"РИМСКИЙ СТАТУТ МЕЖДУНАРОДНОГО УГОЛОВНОГО СУДА" [рус., англ.] (Вместе с "ПОСОБИЕМ ДЛЯ РАТИФИКАЦИИ И ИМПЛЕМЕНТАЦИИ...") (Принят в г. Риме 17.07.1998 Дипломатической конференцией полномочных представителей под эгидой ООН по учреждению Международного уголовного суда)

ding State to surrender a person of that State to the Court. This situation may arise where a person in the custody of the requested State was extradited to that State from another State upon the condition of being returned after the investigation or prosecution or the execution of a sentence. It may also arise where, under a Status of Forces agreement, members of the armed forces of a third State are present on the territory of a requested State. Where the sending State is a Party to the Rome Statute, it should not place any restrictions on the ability of other States to surrender its nationals to the ICC, since every State Party accepts the jurisdiction of the Court over its nationals and there are no grounds for refusing to surrender a person to the Court. However, where a person being sought for surrender makes a ne bis in idem claim and the relevant admissibility ruling by the ICC is still pending, the requested State should consult with both the sending State and the Court, in accordance with article 89 (2), to see if execution of the request should be postponed. Otherwise, the requested State should never need to obtain the consent of a sending State Party, in order to surrender the State Party's national to the ICC. The other exception is where the Court is able to obtain the consent of the sending State. The Court must obtain the co-operation of the sending State, if it is not a State Party, before the Court can make the request for surrender.
Article 98 is relevant only where the requested State can demonstrate that the action sought by the Court would place it in violation of an obligation under international law. A State cannot invoke a provision under its national laws which grants a person immunity from surrender.

Obligations

a) A State Party has the obligation to surrender a person enjoying diplomatic immunity, when the Court requests this surrender after it obtained the co-operation of the third State for the waiver of the immunity (article 98 (1)).
b) When the Court requests the surrender of a person, but the requested State Party usually could not surrender that person without breaching an international agreement with a third State, the requested State Party has the obligation to surrender if the Court has obtained the consent of the third State for the surrender of the person (article 98 (2)). The requested State Party may also be required to surrender the person where the third State is a State Party.

Implementation

States Parties should provide in their national legislation, the possibility of surrendering a person to the ICC who would normally enjoy State or diplomatic immunity, when the State that this person is from agrees to the waiver of his or her immunity. Because the ICC has the authority to determine whether or not immunities exist, States would be wise to specify simply that immunities will not bar co-operation with the ICC. This ensures that the State Party will be able to meet its obligation to surrender. States Parties should also ensure that their nationals can be surrendered to the ICC by other States, where appropriate, and that there are no bilateral or multilateral agreements hindering this process. States Parties should be prepared to disclose to the Court any relevant international obligations and agreements that may conflict with a request for surrender that the Court is preparing, if the Court needs this information.

3.7 Possible Constitutional Issues Relating to Surrender

Some of the provisions of the Statute may appear to conflict with constitutional requirements in some States, particularly those relating to surrender of a person to a tribunal outside of the State. When assessing the potential impact of the Statute on a State's constitution, it is important to keep in mind the values that the ICC seeks to uphold, namely, justice and an en



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