International Criminal Courts

Article 86 provides that states are under a general obligation to cooperate fully with the court in its investigation and prosecution of crimes. These obligations include the duty to ensure that there are procedures available under national law to cooperate (Article 88), to surrender accused or escaped convicted persons promptly (Article 89), and to provide a wide range of cooperation, such as locating witnesses and evidence, conducting searches and seizures, tracing and freezing assets of the accused with a view toward forfeiture, as well as other assistance not prohibited under national law (Article 93).

Article 98 is a weak point in the Statute. Article 98 (1) provides that the court may not proceed with a request for surrender where it would require the requested state to act inconsistently with respect to its obligations under international law or the diplomatic immunity of a third state, although it is a widely shared view of the drafters that states parties would not be able to assert diplomatic immunity of their nationals to defeat a request to surrender. Article 98 (2) was added at the insistence of the United States to address existing bilateral and multilateral extradition agreements and status of forces agreements (SOFAs) providing for trial of American nationals in the United States or the other states parties. It requires that the court not proceed with a request for surrender that would require a requested state to act inconsistently with its obligations under an international agreement pursuant to which the consent of a sending state is required, unless consent is obtained.

The Court will not have any prisons, but instead will rely, like the Yugoslavia and Rwanda tribunals, on states to enforce sentences. Articles 103 to 111 provide for the voluntary enforcement of sentences by states under supervision of the court, consistent with widely accepted international treaty standards. States may not modify the sentences without Court approval. Article 109 requires states parties to give effect to fines and forfeitures.