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International Criminal Law – How and When Must States Co-operate with the ICC, and What Legal Limits Apply?
1. Overview: Co-operation with the ICC in International Criminal Law
Under international criminal law (ICL), the International Criminal Court (ICC) does not operate in a vacuum. It relies on States to arrest suspects, hand over evidence, protect witnesses, and enforce sentences.
This co-operation framework is built:
So:
Importantly, States Parties’ obligations cannot lawfully be interpreted to diminish the rights of third States, including their immunities and treaty rights.
2. General Obligation to Co-operate (Article 86 & Article 87)
Article 86 of the Rome Statute lays down the basic rule:
States Parties must fully co-operate with the Court in its investigations and prosecutions of crimes within its jurisdiction, in accordance with the Statute.
This broad duty is unpacked in Part 9 of the Statute (Articles 86–102), which covers:
Under Article 87(1), the ICC may formally request co-operation from States Parties. If a State Party fails to comply in a way that prevents the Court from functioning, Article 87(7) allows the Court to:
For non-States Parties, Article 87(5) says the Court may invite them to assist. If a non-party agrees but then fails to co-operate, that failure can also be reported to the ASP or Security Council.
The Court may also ask intergovernmental organisations for documents and other assistance (Article 87(6)).
3. Arrest and Surrender (Article 89 & Article 58(4))
The core practical question is: how does the ICC actually get custody of suspects?
However:
So, there is a sequence:
4. Competing Requests: ICC vs Extradition (Article 90)
Sometimes, a State receives two conflicting requests:
Article 90 deals with this:
The Statute distinguishes “surrender” (to the ICC) and “extradition” (State-to-State) in Article 102.
5. Other Forms of Assistance (Article 93) and National Security
Not all co-operation is about arresting people. Article 93 covers other types of assistance, such as:
States Parties must provide such assistance unless an exception applies.
The main general exception:
Where practical problems exist (e.g. conflict with another treaty), Article 97 requires the State to consult with the Court to try to resolve the issue.
6. Security Council–Imposed Co-operation on Non-Parties
Although the Rome Statute itself cannot bind non-States Parties, the UN Security Council (acting under Chapter VII) can require UN member States to co-operate with the ICC in particular situations.
Example: Darfur (Sudan) – Resolution 1593 (2005)
However:
7. Article 98: Limits on the Court’s Ability to Request Surrender or Assistance
Article 98 is crucial. It limits what the ICC may lawfully request from States when co-operation would force them to breach other international obligations.
It has two main parts:
Both provisions restrain the Court:
The ICC “may not proceed” with a request that would cause a State to violate its international obligations, unless the Court first obtains the relevant waiver or consent.
The logic: States Parties are only obliged to comply with lawful requests under the Statute.
7.1 Article 98(1): Immunities of Third States
Article 98(1) says the Court may not proceed with a request that would require a State to act inconsistently with its obligations regarding:
Unless the Court first obtains a waiver of immunity from that third State.
Key points:
Thus, immunity does not bar the ICC’s jurisdiction once the person is before the Court, but it may block the path of surrender from a State Party when a third State’s official is involved.
7.2 The Al Bashir Controversy (Article 98(1) in Practice)
The long saga of Omar Al Bashir, former President of Sudan (a non-party), raised intense disputes:
The ICC’s Pre-Trial Chamber tried different legal justifications over time, including:
Many scholars argue these lines of reasoning are legally fragile and effectively empty Article 98(1) of content, while the AU insists that:
This remains one of the most contested areas of ICC co-operation law.
7.3 Article 98(2): “Sending State” Agreements (SOFAs, SOMAs & “Article 98 Agreements”)
Article 98(2) prevents the ICC from proceeding with a surrender request where:
Originally, this was aimed at:
Unlike Article 98(1), Article 98(2) can apply to agreements involving:
“Article 98 Agreements” with the US
The United States engaged in a campaign to conclude bilateral “non-surrender” agreements (often called “Article 98 agreements”) with many States, including Rome Statute Parties. Typically, they provide that:
Legal issues:
These persons cannot realistically be seen as “sent” by the State, meaning Article 98(2) may not protect that agreement when the ICC requests surrender.
So if the ICC requests surrender of, say, a US tourist accused of genocide, and a State Party refuses solely because of a broad “Article 98” agreement, that refusal can constitute a breach of Article 89(1).
European institutions and others have suggested that:
The bottom line:
The concept of Article 98(2) agreements is not inherently unlawful, but overbroad drafting and reliance can lead to States Parties breaching their Rome Statute obligations if they refuse surrender in situations not truly covered by 98(2).
8. Ten Case Scenarios – Solutions and Critical Analysis
Scenario 1: State Party Ignores ICC Arrest Request for a Rebel Commander
A rebel leader indicted by the ICC travels to a State Party. The ICC has issued an arrest warrant and transmits a formal request under Article 89(1). The State Party refuses to arrest him, citing “regional stability” concerns.
Solution:
Critical analysis:
Shows the tension between political considerations and legal obligations. The ICC has no police force, so enforcement depends on political pressure and reputational costs.
Scenario 2: Non-State Party Declines ICC Arrest Request
The ICC sends an arrest and surrender request to a non-party State where a suspect is visiting. The State refuses, saying it’s not bound by the Rome Statute.
Solution:
Critical analysis:
Highlights the structural weakness of treaty-based courts: universality is limited to those who join or are bound by the Security Council.
Scenario 3: Competing ICC and Extradition Requests from a State Party
A State Party receives:
Solution:
Critical analysis:
Protects the ICC from being sidelined when States Parties attempt to “pull” suspects into their own jurisdiction to shield them or avoid genuine prosecution.
Scenario 4: Competing ICC Request and Third-State Extradition Treaty
A State Party receives:
Solution:
Critical analysis:
Exposes a grey area where bilateral treaty obligations can dilute the ICC’s effectiveness, especially where the non-party State has a poor record of accountability.
Scenario 5: Refusal of Evidence on National Security Grounds
The ICC asks a State Party for satellite imagery and internal intelligence reports about alleged war crimes. The State refuses, citing national security.
Solution:
Critical analysis:
Strikes a balance between State sovereignty and truth-seeking. Abuse of “national security” could, however, be used to shield perpetrators.
Scenario 6: Security Council–Imposed Co-operation on a Non-Party
The Security Council refers Country X (a non-party) to the ICC and decides Country X “shall co-operate fully”. X refuses to hand over officials.
Solution:
Critical analysis:
Reveals how politics at the Security Council heavily shapes ICC enforcement. Powerful States hold vetoes, affecting which situations are referred or acted upon.
Scenario 7: Visiting Head of State of a Non-Party in a State Party (Article 98(1))
The President of State Y (a non-party) visits State Z (a State Party). The ICC has an arrest warrant out for the President. ICC requests State Z to arrest and surrender him.
Solution:
Critical analysis:
This is exactly the Al Bashir–type controversy. The ICC’s attempts to sidestep Article 98(1) risk undermining legal certainty and provoking political backlash (as seen with the AU).
Scenario 8: NATO Troop Covered by a SOFA (Article 98(2))
A soldier from State A (NATO member, non-party to the Rome Statute) is stationed in State B (a State Party) under a SOFA. The ICC requests surrender of this soldier for alleged war crimes.
Solution:
Critical analysis:
Legitimate application of Article 98(2): it protects pre-agreed deployment arrangements while still allowing ICC action where the sending State agrees (or can be pressured to agree).
Scenario 9: “Article 98 Agreement” and a US Tourist
A State Party has a broad “Article 98” agreement with the US covering all US nationals. The ICC requests surrender of a US tourist accused of crimes against humanity. The US refuses consent. The State Party declines to surrender, citing the agreement.
Solution:
Critical analysis:
Illustrates the overreach problem with some US “Article 98” agreements. They are compatible with ICL only if interpreted narrowly to cover genuine sending-State personnel.
Scenario 10: Subpoena of a Reluctant Witness
A key witness, living in a State Party, refuses to testify. The ICC issues a subpoena under Article 64(6)(b), ordering him to appear.
Solution:
Critical analysis:
Shows that co-operation is not only about suspects: the ICC also relies on States to ensure witness participation, which is vital for fair and effective trials.
9. Overall Critical Reflection
The ICC’s co-operation regime is:
International criminal law here sits at the crossroads of law and politics: its success relies not only on legal rules, but also on whether States are willing to put justice above short-term strategic interests.
1. Overview: Co-operation with the ICC in International Criminal Law
Under international criminal law (ICL), the International Criminal Court (ICC) does not operate in a vacuum. It relies on States to arrest suspects, hand over evidence, protect witnesses, and enforce sentences.
This co-operation framework is built:
- by treaty – primarily the Rome Statute, not under UN Charter Chapter VII (except where the Security Council steps in);
- on the principle of pacta tertiis – treaties do not bind third States without their consent.
So:
- States Parties to the Rome Statute have clear legal obligations to co-operate with the ICC.
- Non-States Parties are not generally bound by the Statute’s co-operation regime, unless:
- they accept co-operation duties voluntarily (e.g. special agreements), or
- the UN Security Council imposes co-operation duties under Chapter VII.
Importantly, States Parties’ obligations cannot lawfully be interpreted to diminish the rights of third States, including their immunities and treaty rights.
2. General Obligation to Co-operate (Article 86 & Article 87)
Article 86 of the Rome Statute lays down the basic rule:
States Parties must fully co-operate with the Court in its investigations and prosecutions of crimes within its jurisdiction, in accordance with the Statute.
This broad duty is unpacked in Part 9 of the Statute (Articles 86–102), which covers:
- Requests for co-operation
- Arrest and surrender
- Other forms of assistance
- Consultations and conflicts of obligations
- Immunities and existing international agreements (Article 98)
Under Article 87(1), the ICC may formally request co-operation from States Parties. If a State Party fails to comply in a way that prevents the Court from functioning, Article 87(7) allows the Court to:
- make a formal finding of non-co-operation, and
- refer the matter to:
- the Assembly of States Parties (ASP), or
- the UN Security Council, if the situation was referred by the Council.
For non-States Parties, Article 87(5) says the Court may invite them to assist. If a non-party agrees but then fails to co-operate, that failure can also be reported to the ASP or Security Council.
The Court may also ask intergovernmental organisations for documents and other assistance (Article 87(6)).
3. Arrest and Surrender (Article 89 & Article 58(4))
The core practical question is: how does the ICC actually get custody of suspects?
- Article 89(1):
However:
- Only States Parties are obliged (by the Statute) to comply with such a request.
- Non-parties may do so voluntarily or under other obligations (e.g. a Security Council resolution).
- Article 58(4) clarifies that an ICC arrest warrant alone does not automatically oblige a State to arrest someone.
So, there is a sequence:
- ICC issues arrest warrant
- ICC sends a request for arrest and surrender to a State
- State Party is then bound to act (subject to other provisions like Article 98).
4. Competing Requests: ICC vs Extradition (Article 90)
Sometimes, a State receives two conflicting requests:
- one from the ICC to surrender a person, and
- one from another State to extradite that same person, often for the same conduct.
Article 90 deals with this:
- If the requesting State is a State Party, and the ICC has found the case admissible, the ICC request must take priority.
- If the requesting State is not a party:
- If there is no existing extradition obligation, the ICC request should prevail.
- If there is an “existing international obligation” to extradite (e.g. a bilateral treaty), the requested State must weigh factors, including:
- dates of the requests
- interests of the requesting State (e.g. crime on its territory; nationality of victims or suspect)
- possibility of later surrender from that State to the ICC
The Statute distinguishes “surrender” (to the ICC) and “extradition” (State-to-State) in Article 102.
5. Other Forms of Assistance (Article 93) and National Security
Not all co-operation is about arresting people. Article 93 covers other types of assistance, such as:
- identifying persons
- collecting and transmitting evidence
- questioning suspects or witnesses
- tracing and freezing assets
- and a “catch-all” clause (Art 93(1)(l)) for any other assistance not prohibited by the requested State’s law.
States Parties must provide such assistance unless an exception applies.
The main general exception:
- National security (Article 93(4) read with Article 72):
Where practical problems exist (e.g. conflict with another treaty), Article 97 requires the State to consult with the Court to try to resolve the issue.
6. Security Council–Imposed Co-operation on Non-Parties
Although the Rome Statute itself cannot bind non-States Parties, the UN Security Council (acting under Chapter VII) can require UN member States to co-operate with the ICC in particular situations.
Example: Darfur (Sudan) – Resolution 1593 (2005)
- The Security Council decided that Sudan, although not a party to the Rome Statute, “shall co-operate fully” with the Court.
- This obligation flows from the UN Charter (Article 25 & 103), not from the Rome Statute.
- Such Charter-based obligations override conflicting treaty obligations of the State.
However:
- This does not magically turn Sudan into a “State Party”.
- The ICC cannot claim that Article 87(7) applies to Sudan as if it were a State Party.
- Instead, the Court has an inherent power to inform the Security Council if a non-party fails to comply, so the Council may decide on political or enforcement measures.
7. Article 98: Limits on the Court’s Ability to Request Surrender or Assistance
Article 98 is crucial. It limits what the ICC may lawfully request from States when co-operation would force them to breach other international obligations.
It has two main parts:
- Article 98(1) – Immunities of third States’ officials and property
- Article 98(2) – Existing international agreements requiring sending State consent
Both provisions restrain the Court:
The ICC “may not proceed” with a request that would cause a State to violate its international obligations, unless the Court first obtains the relevant waiver or consent.
The logic: States Parties are only obliged to comply with lawful requests under the Statute.
7.1 Article 98(1): Immunities of Third States
Article 98(1) says the Court may not proceed with a request that would require a State to act inconsistently with its obligations regarding:
- State immunity
- Diplomatic immunity of a person or property of a third State (i.e. a State not party to the Rome Statute)
Unless the Court first obtains a waiver of immunity from that third State.
Key points:
- It clearly covers heads of State, heads of government, foreign ministers, etc. (immunity ratione personae).
- It is only about third States (non-States Parties).
- Between States Parties, those immunities are considered waived by their consent to the Statute (Article 27 + 89(1)).
- It does not apply to immunities of international organisation officials; it’s about States.
Thus, immunity does not bar the ICC’s jurisdiction once the person is before the Court, but it may block the path of surrender from a State Party when a third State’s official is involved.
7.2 The Al Bashir Controversy (Article 98(1) in Practice)
The long saga of Omar Al Bashir, former President of Sudan (a non-party), raised intense disputes:
- ICC issued arrest warrants for Al Bashir (2009, 2010).
- It requested multiple States Parties (e.g. Kenya, Chad, South Africa, DRC) to arrest and surrender him when he travelled there.
- The African Union (AU) repeatedly instructed its members not to co-operate in his arrest, invoking Article 98(1) and head-of-State immunity.
The ICC’s Pre-Trial Chamber tried different legal justifications over time, including:
- Arguing that customary international law removes immunities before international courts → so no conflict with Article 98(1).
- Later arguing that Security Council Resolution 1593 implicitly waived Sudan’s immunities, making Article 98(1) inapplicable.
Many scholars argue these lines of reasoning are legally fragile and effectively empty Article 98(1) of content, while the AU insists that:
- Article 98 was deliberately inserted to protect third-State immunities, and
- the Security Council did not expressly waive Sudan’s immunities.
This remains one of the most contested areas of ICC co-operation law.
7.3 Article 98(2): “Sending State” Agreements (SOFAs, SOMAs & “Article 98 Agreements”)
Article 98(2) prevents the ICC from proceeding with a surrender request where:
- the requested State has an international agreement requiring the sending State’s consent before its personnel can be surrendered to the ICC,
- unless the ICC first obtains that sending State’s consent.
Originally, this was aimed at:
- Status of Forces Agreements (SOFAs)
- Status of Mission Agreements (SOMAs)
- similar agreements where a State deploys forces or officials abroad.
Unlike Article 98(1), Article 98(2) can apply to agreements involving:
- States Parties with non-States Parties, and
- even States Parties with other States Parties.
“Article 98 Agreements” with the US
The United States engaged in a campaign to conclude bilateral “non-surrender” agreements (often called “Article 98 agreements”) with many States, including Rome Statute Parties. Typically, they provide that:
- persons (current or former officials, employees, military, or nationals) of one Party present in the other’s territory
- shall not be surrendered to the ICC without that Party’s consent.
Legal issues:
- To the extent such agreements cover genuine “sent” personnel (troops, mission staff), they fall quite neatly within Article 98(2).
- But many of these agreements also cover:
- tourists
- businesspeople
- private contractors unconnected with a mission
These persons cannot realistically be seen as “sent” by the State, meaning Article 98(2) may not protect that agreement when the ICC requests surrender.
So if the ICC requests surrender of, say, a US tourist accused of genocide, and a State Party refuses solely because of a broad “Article 98” agreement, that refusal can constitute a breach of Article 89(1).
European institutions and others have suggested that:
- Such agreements should be interpreted narrowly, limited to proper “sending State” personnel, to avoid conflict with the Rome Statute.
The bottom line:
The concept of Article 98(2) agreements is not inherently unlawful, but overbroad drafting and reliance can lead to States Parties breaching their Rome Statute obligations if they refuse surrender in situations not truly covered by 98(2).
8. Ten Case Scenarios – Solutions and Critical Analysis
Scenario 1: State Party Ignores ICC Arrest Request for a Rebel Commander
A rebel leader indicted by the ICC travels to a State Party. The ICC has issued an arrest warrant and transmits a formal request under Article 89(1). The State Party refuses to arrest him, citing “regional stability” concerns.
Solution:
- The State Party is in breach of Article 89(1) and Article 86.
- The Court may make a finding of non-co-operation under Article 87(7) and refer the matter to the ASP (and possibly the Security Council if relevant).
Critical analysis:
Shows the tension between political considerations and legal obligations. The ICC has no police force, so enforcement depends on political pressure and reputational costs.
Scenario 2: Non-State Party Declines ICC Arrest Request
The ICC sends an arrest and surrender request to a non-party State where a suspect is visiting. The State refuses, saying it’s not bound by the Rome Statute.
Solution:
- Legally correct: the Statute does not oblige non-Parties to co-operate.
- Co-operation would require:
- a special agreement, or
- a Security Council Chapter VII resolution binding that State.
Critical analysis:
Highlights the structural weakness of treaty-based courts: universality is limited to those who join or are bound by the Security Council.
Scenario 3: Competing ICC and Extradition Requests from a State Party
A State Party receives:
- an ICC request for surrender, and
- an extradition request from another State Party for the same acts.
Solution:
- If the ICC has found the case admissible, the requested State must prioritise the ICC under Article 90(2)–(3).
Critical analysis:
Protects the ICC from being sidelined when States Parties attempt to “pull” suspects into their own jurisdiction to shield them or avoid genuine prosecution.
Scenario 4: Competing ICC Request and Third-State Extradition Treaty
A State Party receives:
- an ICC request for surrender, and
- an extradition request from a non-party with whom it has an extradition treaty.
Solution:
- Under Article 90(6), the State must weigh:
- dates of requests,
- interests of the requesting State (territory, victims’ nationality, suspect’s nationality),
- possibility of later surrender from that State to the ICC.
- It may choose to honour the extradition request, but risks undermining ICL if that State is unlikely to prosecute genuinely.
Critical analysis:
Exposes a grey area where bilateral treaty obligations can dilute the ICC’s effectiveness, especially where the non-party State has a poor record of accountability.
Scenario 5: Refusal of Evidence on National Security Grounds
The ICC asks a State Party for satellite imagery and internal intelligence reports about alleged war crimes. The State refuses, citing national security.
Solution:
- Under Articles 72 & 93(4), this is a recognised exception.
- The State should consult with the ICC to explore:
- redaction,
- summaries,
- in camera procedures,
- or other protective measures.
Critical analysis:
Strikes a balance between State sovereignty and truth-seeking. Abuse of “national security” could, however, be used to shield perpetrators.
Scenario 6: Security Council–Imposed Co-operation on a Non-Party
The Security Council refers Country X (a non-party) to the ICC and decides Country X “shall co-operate fully”. X refuses to hand over officials.
Solution:
- Country X is in breach of the UN Charter, not the Rome Statute.
- The ICC may inform the Council, which can:
- impose sanctions,
- authorise measures under Chapter VII.
Critical analysis:
Reveals how politics at the Security Council heavily shapes ICC enforcement. Powerful States hold vetoes, affecting which situations are referred or acted upon.
Scenario 7: Visiting Head of State of a Non-Party in a State Party (Article 98(1))
The President of State Y (a non-party) visits State Z (a State Party). The ICC has an arrest warrant out for the President. ICC requests State Z to arrest and surrender him.
Solution:
- Article 98(1) applies: State Z would breach its obligations towards State Y (head-of-State immunity) if it complied, unless the ICC has first secured a waiver of immunity from State Y.
- If no waiver is obtained, the ICC arguably should not have proceeded with such a request.
Critical analysis:
This is exactly the Al Bashir–type controversy. The ICC’s attempts to sidestep Article 98(1) risk undermining legal certainty and provoking political backlash (as seen with the AU).
Scenario 8: NATO Troop Covered by a SOFA (Article 98(2))
A soldier from State A (NATO member, non-party to the Rome Statute) is stationed in State B (a State Party) under a SOFA. The ICC requests surrender of this soldier for alleged war crimes.
Solution:
- If the SOFA requires State A’s consent to surrender its personnel, Article 98(2) prevents the ICC from proceeding unless it first obtains that consent.
- Without consent, State B is not obliged to surrender the soldier.
Critical analysis:
Legitimate application of Article 98(2): it protects pre-agreed deployment arrangements while still allowing ICC action where the sending State agrees (or can be pressured to agree).
Scenario 9: “Article 98 Agreement” and a US Tourist
A State Party has a broad “Article 98” agreement with the US covering all US nationals. The ICC requests surrender of a US tourist accused of crimes against humanity. The US refuses consent. The State Party declines to surrender, citing the agreement.
Solution:
- The tourist is not a “sent” person in the SOFA/SOMA sense; Article 98(2) does not truly apply.
- The ICC’s request is lawful under the Statute; the State Party is bound by Article 89(1).
- Refusal to surrender is likely a breach of its Rome Statute obligations.
Critical analysis:
Illustrates the overreach problem with some US “Article 98” agreements. They are compatible with ICL only if interpreted narrowly to cover genuine sending-State personnel.
Scenario 10: Subpoena of a Reluctant Witness
A key witness, living in a State Party, refuses to testify. The ICC issues a subpoena under Article 64(6)(b), ordering him to appear.
Solution:
- The State Party must use its domestic law to enforce the subpoena, potentially imposing penalties for non-compliance.
Critical analysis:
Shows that co-operation is not only about suspects: the ICC also relies on States to ensure witness participation, which is vital for fair and effective trials.
9. Overall Critical Reflection
The ICC’s co-operation regime is:
- Ambitious – it creates broad duties to arrest, surrender, and assist.
- Fragile – it depends on political will, Security Council dynamics, and how States interpret Articles 98 and 90.
- Legally complex – especially where immunities, existing treaties, and “Article 98 agreements” come into play.
International criminal law here sits at the crossroads of law and politics: its success relies not only on legal rules, but also on whether States are willing to put justice above short-term strategic interests.
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