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The International Criminal Court - A Commentary on the Rome Statute by Schabas, William A. (2010-03-11)

Part 9 International Cooperation and Judicial Assistance / Coopération Internationale et Assistance Judiciaire, Art.98 Cooperation with respect to waiver of immunity and consent to surrender / Coopération en relation avec la renonciation à l’immunité et le consentement à la remise

From: The International Criminal Court: A Commentary on the Rome Statute

William A. Schabas

Subject(s):
Diplomatic immunity — Immunity from jurisdiction, waiver — Judicial assistance — International courts and tribunals, procedure — International Criminal Court (ICC)

(p. 1037) Article 98 . Cooperation with respect to waiver of immunity and consent to surrender / Coopération en relation avec la renonciation à l’immunité et le consentement à la remise

. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

. La Cour ne peut poursuivre l’exécution d’une demande de remise ou d’assistance qui contraindrait l’État requis à agir de façon incompatible avec les obligations qui lui incombent en droit international en matière d’immunité des États ou d’immunité diplomatique d’une personne ou de biens d’un État tiers, à moins d’obtenir au préalable la coopération de cet État tiers en vue de la levée de l’immunité.

. La Cour ne peut poursuivre l’exécution d’une demande de remise qui contraindrait l’État requis à agir de façon incompatible avec les obligations qui lui incombent en vertu d’accords internationaux selon lesquels le consentement de l’État d’envoi est nécessaire pour que soit remise à la Cour une personne relevant de cet État, à moins que la Cour ne puisse au préalable obtenir la coopération de l’État d’envoi pour qu’il consente à la remise.

Introductory comments

The Rome Statute has the potential to conflict with other obligations of States under international law, whether pursuant to customary international law or treaty. In particular, they are required to respect the immunities of diplomats and international officials. States that allow military activity by foreign troops on their territory often have agreements, known as ‘status of forces agreements’ (or ‘SOFAs’). Article 98 governs these conflicts by, in effect, making obligations of arrest and surrender under the Statute subordinate to other legal norms.

Article 98 has proven to be one of the most controversial provisions in the Rome Statute, but the difficulties only manifested themselves some years after its adoption. The text was devised at the Rome Conference, no equivalent appearing in the International Law Commission draft or the work of the Preparatory Committee. At the Conference itself, article 98 ‘did not absorb too much negotiation time’ and ‘was not considered to be of utmost sensitivity by most participants in the negotiations’.1 After the Statute was adopted, creative lawyers in the United States government relied upon article 98 as they developed strategies first to limit the jurisdiction of the Court through provisions in the Rules of Procedure and Evidence and, eventually, to attack the institution through a campaign to negotiate so-called ‘Bilateral Non-surrender Agreements’.

(p. 1038) Drafting of the provision

The issues addressed in article 98 did not feature in the early drafting work of the Rome Statute. In the International Law Commission, there was brief discussion of the relationship between the surrender issue and existing extradition or status of forces agreements.2 The Ad Hoc Committee acknowledged the issue of competing treaty obligations, including those under status of forces agreements.3 The provision dealing with grounds for refusal of surrender in the Preparatory Committee draft statute contained an option, in square brackets. It authorized non-compliance with a request that would put a State ‘[in breach of an existing obligation that arises from [a peremptory norm of] general international law [treaty] obligation undertaken to another State.]’, ‘[(e) compliance with the request would put it in breach of an existing obligation that arises from [a peremptory norm of] general international law [treaty] obligation undertaken to another State.]’.4 A footnote to this text said: ‘It was suggested that the following ground for refusal should be included: when the imposition or the execution of punishment for the offence for which surrender is requested would be barred by reasons prescribed under the law of the requested State if the requested State were to have jurisdiction over the offence.’5 Along similar lines, the draft provision concerning other forms of cooperation said that ‘[a] State Party may deny a request for assistance, in whole or in part, only if … compliance with the request would put it in breach of an existing [international law] [treaty] obligation undertaken to another [State] [non-State Party]’.6 Diplomatic immunities were not discussed, probably because it was assumed that they remained untouched by the Statute.

At the Rome Conference, Singapore presented the following proposal, to be included in the provision on surrender:

Where compliance with the request for surrender/cooperation would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, the Court shall, in addition, obtain under this Part the cooperation of that third State for the waiver of the immunity.7

The draft of what became article 98 emerged in the Working Group.

There is nothing in the Official Records of the Conference to assist in construing the meaning of what was to become an extremely controversial provision. Participants in the sessions have made competing claims as to what they think was intended.8 The perfunctory nature of any discussions about article 98 can be deduced from the fact that it is not even mentioned in the major account of the drafting of Part 9 of the Rome Statute.9

(p. 1039) Analysis and interpretation

Article 98 emerged in the context of the debate on grounds to refuse surrender and assistance. However, nowhere else in the Statute is it permitted for a State to refuse assistance, which it can only postpone under certain circumstances.10 It may also postpone surrender, pending an admissibility determination. Although the Statute avoids saying this explicitly, in effect it allows a State to refuse surrender of an individual if there is a competing request for extradition, subject to the limitations of article 90. More generally, there is a reference in article 89(4) to a requested State ‘making its decision to grant the request’. This makes the wording of article 98 stand out. It does not list grounds for refusal, but rather declares that the Court ‘may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations … ’.

The import of this wording is probably to require a State to contest any request if it deems that an issue under article 98 has arisen. When a requested State notifies the Court that its request for surrender or assistance raises a problem in respect of article 98, the requested State is required by the Rules of Procedure and Evidence to provide any information relevant to assist the Court in the application of article 98. The Rules also provide that ‘[a]ny concerned third State or sending State may provide additional information to assist the Court’, but such a provision does not seem to impose any real obligation.11 Thus, if the Court does proceed with a request where an article 98 issue arises, the State should apply to the Court seeking discontinuance, rather than simply defy the request. The Court is the arbiter of the application of article 98. However, some of the initiative lies with the State Party.

If it agrees that the situations described in article 98 are applicable, then the Court has the responsibility to apply to the third State for a waiver. The Court should have little difficulty obtaining a waiver where the third State is a State Party, given the obligations of cooperation incumbent upon that State by virtue of the Rome Statute. In the case of a non-party State, the Court will have to invoke other sources of legal obligation in order to obtain a waiver. Some international treaties impose obligations requiring cooperation in the repression of international crimes, for example, article VII of the Convention for the Prevention and Punishment of the Crime of Genocide.12 It is argued that if a State itself fails to investigate or prosecute a suspect over whom it has jurisdiction, then it must cooperate with others in bringing the individual to justice.13 To the extent that this is an obligation under international law, the Court may invoke it in any waiver request.

Article 98 covers two distinct concepts that are developed in distinct paragraphs. The first addresses international obligations that concern State or diplomatic immunity, while the second speaks to obligations under international agreements.

Both paragraphs of article 98 refer to the ‘person or property of a third State’. Manifestly, they do not cover the immunities that may be accorded to an international organization. This must be an oversight, because the immunities of the person or property of an international organization find considerable protection under public international law.14 (p. 1040) There is some recognition of this in the Negotiated Relationship Agreement with the United Nations.15 Because the immunity of United Nations officials, employees, and experts flows from the Charter of the United Nations itself, the Court would be wrong to proceed, and a State would be entitled to refuse to comply, with a request that would require it to violate the Charter and its derivative legislation such as the Convention on the Privileges and Immunities of the United Nations16 and the Convention on the Privileges and Immunities of the Specialized Agencies.17 The Court itself has invoked the immunity from taxation of officials of international organizations that it claims exists by virtue of customary international law.18 As a result, it seems that the Court should also decline to proceed with a request for surrender or assistance that would require the requested State to act inconsistently with its obligations under international law respecting the immunities to which international organizations are entitled.

Some States may also have negotiated immunity agreements with State-like entities and even sui generis organizations like the International Committee of the Red Cross. Such agreements are also not contemplated by article 98, but the claim that this is an oversight is a more difficult one.

State or diplomatic immunity (art. 98(1))

The Court may not proceed with a request for surrender or assistance that would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State. The reference to ‘international law’ undoubtedly includes customary international law and general principles of law, an interpretation confirmed with reference to article 98(2) and its reference to ‘international agreements’. Many States are bound by various international agreements governing State or diplomatic immunity.19 However, it is not logical to include within the scope of article 98(1) any immunity that results from treaties rather than customary law, given the text of article 98(2). If any treaty providing for immunity was subsumed within article 98(1), then there would be no need for article 98(2). Consequently, for article 98(1) to apply, it must be necessary to demonstrate that the State or diplomatic immunity exists by virtue of general international law, that is, in customary norms or general principles of law.

This provision is inapplicable to State or diplomatic immunities of the requested State itself, if that State is a party to the Statute. In addition to the wording of article 98(1), this conclusion is also confirmed by article 27(2) of the Rome Statute. Pursuant to the latter provision, States that become parties to the Statute renounce any claim they may have to State or diplomatic immunity before the Court.20 A State Party whose national was sought on the territory of another State Party could not rely upon article 98(1) as an obstacle to arrest and surrender, because in accordance with article 27(2) it would not be in a position to invoke State or diplomatic immunity under international law. Even if a contrary interpretation is adopted, there can be few if any practical consequences, (p. 1041) because the State whose national is requested is required to waive any immunity it might attempt to invoke.

The scope of the term ‘third State’ has been subject to some debate. According to Claus Kreß and Kimberly Prost, it applies to any State other than the requested State, and not simply to non-party States. They base this on the use of the expression ‘State not party to the treaty’ in other provisions of Part 9 when the intent is to refer to non-party States.21 However, if a ‘vertical’ approach to State cooperation is adopted, there may be no good reason why a State Party other than the requested State should be in a position to invoke any immunity to which it might be entitled vis-à-vis the requested State.

Thus, the scope of article 98(1) principally concerns individuals or objects of a third State that are entitled to immunity under customary international law, as well as any immunities established by treaty. If the requested State is not a party to the Statute, it is under no obligation to comply with a request from the Court in any case. But article 98(1) might still have an effect if a non-party State were ordered to cooperate with the Court pursuant to a Security Council resolution.22

Article 27 of the Rome Statute recognizes that immunities may exist under both national and international law. The text of article 98(1) makes clear that it only applies to immunities under international law. The subject of immunities under international law is complex, and cannot be adequately addressed in this Commentary.23 It features in an important ruling of the International Court of Justice, which affirms the immunity of a head of State and certain other senior officials, even when no longer in office.24 According to the International Court of Justice, the immunity is not changed or affected by the nature of the crimes, but arguments to the contrary have figured in dissenting opinions25 as well as in the academic literature.26 There is no evidence of any departure from the principle set out by the International Court of Justice in any subsequent State practice. The cases that are often cited to support progressive development of the law in this area, namely the prosecution of Jean Kambanda, Slobodan Milosevic, and Charles Taylor before ad hoc international criminal tribunals, are actually of very limited value, because the State concerned effectively waived any objection based upon immunity.

At the risk of oversimplifying the discussion, diplomats, heads of State, and certain senior officials, as well as the premises of diplomatic and similar missions, are immune to process in a State (other than their own, of course). They cannot be arrested, searched or otherwise interfered with by the authorities of the State where they are guests or to which they are accredited. Article 98(1) addresses the conflict that might arise if a State Party was requested to provide assistance with an arrest or investigation where this might impinge upon the immunity of a foreign diplomat or official, unless the Court can first obtain a waiver of the immunity from the State in whose benefit the immunity exists.

The first case in which this question has presented itself concerns the arrest warrant issued against President Omer El Bashir of Sudan on 4 March 2009. The Pre-Trial Chamber only summarily touched upon the issue of State or Head of State immunity. (p. 1042) It said that without prejudice to a further determination of the matter pursuant to article 19 of the Statute, ‘the Chamber considers that the current position of Omar Al Bashir as Head of a State which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case’.27 The Chamber said that ‘by referring the Darfur situation to the Court, pursuant to article 13(b) of the Statute, the Security Council of the United Nations has also accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole’.28 Implicitly, at least, the Pre-Trial Chamber was acting on the assumption that when the Security Council referred the situation in Darfur to the Court, it intended to lift any immunity to which Sudan might be entitled. When the Pre-Trial Chamber issued the arrest warrant, it also decided that the Registry was to prepare a request for cooperation seeking the arrest and surrender of Omar Al Bashir, to be transmitted not only to Sudan itself but to all States Parties to the Rome Statute and to all Security Council members.29 The Court appears to have considered that the President of Sudan did not benefit from any immunity at international law under the circumstances, that therefore States Parties would not find themselves confronted with conflicted obligations, and that consequently article 98(1) found no application.

Obligations under international agreements (art. 98(2))

The second paragraph of article 98 contemplates international agreements, both bilateral and multilateral. The reference to ‘sending State’ and ‘requested State’ suggests that these are agreements between States, rather than, for example, international agreements between States and inter-governmental or non-governmental organizations. The text of the provision itself offers little additional guidance for the purposes of interpretation and the travaux préparatoires, as has already been mentioned, are summary and uninformative. Much has been made of the ‘personnel recollection of those who participated’,30 but on this too there is controversy. The head of the United States delegation to the Rome Conference has written that ‘particular agreements — either already in force or that would be negotiated and ratified in the future and which established jurisdictional responsibilities for investigating and prosecuting criminal charges against certain individuals before national courts — could be used to avoid surrender of particular types of suspects to the ICC’.31 Others contend that those who drafted the provision believed it was meant to cover existing status of forces agreements, and not to allow agreements negotiated subsequently to provide a loophole that might be exploited by opponents of the Court.

Certainly, the terminology that is employed in article 98(2) is rooted in practice concerning status of forces agreements. The United States had flagged its concerns on this point as early as the Ad Hoc Committee, in 1995:

It is also critical that the rights and responsibilities of states parties to applicable Status of Forces Agreements (SOFAs) be fully preserved under the statute of the ICC, and that SOFA practice (p. 1043) be reflected in the Statute’s provision on extradition. SOFAs are international agreements, which provide for a number of reciprocal rights and responsibilities of the signatory states in respect to armed forces stationed or temporarily present in the territories of the respective signatory states. Under such agreements, the state dispatching or posting its forces in the territory of another state is identified as the ‘sending state’. The state on whose territory foreign forces are dispatched or posted is identified as the ‘receiving state’. Most SOFAs contain provisions governing the exercise of criminal jurisdiction over the armed forces stationed or posted abroad.32

The United States returned to the subject during the Preparatory Committee,33 although there is no reference to this in the various reports of the Committee or in its final draft. As discussed above with regard to the drafting history, the issue received summary treatment at best during the negotiations. Probably most States understood the concerns of the United States, and accepted without difficulty that status of forces agreements created a kind of immunity analogous to that of diplomats, and were entitled to some recognition in the Statute. That article 98(2) was perceived to be quite innocuous can be seen in the initial academic writing on the subject, most of which was informed by the recollections of participants in the Rome Conference.34

The first crisis emerged during the Preparatory Commission, when the Rules of Procedure and Evidence regarding article 98 were being drafted. Initially, there was only one paragraph in the draft, and it corresponds to Rule 195(1) in the final version.35 The United States proposed a paragraph 2, reading: ‘The Court shall proceed with a request for surrender or an acceptance of a person into the custody of the Court only in a manner consistent with international agreements applicable to the surrender of the person.’36 The provision was part of a package that also contained a declaration, to be incorporated into the relationship agreement with the United Nations, clarifying the intention of the United States, which was to cover ‘a national who acts within the overall direction of a UN Member State’.37 None of this was well received, and a rather different text was subsequently negotiated for the Rules of Procedure and Evidence: ‘The Court may not proceed with a request for the surrender of a person without the consent of a sending State if, under article 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement pursuant to which the consent of a sending State is required prior to the surrender of a person of that State to the Court.’38 (p. 1044) Its adoption by the Preparatory Commission was accompanied by a declaration: ‘It is generally understood that [Rule 195(2)] should not be interpreted as requiring or in any way calling for the negotiation of provisions in any particular international agreement by the Court or any other international organisation or State.’39 When the Rule was adopted, several States made declarations clarifying their interpretation of the provision. Some were concerned that it might modify article 98(2), while others described it as a compromise formulation compatible with the Statute.40

Beginning in 2002, the United States began negotiating ‘bilateral non-surrender agreements’ with other States who undertook not to surrender American nationals to the Court. The United States took the view that such agreements were compatible with article 98(2). On 26 September 2002, the European Parliament said such agreements were inconsistent with the Rome Statute.41 The preamble to Security Council Resolution 1593, which triggered the Situation in Darfur, Sudan, contains the following paragraph: ‘Taking note of the existence of agreements referred to in Article 98-2 of the Rome Statute … ’. These words were included at the request of the United States which, in addition to other formulations that supporters of the Court found offensive, agreed to abstain when the vote was taken rather than to veto the resolution. The American representative explained:

As is well known, in connection with our concerns about the jurisdiction of the Court and the potential for politicized prosecutions, we have concluded agreements with 99 countries — over half the States Members of this Organization — since the entry into force of the Rome Statute to protect against the possibility of transfer or surrender of United States persons to the Court. We appreciate that the resolution takes note of the existence of those agreements and will continue to pursue additional such agreements with other countries as we move forward.42

Most of the States Parties to the Rome Statute who were present during the debate acquiesced, making no comment on the reference to the Article 98(2) agreements. Denmark said it ‘would like to stress that that reference is purely factual; it is merely referring to the existence of such agreements. Thus, the reference in no way impinges on the integrity of the Rome Statute.’43 Brazil also objected, but acknowledged that the paragraph had substantive consequences, and was not merely an innocent statement of fact. ‘My delegation has difficulty in supporting a reference that not only does not favour the fight against impunity but also stresses a provision whose application has been a highly controversial issue’, said the Brazilian representative. ‘We understand that it would be a contradiction to mention, in the very text of a referral by the Council to the ICC, measures that limit the jurisdictional activity of the Court.’44

(p. 1045) American legislation imposed penalties upon States that did not agree to the bilateral surrender agreements, notably the withdrawal of certain forms of military assistance.45 Although initially successful with its diplomatic bullying campaign, when some countries called the bluff, the United States discovered that China was poised to replace whatever the United States was denying. American generals soon realized that they had shot themselves in the foot.46 Military officials began publicly challenging the campaign to promote bilateral surrender agreements. In late November 2006, President Bush waived the penalties imposed upon countries that refused to reach bilateral surrender agreements, with three exceptions: Ireland, Brazil, and Venezuela.

For a time, the issue of bilateral surrender agreements and the disputed interpretation of article 98(2) left many thinking that the United States might have found the Achilles heel of the Rome Statute. Several arguments were mustered in attempts to demonstrate that the agreements were illegal or invalid, in particular a claim that the drafters of article 98(2) only intended it to shelter status of forces agreements in existence prior to entry into force of the Rome Statute.47 As indicated above, although some negotiators may remember differently, it is difficult to reach such conclusions when the travaux préparatoires are taken as the official record of the Rome Conference, and the subsequent work in the Preparatory Commission. In any event, the crisis proved to be ephemeral. The legal consequences of the agreements were much misunderstood. They do not affect the jurisdiction of the Court at all. Their potential impact is in providing States with a reason to deny surrender or other forms of cooperation where such agreements exist and nationals of a non-party State are concerned.

Bibliography

  • Dapo Akande, ‘International Law Immunities and the International Criminal Court’, (2004) 98 AJIL 419;
  • M. Benzing, ‘U.S. Bilateral Non-Surrender Agreements and Article 98 of the Statute of the International Criminal Court: An Exercise in the Law of Treaties’, (2004) 8 Max Plank Yearbook of United Nations Law 181;
  • Dieter Fleck, ‘Are Foreign Military Personnel Exempt from International Criminal Jurisdiction under Status of Forces Agreements?’, (2003) 1 JICJ 651;
  • Paola Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’, (2009) 7 JICJ 315;
  • Yolanda Gamarra Chopo, ‘La política hostil de Estados Unidos contra la Corte Penal Internacional: los acuerdos del artículo 98 o la búsqueda de la impunidad’, (2005) 57 Revista Española de Derecho Internacional 145;
  • Chimène Keitner, ‘Crafting the International Criminal Court: Trials and Tribulations in Article 98(2)’, (2001) 6 UCLA J Int’l L & Foreign Affairs 215;
  • Frederick Harhoff and Phakiso Mochochoko, ‘International Cooperation and Judicial Assistance’, in Lee, Elements and Rules, pp. 637–670;
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  • H. van der Wilt, ‘Bilateral Agreements between the United States and States Parties to the Rome Statute: Are They Compatible with the Object and Purpose of the Statute?’, (2005) 18 LJIL 102;
  • Salvatore Zappalà , ‘The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements’, (2003) 1 JICJ 114.

Footnotes:

Claus Kreß and Kimberly Prost, ‘Article 98’, in Triffterer, Commentary, p. 1601–1619, at p. 1604.

ILC 1994 Final Report, para. 70.

Ad Hoc Committee Report, para. 203. See also: Preparatory Committee 1996 Report, Vol. I, para. 311.

Preparatory Committee Draft Statute, p. 134.

Ibid., p. 134.

Ibid., p. 145.

‘Proposal Submitted by Singapore’, UN Doc. A/CONF.83/C.1/WGIC/L7.

David J. Scheffer, ‘Article 98(2) of the Rome Statute: America’s Original Intent’, (2005) 3 JICJ 333; Claus Kreß and Kimberly Prost, ‘Article 98’, in Triffterer, Commentary, pp. 1601–1619, at pp. 1605–1606, 1616–1617.

Phakiso Mochochoko, ‘International Cooperation and Judicial Assistance’, in Lee, The Making of the Rome Statute, pp. 305–317. See also, for more summary discussions: Kimberly Prost and Angelika Schlunck, ‘Article 98’, in Otto Triffterer, ed., Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article, Baden-Baden: Nomos, 1999, pp. 1131–1133; Bert Swart, ‘The Obligation to Cooperate’, in Cassese, Rome Statute, pp. 1639–1703, at pp. 1631–1632.

10  Rome Statute, arts. 94, 95.

11  Rules of Procedure and Evidence, Rule 195(1).

12  Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277, art. VII.

13  Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Application, 19 February 2009.

14  Claus Kreß and Kimberly Prost, ‘Article 98’, in Triffterer, Commentary, pp. 1601–1619, at p. 1614.

15  See this Commentary, art. 2.

16  GA Res. 22 A (I).

17  GA Res. 179 (II).

18  The subject is discussed in this Commentary, under art. 49.

19  Vienna Convention on Diplomatic Relations, (1961) 500 UNTS 95; Convention on Special Missions, (1987) 1400 UNTS 73.

20  See this Commentary, art. 27.

21  Claus Kreß and Kimberly Prost, ‘Article 98’, in Triffterer, Commentary, pp. 1601–1619, at p. 1606.

22  UN Doc. S/RES/1593 (2005), para. 2.

23  See, e.g., Hazel Fox, The Law of State Immunity, Oxford: Oxford University Press, 2002.

24  Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), [2002] ICJ Reports 3.

25  Ibid., Dissenting Opinion of Judge Van den Wyngaert.

26  E.g., Claus Kreß and Kimberly Prost, ‘Article 98’, in Triffterer, Commentary, pp. 1601–1619, at pp. 1608–1609.

27  Bashir (ICC-02/05-01/09), Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para. 41.

28  Ibid., para. 45.

29  Ibid., p. 93.

30  Claus Kreß and Kimberly Prost, ‘Article 98’, in Triffterer, Commentary, pp. 1601–1619, at p. 1617.

31  David J. Scheffer, ‘Article 98(2) of the Rome Statute: America’s Original Intent’, (2005) 3 JICJ 333, at p. 336.

32  ‘United States Government informal comments on extradition/surrender approach of ILC draft of a statute for an international criminal court’, 14 July 1995. Discussed in: David J. Scheffer, ‘Article 98(2) of the Rome Statute: America’s Original Intent’, (2005) 3 JICJ 333, at p. 339.

33  ‘Cooperation between States and the ICC, Remarks of the US Delegation, April 8, 1996 — afternoon session’, p. 7.

34  Kimberly Prost and Angelika Schlunck, ‘Article 98’, in Otto Triffterer, ed., Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Baden-Baden: Nomos Verlagsgesellschaft, 1999, pp. 1131–1133. See also: Kimberly Prost and Claus Kreß, ‘Article 98’ in Triffterer, Commentary, pp. 1601–1619, at pp. 1604–1606.

35  ‘Discussion paper proposed by the Coordinator regarding Part 9 of the Rome Statute, concerning international cooperation and judicial assistance’, PCNICC/2000/WGRPE(9)/RT.1, p. 6. It had an ominous footnote: ‘One delegation may propose an addition to the rule related to article 98.’

36  ‘Proposal submitted by the United States of America concerning rules of procedure and evidence relating to Part 9 of the Statute (International Cooperation and Judicial Assistance)’, PCNICC/2000/WGRPE(9)/DP.4.

37  David J. Scheffer, ‘Staying the Course with the International Criminal Court’, (2002) 35 Cornell Int’l LJ 47, at pp. 78–80.

38  ‘Discussion paper proposed by the Coordinator concerning rules of procedure and evidence relating to Part 9 of the Statute (International Cooperation and Judicial Assistance)’, PCNICC/2000/WGRPE(9)/RT.2; ‘Report of the Working Group’, PCNICC/2000/WGRPE/L.14/Add.2.

39  ‘Proposed understanding in connection with rule 9.19, for incorporation into the Proceedings of the Preparatory Commission’, PCNICC/2000/WGRPE(9)/RT.3; ‘A guide to the report of the Preparatory Commission Prepared by the Secretariat’, PCNICC/2002/3, para. 9.

40  ‘Summary of statements made in plenary in connection with the adoption of the report of the Working Group on the Rules of Procedure and Evidence and the report of the Working Group on Elements of Crime’, PCNICC/2000/INF/4.

41  European Parliament resolution on the International Criminal Court (ICC), P5_TA(2002)0449, 26 September 2002.

42  UN Doc. S/PV.5158, p. 4.

43  Ibid., p. 6.

44  Ibid., p. 11.

45  Sean D. Murphy, ‘American Servicemembers’ Protection Act’, (2002) 96 AJIL 975; L.V. Faulhaber, ‘American Servicemembers’ Protection Act of 2002’, (2003) 40 Harvard J Legislation 537.

46  See, e.g., Statements by General Bantz J. Craddock, Head of United States Southern Command, before the House Armed Services Committee, 16 March 2006, and before Senate Armed Services Committee, 19 September 2006; Vice Admiral James G. Stavridis, Nominee for Commander, United States Southern Command, before Senate Armed Services Committee, 19 September 2006.

47  Otto Triffterer, ‘ “Irrelevance of Official Capacity” — Article 27 Rome Statute Undermined by Obligations under International Law or by Agreement Edward (Article 98)?’, in I. Buffard, J. Crawford, Alain Pellet and S. Wittich, eds., International Law between Universalism and Fragmentation, Festschrift in Honour of Gerhard Hafner, Leiden: Brill, 2008, pp. 571–602, at pp. 597–598.