'Article 98' Agreements, The Law of Treaties & The Law of State Responsibility
in Szabó (ed.), State Responsibility andthe Law of Treaties (The Hague: Eleven Publishing, 2010) 35–54
13 Pages Posted: 3 Dec 2019 Last revised: 14 Dec 2019
Date Written: 2010
Abstract
The US has concluded with over one hundred states, many of them states parties or signatories to the Rome Statute of the International Criminal Court, what are technically referred to as bilateral non-surrender agreements but better known as ‘article 98’ agreements, after the provision of the Rome Statute on which they purport to rely for their effect. The aim of these agreements is to prevent the appearance before the ICC of any US national or, insofar as he or she is not a US national, any US official, employee or service person. The lawfulness of a state party to the Rome Statute’s envisaged non-surrender of a suspect to the ICC pursuant to an ‘article 98’ agreement with the US is challenged by scholars. So too is the legality of a state party or even signatory’s mere entry into such an agreement. It has even been alleged that the US is acting internationally unlawfully by encouraging states parties and signatories to agree to non-surrender. The legal assessment of these arguments which the article undertakes implicates a range of issues under the law of treaties and the law of state responsibility respectively and raises questions as to their interaction or lack thereof.
Keywords: international responsibility, article 98 agreements
JEL Classification: K33
Suggested Citation: Suggested Citation