues that can be raised concerning President Duterte’s decision to withdraw the Philippines from the Rome Statute. Drawing from municipal and international law and jurisprudence, I raise two grounds to support the proposition that President Duterte’s decision is open to legal challenge: first, the decision, made unilaterally by President Duterte without securing consent from, or even giving notice to, the Senate (which concurred in the Rome Statute’s ratification) indicate a potential violation of the Philippine Constitution; second, the terms of his decision and the stated justifications on which it was predicated indicate potential violations of international treaty law. Either or both of these grounds can possibly render his decision legally defective.

In recognition of the consensus that the category of crimes against humanity is 'among the most serious crimes of concern to the international community as a whole', the international community has or had restricted the reach of this crime to the most serious crimes committed with the specific intent to endorse and further the policy of a State or some organization, until arguably at least 1996 in the view of the ILC when it so recognized in its Draft Code of Crimes Against the Peace and Security of Mankind, or until the adoption of the Rome Statute of the International Criminal Court (Rome Statute) in the view of some scholars who seem to believe that the Rome Statute has relaxed the mens rea requirement, at least to some extent, or even now in my own view which holds that the Rome Statute has effected no such relaxation. In this chapter I shall attempt to outline my arguments on this aspect of the definition of crimes against humanity in the Rome Statute, without discussing other aspects in detail. In so doing, I shall primarily rely upon a fair interpretation of the language of Article 7 and other relevant provisions in the Rome Statute, without dwelling upon the status of the concept outside the Rome Statute, such as under customary international law. I do this for several reasons. First, Article 21 of the Rome Statute directs the Court to give priority to the Statute, and treating fairly the text and context of a treaty is the main part of the task of treaty interpretation in general. Secondly, the drafting documents relating to the Rome Statute are not easy to work with, the unhappy result of a monumental drafting undertaking of the international community. Thirdly, definitions of crimes are supposed to be accessible to the ordinary person who should not be required to be able to carry a law library with him, not to mention to consult the voluminous compilations of the various proposals lumped together without any collectively and officially endorsed explanations putting these proposals into a coherent whole. I will also discuss the relevant provisions in the Elements of Crimes adopted, under Article 9 of the Rome Statute, to assist the interpretation and application of the definitions of crimes. But the commands of the Rome Statute cannot be overridden by provisions in the Elements of the Crimes which, as mandated by Article 9 of the Statute, 'shall be consistent with the Rome Statute'. Finally and more importantly, Article 22(2) of the Rome Statute directs that 'The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favor of the person being investigated, prosecuted or convicted.' In my view, this provision prevents any creative, tangentially arguable interpretations inspired by policy considerations or a cavalier assessment of the status of the crime under customary international law. After an analysis, I conclude that the language of the definition of crimes against humanity in Article 7 of the Rome Statute, read as a whole and together with the command in Article 22(2) to resolve ambiguity in favor of the defendant, supports the argument that for a defendant to be convicted of a crime against humanity, he must have endorsed and intended to further the policy of the State or organizational policy to conduct an attack against a civilian population. The phrases in the definition, “committed as part of … attack” (which delineates the voluntary, affirmative actions of the defendant) and “pursuant to or in furtherance of a … policy” (which delineates a necessary component of the attack) can be given effect only by adopting this interpretation. These phrases together show that the separate constituent acts of a crime against humanity only become constituted as a crime against humanity when the defendant has affirmatively intended his acts to form, and committed them as, part of the attack, therefore endorsing and furthering the built-in policy element. The phrase “with knowledge of the attack” was included, according to the drafters, out of an abundance of caution, and, in any event, may be given effect in some situations so as to ensure that the defendant’s constituent acts did in fact form part of such an attack. Accordingly, the specific intent standard should apply to the policy element in the definition of the crimes against humanity. This interpretation fits well with the current developments in international human rights law and international political and philosophical thought that have put individual autonomy on the pedestal and used it as the basis for individual responsibility.

Human Trafficking and Its Prosecution: Challenges of the ICC

The publication of a Policy Paper on Case Selection and Prioritization (the “Policy Paper”) by the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) in September 2016 has reignited the longstanding discussion about the status of environmental crimes under international law. The Policy Paper expressed the intention of the OTP to consider, in the selection of crimes to be submitted to the jurisdiction of the ICC, those committed through, or resulting in, “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.” Such wording soon gained widespread attention, prompting many news outlets to declare that, from now on, the ICC would focus on prosecuting “environmental crimes.” The news sources’ enthusiasm, however, appears misplaced for several reasons. The first and foremost objection comes from a consideration of the ICC’s limited jurisdiction. In fact, this is strictly confined by the Rome Statute to the prosecution of “the most serious crimes of [international] concern,” currently identified as the genocide, war crimes, crimes against humanity, and aggression. The only reference to the environment that appears in the Rome Statute is included in Article 8.2(b)(iv), which lists among the activities constituting a war crime the act of, “[i]ntentionally launching an attack in the knowledge that such attack will cause . . . widespread, long-term and severe damage to the natural environment.” Given the limited attention to the environment, it would be difficult to maintain that the ICC has jurisdiction over “environmental crimes,” unless it could be shown that such jurisdiction either (i) may be derived implicitly from the current description under the Rome Statute of the crime of genocide, war crimes, and crimes against humanity, or (ii) has been extended by virtue of the creation of a new rule of international law, either customary or treaty-based. Most importantly, though, the possibility for the ICC to prosecute “environmental crimes” seems prevented by the failure to find a satisfactory definition for this notion. In the legal practice, this expression doesn’t have any authoritative meaning, as international treaties remain completely silent on the issue. And while several attempts at a definition have been made, as will be examined in more detail below, each of them raises several doubts and concerns. Many of the suggested definitions are, in fact, characterized by the lack of clarity with respect to the different sources from which the liability for “environmental crimes” arises and the specific consequences attached thereto. Indeed, such definitions indiscriminately consider: (i) the criminal liability of an individual arising from the breach of a rule of national environmental law; (ii) the criminal liability of an individual arising from the breach of a rule of international environmental law; and (iii) the liability of the State arising from the breach of a rule of international environmental law, whether customary or treaty-based. Of these three options, only the second would seem viable to serve as a foundation of the ICC’s jurisdiction over environmental crimes. The picture that emerges from the above-mentioned remarks shows that there is still widespread confusion on the consideration to be attributed to environmental crimes under international law, as well as the possibility of seeking prosecution for these crimes before an international tribunal. The purpose of this Note is to address such confusion and shed some light on the treatment that environmental crimes receive under international law. To do so, Part II provides a brief and general overview of the principles of international criminal law, with particular respect to: (i) its definition and the features distinguishing it from other overlapping branches of international law; (ii) the crimes that can be considered as belonging to its realm; and (iii) its sources and the possibility for it to evolve over time. Part III discusses what the term “environmental crime” means and which specific offenses, if any, may be punishable under international criminal law. In doing so, this Part will focus on the fundamental difference between “crimes under international law” and “transnational crimes” and the differences in the regimes applicable to each category. Lastly, Part IV discusses the current limits of the ICC’s jurisdiction and, in particular, the possibility of extending it to the prosecution of crimes, including environmental crimes not currently captured by the Rome Statute. Accordingly, this Part examines the potential impact of the Policy Paper in changing the scope of the ICC’s jurisdiction, as well as the relevance of other proposals advanced by academics and scholars to extend the ICC’s jurisdiction to environmental crimes. In this context, relevance will be given to the introduction of a crime of “ecocide” as a fifth crime against peace, and to the amendment of the description of the crimes provided under the Rome Statute through customary international law.

The Syrian civil war has been singled out as one of the world’s largest humanitarian crises since World War II, with over 6 million displaced persons who were forced to flee a war-torn country. Over 1 million Syrians have been forcibly deported to Jordan – a country located along the southern region of Syria. Since Syria is not a State party to the Rome Statute of the International Criminal Court (ICC) – which would otherwise have provided the most obvious basis for the Court to claim the necessary jurisdiction to hold wrongdoers responsible for the forced displacement – referral under Chapter VII of the United Nations Charter by the Security Council (UNSC) is another option; such a referral would be similar to that done in 2011 for crimes in Libya. However, the UNSC has repeatedly failed to hold perpetrators of war crimes in Syria criminally accountable. The fact that Jordan is a State party to the Rome Statute has led some Syrians to look more closely at an earlier crisis in the international justice arena, i.e. the refugee crisis of the Rohingya. In that case, the Rohingya claimed that, while the crime of deportation commenced in Myanmar, a non-State party to the Rome Statute, deportation was being carried out in the territory of a neighbouring country, namely Bangladesh – which is a State party to the Rome Statute. The ICC accepted the argument, justifying its decision on the basis of Article 19(3) of the Rome Statute regarding whether the crime against humanity of deportation under Article 7(1)(d) falls within Article 12(2)(a), which implies that the ICC may exercise its jurisdiction if “(a) the State on the territory of which the conduct in question occurred.” Therefore, ICC Prosecutor Fatou Bensouda confirmed the jurisdiction of the Court to investigate the prosecution against the Rohingya people. Since their calls for criminal accountability have found no adequate response from the international community, Syrians were inspired by the Rohingya case. In March 2019, 25 refugees in Jordan submitted a communication to Bensouda contending that by relying on Article 15(1) of the Rome Statute, “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.” The refugees asked that Bensouda apply the Myanmar/Bangladesh decision to the situation of the Syrian refugees who have been forcibly displaced to Jordan. Insisting that, since both actus reus and mens rea are sufficient to establish the intention of the Syrian government to force civilians out the country, the conduct establishes the crime of forced displacement as a crime against humanity for the purposes of the Rome Statute. Notwithstanding the Rohingya case, the international community’s reaction to the Syrian file has been frustrating. Many are doubtful that Syrians can succeed with their claim, and others doubt that Jordan will cooperate. This chapter examines how the Syrian case fits within the definition of “forced displaced people.” It discusses the Rohingya case at the ICC, and it investigates how the international community has responded to the Syrian refugee crisis. Moreover, it suggests that while the international community has endeavoured to contain the Syrian refugee crisis – including innovative regulation and policymaking arrangements – it has been hesitant to support refugees’ efforts to take legal measures that might contribute to real solutions for the Syrian people. Moreover, it analyses whether Syrians can succeed in their submission to the ICC. Finally, it considers the question of whether the Jordanian government’s approval is a pre-condition for the Court to have jurisdiction over the crime of forced displacement.

The article examines the main prerequisites for the creation of the International Criminal Court. It has been found that the international community has been trying for a long time to form the standards of international justice and to build a full-fledged, independent, permanent international judicial institution. In 2002, on the basis of the Rome Statute, the International Criminal Court was established, the main principle of which is the principle of complementarity, that is, the priority in the exercise of criminal jurisdiction is given to national judicial systems. The main task of the International Criminal Court is to strengthen Ukraine's national capacity to investigate and deal with the most serious international crimes. Ukraine signed the Rome Statute back in January 2000, taking the first step towards joining this document, but it has not been ratified yet. Ukraine can recognize the jurisdiction of the International Criminal Court under the conditions defined by the Rome Statute of the International Criminal Court. Legal aspects of Ukraine's interaction with the International Criminal Court, prerequisites for making changes to national legislation are considered. An analysis of the main legislative changes made in the period from 2016 to 2022 was carried out - the laws of Ukraine "On Amendments to the Constitution of Ukraine (Regarding Justice)” and "On Amendments to the Criminal Procedure Code of Ukraine and other legislative acts of Ukraine regarding cooperation with the International Criminal Court”. The statements of Ukraine regarding the recognition of the jurisdiction of the International Court of Justice, the conclusions of the prosecutor and the office of the International Court of Justice were considered. The conditions of cooperation of both participating states and non-participating states with the ICC during the investigation were analyzed. Consider the consequences of non-cooperation. It was concluded that Ukraine's ratification of the Rome Statute will give it the opportunity to be a full-fledged participant in the processes of the International Criminal Court, organizational and procedural rights, as well as additional guarantees regarding criminal prosecution for particularly serious crimes of guilty persons, limiting the resolution of this issue exclusively to internal means, which may be ineffective.

The International Criminal Court (the ICC) is an independent institution and the world's first international permanent criminal court. The ICC was created via a multi-lateral treaty; the Rome Statute adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 17 July, 1998 in Rome (see Appendix F.1 for the text of the Rome Statute). This is unlike the situation with the other international criminal courts so far discussed; the ICTR, ICTY and SCSL. The latter courts have a mandate which ends after a defined period of time. The ICTR, ICTY and SCSL were set up by the United Nations Security Council in response to the need to respond to specific situations that occurred in these jurisdictions and avoid the perpetrators of international crimes involved in those particular situations escaping justice. The Assembly of States (comprised of the State Parties to the Rome Statute) is the body that has oversight over the ICC and is responsible for any legislative decisions affecting the legal instruments guiding the operation of ICC. The States Parties to the Rome Statute have a legal obligation under that treaty to cooperate with the International Criminal Court. As of 14 November, 2008, there were 108 States Parties (States which had ratified the Rome Statute), but these did not include a number of major powers such as the United States, Russia, and China. There is also an agreement between the United Nations and the ICC which sets out institutional co-operative relations that allows, for instance, for exchange of information, etc. (i.e., the United Nations may have confidential documents relevant to a case being prosecuted by the ICC which it will share with the ICC subject to certain confidentiality provisions. This in order that the Prosecutor may use the information provided by the United Nations to develop further evidence). However, the ICC is not part of the United Nations but rather a completely independent institution. The ICC makes an annual report to the United Nations on its activities. However, the ICC remains a fully independent institution.

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal courts and tribunals as finders. Secondly, I will examine how international criminal courts fit into David's theoretical picture of top-down versus bottom-up judicial bodies. Thirdly, I wish to convey some of my concerns arising from the multiplication of proceedings (criminal and civil) arising from the same facts before different international courts and tribunals. International Criminal Courts as Truth Finders A new feature of the international legal order in the past few decades has undoubtedly been the reemergence of international criminal courts, with the ad hoc criminal tribunals of the United Nations (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), the regional mixed international tribunals (Sierra Leone, Cambodia, East Timor), and the permanent International Criminal Court (ICC). The driving impulses behind the creation of these institutions may, as David mentioned in his lecture, differ from those behind the classical international courts and tribunals. One of the functions of international criminal law courts is that of providing a historical account and achieving reconciliation of post-conflict societies that have gone through a painful episode of mass atrocities. This is something which they share with another newcomer in the international legal order, and reconciliation commissions (TRCs), which in part originate from the same generating impulses. The latter may even be complementary to international criminal adjudication, as Tom suggested in his Holocaust memorial lecture, wondering whether the post-World War II criminal proceedings in Nuremberg should not have been complemented by a commission that could have examined the greater patterns of the historical behind the holocaust. (1) According to some, international criminal courts have, as far as finding process is concerned, little to add to the truth as it is revealed by journalists or historians, who base themselves on largely the same sources. I beg to disagree with that view. The finding process before criminal courts is of a different qualitative nature, because it is obtained through the specific rules of evidence that apply in criminal proceedings, above all the presumption of innocence and the prosecutorial burden of proof. What has been established by a criminal court following a correct procedure can therefore be said to be more credible in terms of its truthfulness than the produced by journalism or history writing. For example, for those who would wish to deny the Srebrenica massacre, it may have been easier to do so when only journalistic and historical accounts of the 1995 event were available than it is today after the judgments of the ICTY in which two panels of judges (first the Trial Chamber and thereafter the Appeals Chamber) found the facts to be established. This function of finding, and the contribution to history writing that results from this, may be one of the core missions for international criminal courts. In post conflict societies, different versions of the traumatic events often compete with each other. (2) It is extremely difficult for national courts in a post conflict society to make an unbiased assessment of these different versions, especially shortly after the events. This assessment is, however, a crucial factor in the process of transition. Without it, post conflict societies will have little more than annals of these traumatic events, produced by journalists and historians. (3) Through the process of judicial fact finding, international criminal courts help to sort out competing accounts of traumatic events in a conflict situation and to determine the account that will count as the official history that society. …

ON 6 MAY 2002, AMERICAN PRESIDENT George W. Bush withdrew the United States' signature from the Rome statute of the International Criminal Court (ICC). Three months later, Bush signed the American Servicemembers' Protection Act (ASPA) into law. The ASPA prohibits the United States from cooperating with the ICC and authorizes the president to use all means necessary to free American personnel imprisoned in by the ICC in The Hague. In addition, the ASPA withholds military aid to certain states party to the Rome statute and mandates that the United States negotiate impunity agreements with states party to ensure that American personnel do not fall under the jurisdiction of the ICC when operating on their territory.Given these and other measures, it has become commonplace for members of the international community to accuse the United States of intransigence towards the progress of international criminal law. Indeed, in light of the fact that it played a pivotal role in establishingPhilippe Lagasse is a doctoral student in the department of political science at Carleton University and the recipient of a Canada Graduate Scholarship. The author thanks Joel J. Sokolsky and Norman Hillmer for commenting on drafts of this article. the Nuremberg trials, the Helsinki Accords and the International Criminal Tribunal for the former Yugoslavia (ICTY), it appears that the US is reneging on the principles of international justice it previously championed. Were American foreign policy a consistent enterprise, such an estimation would have merit. What is often overlooked in commentaries on America's troubled relationship with the ICC is the ongoing internal debate within the American foreign policy elite about the worth and significance of the Rome statute. An examination of this debate shows that the United States is a nation of multiple foreign policy traditions, each competing to direct American statecraft. Seen from this vantage point, it is not simply an American debate about a particular treaty or even the pursuit of international justice. Rather, it is an example of fundamental differences within Washington about how the United States relates to the world.This article aims to place the American ICC debate in the context of these various foreign policy traditions. It begins with an overview of the foreign policy traditions identified by Walter McDougall in Promised Land, Crusader State.(1) It is argued that the American ICC debate is waged in the traditions of exceptionalism, unilateralism and Wilsonianism. Next, the article examines how each of these traditions views and has shaped American policy towards the Rome statute. The argument presented is that the United States' ambivalent relationship with international criminal law and the ICC results from not from hypocrisy or self-service, but from the essential philosophical divisions that exist in America's foreign policy traditions.MCDOUGALL'S TRADITIONSAmerica's first foreign policy tradition, exceptionalism, is defined by two principles. First and foremost is the axiomatic notion held by the American founders that their new country was destined to be different and better than others. Yet the uniqueness of the United States in no way implied that Americans were to be saviours. On the contrary, the creed of American exceptionalism is [l]iberty at home, period. Indeed, the aim of American exceptionalism is to protect the republic's foundational vision from alien infringements. Accordingly, the second principle of exceptionalism is an avoidance of the insidious wiles of foreign influence.A derivative of exceptionalism, the unilateralist tradition, compels the United States to act alone in defence of its liberties and national interests. Often confused with isolationism when it has manifested itself in American foreign policy, unilateralism is not equivalent to disinterest in international politics. Instead, unilateralism demands only that the United States be free of entangling alliances. …

THE CRIME OF AGGRESSION AND THE COMPLEMENTARITY IMPERATIVE The foundation of the international criminal justice system dominated by the International Criminal Court is the notion that states, and not the ICC, should take on the primary responsibility to investigate and prosecute cases of genocide, crimes against humanity and war crimes. The ICC should in principle only step in when states are unwilling or unable to deal with the matter at hand. This is known as the principle of complementarity. Needless to say, not all states are party to the ICC. However, other enforcement regimes beyond the Rome Statute of the ICC, for instance the UN Torture Convention, the Genocide Convention and the Geneva Conventions provide for an enforcement regime based on the domestication of crimes under international law and the concomitant possibility to enforce international criminal law at the national level. The Kampala Resolution on the Crime of Aggression adopted by the Assembly of States Parties expresses the sentiment that the crime of aggression, unlike the other core crimes, should rather not be prosecuted at the national level. There is no prohibition of national prosecutions. But there is a strong hint that there should not be any progressive domestication of the crime of aggression. Understandings 4 and 5 regarding the amendments to the Rome Statute on the crime of aggression provide that the amendments to the Rome Statute are adopted for purposes of the Rome Statute only, and not to be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than the Rome Statute. It is further understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another state. The latter Understanding is actually superfluous. The Rome Statute does not create a duty on the part of states parties to criminalise the core crimes under their domestic law. Of course, there is a duty on states parties to cooperate with the ICC, but there is no duty with respect to the implementation at national level of substantive international criminal law, safe for the modification of crimes against the administration of justice, thus including the ICC administration of justice as duly protected under domestic law as well.

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).

Institutions enforcing international criminal law are often mentioned in the same breath as ‘global justice’. For instance, the first Prosecutor of the International Criminal Court (ICC) has referred to the Rome Statute as a ‘global justice system’.1 Luis Moreno-Ocampo himself was awarded an ‘International Humanitarian Award for Advancing Global Justice’2 and has written pieces titled ‘The International Criminal Court: Seeking Global Justice’.3 A flyer that encourages people to apply for an internship position at the ICC reads: ‘Can your skills promote lasting, global justice?’4 According to the ICC website, ‘International Criminal Justice Day… commemorates the landmark steps that the international community is taking to reach the common goal of global justice’.5 At the ‘Groundbreaking Ceremony’ for the permanent premises of the ICC the Court’s President stated that the building ‘will stand as a permanent symbol of global justice’.6 On another occasion, he expressed his appreciation for a state party on the ground that it was one of the Court’s ‘strongest supporters in pursuing our common goal of global justice’.7 Senior international civil servants, too, have expressed their support for international criminal justice by associating it with global justice. The Secretary-General of the United Nations, for instance, has called the ICC ‘the keystone of a growing system of global justice’.8 States, too, have equated the ICC with ‘global justice’. The Ugandan government referred the ‘situation concerning the Lord’s Resistance Army’ to the ICC, stating that it turned ‘to the newly established International Criminal Court and its promise of global justice’.9 When the Seychelles ratified the Rome Statute, Mexico, as Vice-President of the Assembly of States Parties, said this demonstrated the archipelago’s ‘determination to achieve global justice’.10 News outlets, in turn, have reported that ‘the Obama administration is shifting U.S. policy on global justice by beginning to provide assistance to the ICC’.11 International criminal lawyers have written books with titles like Crimes against Humanity: The Struggle for Global Justice.12 And the blog of the Coalition for the International Criminal Court is called: ‘#GlobalJustice’.13