Non-extradition pact with the US would be in contravention of SaM’S International obligations

The Belgrade Centre for Human Rights calls on the authorities of Serbia and Montenegro (SaM) not to sign a Non-Extradition Pact the US has been offering states signatories of the Rome Statute to exclude US citizens from the jurisdiction of the permanent International Criminal Court (ICC). The Pact would undermine the purpose for which the ICC was established and would be in contravention of the international obligations SaM has assumed. SaM (FRY) became a member of the ICC on July 2001. EU member states refused to sign such pacts back in September 2002. At the time, the EU also established the main principles member states ought to abide by if they nevertheless decide to enter negotiations on the pact with the USA.

Given that the Vienna Convention on the Law of Treaties binds states to refrain from acts which would defeat the object and purpose of a treaty they had signed, contracting parties to the Rome Statute would violate the object of the agreement – the establishing of individual criminal responsibility for international crimes – by agreeing to sign the non-extradition pact offered by the US. Moreover, the contracting states would thus also defeat the purpose of the Rome Statute – that a permanent international court adjudicate persons suspected of having committed the gravest crimes and monitor trials before the national courts of the contracting states.

SaM’s international status and US pressures may lead our state to enter talks on the pact with the USA. In the event the authorities opt for talks with the US, the Belgrade Centre for Human Rights calls on them to abide by the principles established by the EU to at least ensure minimal guarantees for the respect of the object and purpose of the Rome Statute.

The SaM authorities would have to include the following principles in a non-extradition pact with the US:

1. Given that agreements may not promote impunity, the US must bind itself to adjudicate all those suspected of having committed gross international crimes in the binding provisions of the pact;
2. The pact may not regard all US citizens, but only soldiers and holders of diplomatic immunity;
3. The validity of the pact ought to be limited to a maximum of three years;
4. The principle of reciprocity may not be included in the pact, i.e. non-extradition cannot apply to SaM citizens. If it is, our country will have violated the provisions of the Rome Statute;
5. Finally, such a pact may not come into force prior to ratification in the SaM Parliament.

It is hypocritical of the US, which clearly insists on cooperation with an ad hoc international court, such as the ICTY, to undermine the attempts to establish a permanent international criminal court. SaM experts are aware of the country’s obligation to cooperate with the ICTY, which arises from its UN membership. By ratifying the Rome Statute, SaM has also assumed the obligation to cooperate with the permanent International Criminal Court, and, specifically, to arrest and extradite persons wanted by the ICC.