414
i n t e r nat i o na l l aw
or proceeded with for a period of twelve months after the Security Coun-
cil, in a resolution adopted under Chapter VII of the Charter, has so
requested the Court. Such request may be renewed by the Council un-
der the same conditions.
94
Article 98(2) provides that the Court may not
proceed with a request for surrender which would require the requested
state to act inconsistently with its obligations under international agree-
ments 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 co-operation of the sending state for the giving of consent for
the surrender. The provision, which was intended to deal with conflict-
ing obligations, such as the position of soldiers stationed overseas under
Status of Forces agreements which allow the sending state to exercise el-
ements of criminal jurisdiction with regard to its soldiers, has been used
by the US for a much broader purpose. The US has signed a number of
bilateral agreements with states, some parties to the Rome Statute and
some not, which provide that no nationals, current or former officials,
or military personnel of either party may be surrendered or transferred
by the other state to the ICC for any purpose. This tactic has been widely
criticised and is highly controversial.
95
A key feature of the ICC, and one that distinguished it from the two
international criminal tribunals, is that it is founded upon the concept of
complementarity, which means essentially that the national courts have
priority. A case will be inadmissible and the Court will be unable to ex-
ercise jurisdiction in a number of situations.
96
These are, first, where the
case is being investigated or prosecuted by a state which has jurisdiction
over it, unless the state is unwilling or unable genuinely to carry out the
94
See Security Council resolution 1422 (2002) calling for the ICC to defer any exercise
of jurisdiction for twelve months if a case arises involving current or former officials or
personnel from a contributing state not a party to the Rome Statute over acts or omissions
relating to a UN established or authorised operation. This was renewed for a further twelve
months in resolution 1487 (2003), but not subsequently: see e.g. D. McGoldrick, ‘Political
and Legal Responses to the ICC’ in McGoldrick
et al. The Permanent International Criminal
Court
, p. 415. However, resolutions 1497 (2003) and 1593 (2005) provide that personnel
from a state not a party to the Rome Statute will be subject to the exclusive jurisdiction of
that state for all acts related to the multinational force or UN force in Liberia and Darfur
respectively: see Cryer
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