U.S. Bilateral Non-Surrender Agreements and Article 98 of the Statute of the International Criminal Court: An Exercise in the Law of Treaties

Abstract

This contribution offers a legal analysis of the bilateral non-surrender agreements concluded by the United States in the light of the ICC Statute and general international law. In a first step, the author examines the compatibility of the agreements with the Rome Statute, in particular Article 98(2), concluding that they do not fall under the provision as their scope of application ratione personae is too broad and an interpretation of the norm according to its object and purpose reveals that only pre-existing agreements are covered. In a second stage, the validity of the agreements is examined against the backdrop of the law concerning conflicting treaties. Article 30 of the Vienna Convention of the Law of Treaties (1969) not being applicable to obligations erga omnes partes and thus to the Rome Statute, an analysis under customary international law reveals that obligations of States Parties to the Rome Statute under non-surrender agreements are valid regardless of their conflict with the Statute. As a consequence, these States Parties will be obliged ( vis-a-vis the United States) not to follow a request for surrender by the ICC and, at the same time, to comply with the request ( vis-a-vis the ICC and other States Parties). The article concludes with issues of state responsibility.