The Surrender Agreements

between the US and the ICTY

and ICTR: A Critical View
Jorge A. F. Godinho*

1. Introduction
It is well known that the provision of various forms of legal assistance by states is
essential for the functioning of international criminal justice, given that international
criminal courts lack many of the powers necessary for the efficient enforcement of
international criminal law. The focus of this article is on two international agreements
related to what is perhaps the most important form of assistance: the surrender of
suspects.
On 5 October 1994, the US and the International Criminal Tribunal for the former
Yugoslavia (ICTY) signed at The Hague an Agreement on Surrender of Persons
between the Government of the United States and the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Humani-
tarian Law in the Territory of the Former Yugoslavia.1 On 24 January 1995, at The
Hague, the US and the International Criminal Tribunal for Rwanda (ICTR) signed a
similar Agreement.2 These Agreements are between a state and an international
organization.3 From the point of view of US law, they are executive agreements4 or,

* Researcher, European University Institute, Florence (jorge.godinho噝iue.it).

1 UNTS, vol. 1911, at 224 (UNTS reg. no. 32555); TIAS. no. 12570, 1994; WL 1067624; available
online at http://www.un.org/icty/legaldoc/index.htm, article 6 omitted (visited 19 February 2003).
2 Unpublished in the UNTS; State Dept. doc. no. 96–48, KAV no. 4529. Published in V. Morris and M.P.
Scharf, The International Criminal Tribunal for Rwanda (Irvington-on-Hudson, NY: Transnational
Publishers, 1998), vol. 2, at 391. The Agreements are identical; provisions quoted without source refer
to both.
3 The party with whom the US have entered into an agreement is the UN; the Tribunals are subsidiary
organs of the Security Council and not entities with legal personality separate from the UN. Defending
this point of view, F. Martines, ‘Legal Status and Powers of the Court’, in A. Cassese, P. Gaeta and J. Jones
(eds), The Rome Statute of the International Criminal Court. A Commentary (Oxford: Oxford University
Press, 2002) (hereinafter ‘Cassese commentary’), vol. I, at 204; G. Jaenicke, ‘Article 7’, in B. Simma (ed.),
The Charter of the United Nations. A Commentary (2nd edn, Oxford: Oxford University Press, 2002), vol. 1,
224, mn. 26. The ICTY speaks of its creation as the establishment of a subsidiary organ with judicial
powers (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić, Appeals
Chamber, 2 October 1995, paras 15, 36, and 37).
4 And not formal treaties as provided by Article II, Section 2, Clause 2, of the US Constitution, which are
ratified by the US President following approval by the Senate by a two-thirds majority.
..............................................................................................................................................................
Journal of International Criminal Justice 1 (2003), 502–516
Journal of International Criminal Justice 1, 2 䉷 Oxford University Press, 2003. All rights reserved
 Agreements between the US and the ICTY and ICTR 503

more precisely, ‘congressional-executive’ agreements, in that they were followed by

implementing legislation approved, by simple majority, by the two branches of the US
Congress.5
Interest in these Agreements arises namely from a striking issue: the US is the only
country to have concluded surrender agreements with the Tribunals. Other countries
have complied with the obligation to provide assistance to the Tribunals simply by
enacting domestic legislation. Were these Agreements then necessary for ensuring US
compliance with the international obligations to cooperate with the Tribunals?
As Sluiter states, after correctly concluding that it would be ‘undesirable and
particularly burdensome for the Tribunals if every state were to require an additional
agreement in order to implement the obligations it already has under the UN Charter’:
Therefore, the question arises as to why the ad hoc Tribunals have concluded such agreements
with the United States. Not legal, but very pragmatic considerations play a role here. It is in the
interest of the Tribunals to facilitate assistance with them as much as possible. If this requires
the conclusion of an agreement with a State, this should not be excluded, although it should
not become common practice.6

From a pragmatic and utilitarian point of view, the answer is clear: these surrender
Agreements were signed on the basis of the US’ willingness to cooperate with the
Tribunals. In political terms, there was also a sense that the Agreements should set an
example and stimulate other states to enact legislation on assistance to the Tribunals.7
However, a legal appraisal of the Agreements may lead to different conclusions.
The Agreements – which only deal with surrender and not with other forms of
assistance – were designed to reconcile assistance to the Tribunals with US law,8 by
meeting two requirements derived from US law on extradition. The first is that the US
will only surrender suspects if there is a treaty in force.9 The second is that extradition
is granted only if the requesting state shows ‘probable cause’.
This article will first describe the content of the Agreements (Part 2), and the
litigation in US courts of the first surrender from the US to any of the Tribunals, that of
Elizaphan Ntakirutimana to the ICTR (Part 3). The discussion will then concentrate

5 In the US, a distinction is made between three types of executive agreements: congressional-executive
agreements; agreements pursuant to treaties; and presidential or sole executive agreements. See US
Senate, Treaties and other International Agreements: the Role of the United States Senate. A Study Prepared for
the Committee on Foreign Relations of the United States Senate by the Congressional Research Service
(Washington: US Government Printing Office, 2001), at 76. Clearly, this distinction is relevant for
domestic purposes only; from the point of view of international law all three types of agreements are
equally sources of law.
6 G. Sluiter, ‘Co-operation with the International Criminal Tribunals for the Former Yugoslavia and
Rwanda’, in H. Fischer, C. Kress and S. Lüder (eds), International and National Prosecution of Crimes under
International Law (Berlin: Berlin Verlag, 2001) at 703.
7 R. Kushen and K. J. Harris, ‘Surrender of Fugitives to the War Crimes Tribunals for Yugoslavia and
Rwanda’, 90 American Journal of International Law (1996) 510–518, at 515.
8 Kushen and Harris, supra note 7, at 510.
9 Title 18, Part II, Chapter 209, sec. 3181 USC: ‘The provisions of this chapter relating to the surrender of
persons who have committed crimes in foreign countries shall continue in force only during the
existence of any treaty of extradition with such foreign government.’
504 JICJ 1 (2003), 502–516

on the two central issues: the need for an agreement (Part 4) and the issue of ‘probable
cause’ (Part 5); general conclusions will follow (Part 6).

2. Content of the Agreements

The Agreements are identical in their substance and regulate the mechanism for the
surrender of persons by the US to the Tribunals.
The Agreements start by recalling the obligation of the US to surrender accused or
convicted persons to the Tribunals, and express the desire to facilitate the surrender of
such persons. Article 1, the cornerstone provision, states under the heading
‘obligation to surrender’ that the US agrees to surrender to the Tribunals persons,
including US citizens, found in its territory whom the Tribunals have charged with or
found guilty of a violation or violations within their competence. It provides that the
requirements for finding that a person is subject to surrender to the Tribunals are
solely those specifically articulated in the Agreements and that no additional
conditions or defences may be asserted by the person sought as barring such person’s
surrender.
Article 2 deals with the procedure to submit a request. It regulates which
documents the Tribunals need to present when formulating a request. These include,
in general, documents describing the identity and probable location of the person
sought, the essential facts and procedural history of the case, and the specific
violations for which surrender is sought. In case the request is for prosecution, it ‘shall
also be supported by copies of the warrant of arrest and of the indictment and by
information sufficient to establish there is a reasonable basis to believe that the person
sought has committed the violation or violations for which surrender is requested’.10
The US may find that supplemental information is needed to meet the requirements of
Article 2, in which case it shall request it from the Tribunal at issue.11 This provision
recognizes implicitly the need for a judicial hearing in the US and also the need to show
evidence of ‘probable cause’.12
Article 3 gives the Tribunals the possibility of requesting the provisional arrest of a
suspect, in case of urgency, to be followed by a request in accordance with Article 2.
Article 4 provides that the US may authorize transit through its territory of a person
surrendered to the Tribunals by another state. Article 5 provides that the US shall
appear in court representing the Tribunals where necessary, and it also regulates the
payment of expenses.
Pursuant to Article 6, the Agreements came into force on 14 February 1996,
immediately after the US notified the Tribunals that its domestic legal requirements
had been met.13

10 Article 2(3).
11 Article 2(5).
12 Kushen and Harris, supra note 7, at 513.
13 Legislation implementing the Agreements was passed by approval of Public Law 104–106, 10 February
1996, the National Defense Authorization Act for Fiscal Year 1996, section 1342.
 Agreements between the US and the ICTY and ICTR 505

In sum, the Agreements regulate one specific modality of legal assistance in

criminal matters (surrender). They resemble interstate bilateral extradition treaties,
but at the same time are simpler, given that the only substantive requirement
mentioned is that of ‘probable cause’.
Other modalities of legal assistance, such as the taking of evidence, are not covered
by the Agreements and remain unregulated.

3. The Ntakirutimana Litigation in US Courts

The issues raised by the method used by the US to provide a domestic legal basis for
complying with the obligation to cooperate with the Tribunals became fully apparent
with the litigation in US courts regarding the surrender of Elizaphan Ntakirutimana to
the ICTR.
In June and September 1996 the ICTR issued two indictments against Ntakiruti-
mana, a Rwandan Hutu, then 73 years old.14 As the suspect was then legally living in
Texas, the ICTR requested his surrender from the US.
A first request of surrender was submitted to the competent District Court in
October 1996. By decision of 17 December 1997,15 the request was denied on two
separate grounds: (1) the manner in which the US complied with the obligation to
cooperate with the Tribunals was considered unconstitutional; (2) the magistrate
found no ‘probable cause’.
The first issue hinged on the lack of a formal extradition treaty approved by the US
Senate and ratified by the US President. The judge discussed whether the district court
had jurisdiction over the ‘extraditee’16 on the basis of the Agreement with the ICTR
and the implementing legislation, Public Law 104–106, section 1342. For this
purpose, the Court asked whether there was a formal treaty as required by Title 18,

14 Indictment, Elizaphan and Gérard Ntakirutimana, 20 October 2000: genocide, complicity and conspiracy
to commit genocide, crimes against humanity and serious violations of Article 3 common to the Geneva
Conventions and of its Additional Protocol II. The alleged facts of the first indictment relate to organizing
and leading an attack in April 1994 to kill unarmed Tutsis who had gathered in the Mugonero Seventh
Day Adventist Church and hospital, of which the suspect was the minister (Ntakirutimana was the
President of the Seventh Day Adventist Church in Rwanda); the second is for subsequently operating in
the Bisesero area of Rwanda with armed groups allegedly to seek out and kill Tutsis, namely survivors of
the massacre at Mugonero. Ntakirutimana was transferred to the ICTR’s detention facility in Arusha on
24 March 2000. In February 2003, Trial Chamber I of the ICTR found Ntakirutimana guilty of genocide
and sentenced him to 10 years’ imprisonment; see Judgement and Sentence, Elizaphan and Gérard
Ntakirutimana, Trial Chamber I, 21 February 2003.
15 In the Matter of Surrender of Elizaphan Ntakirutimana, misc. no. L-96–5, United States District Court for
the Southern District of Texas, Laredo Division, 988 F Supp. 1038; 1997 US Dist. LEXIS 20714. For
reactions to this decision see J. Paust, ‘The Freeing of Ntakirutimana in the United States and
“Extradition” to the ICTR’, 1 Yearbook of International Humanitarian Law (1998), 205–209; G. Sluiter,
‘To Cooperate or Not to Cooperate?: the Case of the Failed Transfer of Ntakirutimana to the Rwanda
Tribunal’, 11 Leiden Journal of International Law (1998) 371–384, at 382.
16 Throughout, the District Court speaks consistently of ‘extradition’ and ‘extraditee’. The interpretation of
the applicable legislation propounded by the Court is that ‘Congress has instructed the Court to treat the
Agreement as if it were a treaty of extradition negotiated between the United States and some other
sovereign country’ (In the Matter of Surrender of Elizaphan Ntakirutimana, supra note 15, at 1040).
506 JICJ 1 (2003), 502–516

Chapter 209, section 3184 USC.17 The magistrate held that, for this ‘extradition’ to be
carried out, it was necessary to have in place a formal extradition treaty. Since the
Agreement with the ICTR was a congressional-executive agreement, and not a formal
treaty,18 the District Court found the implementing legislation to be unconstitutional.
The point was also made that, in practice, ‘[t]hroughout the history of this Republic,
every extradition from the United States has been accomplished under the terms of a
valid treaty of extradition’; therefore, a surrender without a treaty would contradict
previous practice.
The Court then proceeded to a discussion of ‘probable cause’.19 Reference was made
to the credibility of the evidence presented. The District Court raised numerous doubts,
mostly pointing to omissions in the affidavits which had been submitted. These had
been prepared by a Belgian police officer, and did not provide information on the
identities of the witnesses (mentioned only by letters: A, B, C, and so on); the past
reliability of the 12 interviewed witnesses; the circumstances of the interviews; the
accuracy of the translations; questions about whether or not the witnesses were
placed under oath; the witnesses’ identification of the suspect; and a considerable
number of details on the circumstances of the alleged attacks and killings. The Court
was not convinced by testimony in which various witnesses had said that
Ntakirutimana was ‘among the attackers’. The Court concluded that the evidence did
not rise to the level of ‘probable cause’ and the surrender request was therefore denied.
On January 1998 the US government presented a second request for the surrender
of Ntakirutimana which was decided by a different magistrate on August of the same
year.20 The issues raised in court were five: whether it was admissible to re-file a
request for surrender; whether the US Constitution required a treaty for surrender;
whether there was ‘probable cause’; whether the creation of the ICTR violated the UN
Charter; and whether Ntakirutimana would be subjected to unfair processes before
the ICTR. In a very detailed judgment, the District Court refused to consider the last
two questions and held for the applicant government as far as the first three were
concerned.
Ntakirutimana filed a petition for a writ of habeas corpus, which was rejected. He
then appealed, but in August 1999 the US Court of Appeals for the Fifth Circuit
confirmed the District Court’s decision.21
All issues raised in the District Court resurfaced in the Fifth Circuit, with the
exception of whether it was appropriate for the government to re-file a surrender

17 Extradition law made to apply to surrender to the Tribunals by section 1342(a)(1) of Public Law
104–106.
18 See supra notes 4–5 and respective text.
19 The fact that the Court discussed this issue is hard to understand given that the lack of a treaty sufficed
as a ground for dismissing the surrender request.
20 In re Surrender of Ntakirutimana, civil action no. L-98–43, United States District Court for the Southern
District of Texas, Laredo Division, 1998 US Dist. LEXIS 22173, 5 August 1998, Decided.
21 Ntakirutimana v. Reno, no. 98–41597, United States Court of Appeals for the Fifth Circuit, 184 F 3d 419;
1999 US App. LEXIS 18253, 5 August 1999, Decided, as revised 23 August 1999, certiorari denied 24
January 2000, reported at 2000 US LEXIS 833.
 Agreements between the US and the ICTY and ICTR 507

request following a previous denial.22 The majority decision of the Fifth Circuit fully
confirmed the District Court’s judgment, for the same grounds. The Court of Appeals
namely found that it was possible to resubmit the request; that an extradition treaty
was not necessary; and that the evidence on the record was sufficient to support the
District Court’s conclusion that there was ‘probable cause’.23 These last two issues will
be discussed in detail below. One judge filed a strong dissent, insisting on the need for a
treaty followed by ratification after approval by the Senate by a two-thirds majority.
Another judge, while not formally dissenting, expressed doubts on whether the
evidence presented was enough to meet the ‘probable cause’ requirement.
Ntakirutimana appealed again, but by decision of January 2000, the US Supreme
Court refused to hear the case24 and the surrender was certified.
The Ntakirutimana v. Reno precedent is, in a nutshell, that under US law surrender
to the ad hoc Tribunals, like interstate extradition, does not necessarily require a
formal treaty (domestic legislation suffices) but ‘probable cause’ has to be established.

4. The Need for a Formal Treaty and the Intervention of the

Legislative Branch
The question of the alleged need for a formal extradition treaty under Article II of the
US Constitution and the type of intervention required by the legislative branch is the
first of two key issues that call for detailed discussion.
Under US law, it is undisputed that the executive branch can not alone apprehend
and surrender a suspect to a foreign state or to an international organization. The
problem resides in determining the exact type of approval required by the legislative
branch. On the one hand there is the claim that a formal extradition treaty passed by
the Senate by a two-thirds majority and ratified by the President is necessary; in this
view, a congressional-executive agreement (an executive agreement to which
Congress assented in accordance with the normal legislative procedure) is not a valid
way to regulate extradition. On the other hand there is the claim that approval by the
legislative branch does not necessarily have to take the form of a ratification process;
in this view, the normal legislative process is a perfectly valid way to regulate
extradition.
In endorsing the latter view, the Court of Appeals relied strongly on Valentine v.
United States,25 a 1936 Supreme Court decision of an extradition request, formulated
by France, for the surrender of US nationals charged with extraditable offences
specified in the France-US extradition treaty of 1909.

22 See, in detail, Alexandropoulos, ‘Enforceability of Executive-Congressional Agreements in Lieu of an

Article III Treaty for Purposes of Extradition: Elizaphan Ntakirutimana v. Janet Reno [184 F 3d 419] (5th
Cir. 1999)’, 45 Villanova Law Review (2000) at 107.
23 The issues of whether the ICTR was lawfully established and whether the ICTR would afford due process
were judged to be beyond the scope of habeas corpus review.
24 Ntakirutimana v. Reno, 99–479, Supreme Court of the United States, 528 US 1135; 120 S Ct. 977; 145 L
Ed. 2d 929; 2000 US LEXIS 833; 68, USLW 3479, 24 January 2000, Decided.
25 Valentine v. United States ex rel. Neidecker, 299 US 5 (1936).
508 JICJ 1 (2003), 502–516

In Valentine, the Supreme Court approached the issue in accordance with the
premise that legal authority to extradite is necessary. The Supreme Court stressed the
need for authorization from the legislative branch to extradition arrangements, but
held that such authorization could take place either through a treaty or through
legislation:
[t]he Constitution creates no executive prerogative to dispose of the liberty of the individual.
Proceedings against him must be authorized by law. There is no executive discretion to
surrender him to a foreign government unless that discretion is granted by law. It necessarily
follows that, as the legal authority does not exist save as it is given by act of Congress or by the
terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It
must be found that statute or treaty confers the power (emphasis added).26

On this basis – extradition must take place in accordance with a treaty or a statute –
the Supreme Court analysed first the relevant statute and concluded:
Whatever may be the power of the Congress to provide for extradition independent of treaty,
that power has not been exercised save in relation to a foreign country or territory ‘occupied by
or under the control of the United States’. Act June 6, 1900, c. 793, 31 Stat. 656. 18 USC
§ 652. See Neely v. Henkel, 180 US 109, 122. Aside from that limited provision, the Act of
Congress relating to extradition simply defines the procedure to carry out an existing
extradition treaty or convention. . . . It is manifest that the Act does not attempt to confer power
upon the Executive to surrender any person, much less a citizen of the United States, to a
foreign government where an extradition treaty or convention does not provide for such
surrender. The question then is the narrow one whether the power to surrender the
respondents in this instance is conferred by the treaty itself.

In other words, the Court found that US legislation in force at the time was a
sufficient legal basis to allow the executive to extradite to a foreign country or territory
‘occupied by or under the control of the United States’ – but not to any other
jurisdiction.
The Court then discussed at length the US-France treaty and found that it also did
not allow for the extradition of US nationals to France.27 Consequently, extradition
was denied.
There are conflicting readings of Valentine. The dissenting judge (DeMoss) in
Ntakirutimana as well as at least one commentator state that the reference made by the
Supreme Court in Valentine to the possibility to extradite in accordance with a statute
was simply dicta28 and claim that no significance should be attached to it. However,

26 Ibid., at 10.
27 This is the longest part of the judgment; the treaty provision at the centre of the dispute read: ‘Neither of
the contracting Parties shall be bound to deliver up its own citizens or subjects under the stipulations of
this convention.’ For an early critique of the decision regarding this point, see J.W. Garner,
‘Non-Extradition of American Citizens — the Neidecker Case’, 30 American Journal of International Law
(1936) at 480; see also C. Blakesley, ‘Extradition between France and the United States: an Exercise in
Comparative and International Law’, 13 Vanderbilt Journal of Transnational Law (1980) at 653 ff.
28 Ntakirutimana v. Reno, supra note 21, dissenting opinion, at B. Erin Borcherding writes: ‘the Fifth Circuit
relied heavily on a 1936 case in which the Supreme Court, in dicta, stated that a treaty or a statute was a
sufficient basis for extradition. However, Valentine is easily distinguishable because the extradition in
Valentine did involve a treaty. Because that case did involve a treaty, the Court’s analysis did not focus
on or attempt to resolve whether something less than a treaty would be sufficient to extradite an
 Agreements between the US and the ICTY and ICTR 509

this reading was convincingly rebutted by the District Court.29 Since both possibilities
were openly envisaged as avenues for finding the necessary legislative support, but in
the end both rejected, it appears to be completely arbitrary to claim that one of them
was dicta while the other was not.30
In Valentine, ‘[t]he Court, therefore, established the principle that the power to
extradite a fugitive does not need to be conferred by treaty. The Court recognized the
validity of a legislative provision conferring a grant of power upon the executive to
extradite a fugitive’.31 Valentine established that: (a) legislative approval is necessary
for extradition: the executive branch cannot alone surrender or extradite; (b) such
approval may come from a treaty or from a statute.
Ntakirutimana was decided on the same premises as Valentine. However, in
Ntakirutimana, unlike in Valentine, authorization from the legislative branch was
found – on a statute – and therefore surrender was allowed. The Court of Appeals, in
confirming the decision of the District Court on the second surrender request,
summarized the latter as follows:
The district court concluded that it is constitutional to surrender Ntakirutimana in the absence
of an ‘extradition treaty’, because a statute authorized extradition (emphasis added).32

In the case of surrender to the ICTY and to the ICTR, the necessary approval of the
legislative branch required by Valentine is provided by statute, not by treaty.
Ntakirutimana’s attempt to have his surrender denied on the basis that there was no
ratified treaty was dismissed by pointing to the existence of legislation:
Valentine indicates that a court should look to whether a treaty or statute grants executive
discretion to extradite. Hence, Valentine supports the constitutionality of using the Con-
gressional-Executive Agreement to extradite Ntakirutimana. Ntakirutimana attempts to
distinguish Valentine on the ground that the case dealt with a treaty between France and the
United States. Yet, Valentine indicates that a statute suffices to confer authority on the President

individual. Therefore, the Supreme Court’s stray reference to a statute in Valentine, which was clearly
dicta, did not bind the Fifth Circuit’s decision in Ntakirutimana.’ (‘Validating a Constitutional Shortcut.
The “Congressional-Executive Agreement’”, 69 University of Cincinnati Law Review (2001) at 1074 and
1076).
29 ‘Although Ntakirutimana argues that all of this Supreme Court language concerning statutory
extradition is dicta, the Court is reluctant to dismiss this language so easily. After all, the unanimous
Court stated the requirement that extradition be authorized by treaty or statute five times in one opinion.
. . . This Court does not believe that such language is accidental. Therefore, at a minimum, the Court
finds the repeated references to the propriety of extradition by statute as substantial evidence that the
present surrender is likewise proper.’ (In re Surrender of Ntakirutimana, supra note 20, at 37; emphasis in
the original.)
30 In fact, in Valentine the Supreme Court accepted openly the possibility that extradition could be allowed
by statute and, consequently, discussed whether there was a statute providing for it. In logical terms, the
Court considered that effect E (extradition) could take place if conditions S (statute) or T (treaty) were
present, alternatively. It went on to deny effect E because neither condition S nor T were satisfied. It
seems therefore not reasonable to dismiss the fact that the Court openly considered and discussed the
possibility to extradite if condition S (statute) was met and only highlight the fact that condition T
(treaty) was considered.
31 Alexandropoulos, supra note 22, at 114.
32 Ntakirutimana v. Reno, supra note 21, at 10.
510 JICJ 1 (2003), 502–516

to surrender a fugitive. See id. Ntakirutimana suggests also that Valentine expressly challenged
the power of Congress, independent of treaty, to provide for extradition. Valentine, however, did
not place a limit on Congress’s power to provide for extradition. See id. at 9, 57 S. Ct. at 102
(‘Whatever may be the power of the Congress to provide for extradition independent of treaty ...
’). Thus, although some authorization by law is necessary for the Executive to extradite,
neither the Constitution’s text nor Valentine require that the authorization come in the form of
a treaty.33

There was also controversy as to the relevance of past extradition practice;

Ntakirutimana claimed that Public Law 104–106 was unconstitutional because,
based on historical practice, extradition had always been made in accordance with a
treaty. However, the Court of Appeals did not accept this argument: the fact that in the
past there had been no extradition in the absence of a treaty was seen as a fact devoid
of normative significance: historical practice did not limit the power of Congress.34 The
Court added that ‘the Supreme Court’s statements that a statute may confer the power
to extradite also reflect a historical understanding of the Constitution. . . . Even if
Congress has rarely exercised the power to extradite by statute, a historical
understanding exists nonetheless that it may do so’.35
The general conclusion to be drawn from Valentine and Ntakirutimana is that there
must be legislative approval for an extradition arrangement to be valid under US law: in
Valentine, no such legislative support was found (neither in treaty nor in statute) and
therefore extradition was denied. In Ntakirutimana, such support was found on a
statute, and therefore extradition was allowed. Ntakirutimana effectively rests upon
the fact that there is a statute by which the legislative branch expressed its agreement
to the surrender Agreement signed with the UN.
Therefore, one of the key reasons invoked for the conclusion of the Agreements
between the US and the Tribunals – the need for an agreement – was disallowed by
American courts the first time a surrender was attempted. After Ntakirutimana, it is
clear that surrender to the Tribunals, from the point of view of US law, do not
necessarily require an international agreement.

33 Ibid., at 15–16 (emphasis in the original).

34 The reference to ‘Whatever may be the power of the Congress to provide for extradition independent of
treaty, that power has not been exercised save in relation to a foreign country or territory “occupied by
or under the control of the United States.”’ is a description of the US practice at the time and not, as
Borcherding suggests, a normative statement to the effect that extradition without a treaty can only
take place in the case described (supra note 28, at 1075). Similarly, when the Court says that ‘it is
manifest that the Act [by Congress] does not attempt to confer power upon the Executive to surrender
any person ... to a foreign government where an extradition treaty or convention does not provide for
such surrender’, this is simply an interpretation of a particular law and not, as Borcherding suggests, a
normative general statement to the effect that, in general, extradition cannot be allowed by statute
(supra note 28, at 1075–1076). Only in this manner can this author reach the conclusion that Valentine
does limit the power of Congress to extradite pursuant to a statute, and claim that neither of the
situations described by the Court in Valentine indicating when Congress has the power to extradite were
present in Ntakirutimana. Mary Coombs comments that ‘a long history of doing something in a
particular way cannot be magically transmuted into a constitutional obligation to do it only in that
way’ (‘Annotation: In re Surrender of Ntakirutimana, 05.08.1999, 184 F 3. 419’, American Journal of
International Law (2000) 171–178, at 177).
35 Ntakirutimana v. Reno, supra note 21, at 19.
 Agreements between the US and the ICTY and ICTR 511

Additionally, in the Ntakirutimana litigation, the legal discussion was based on the
same legislation and case law as in interstate extradition. The various decisions of US
courts failed to take account of the fact that the case that generated the debate was not
extradition in a narrow or interstate sense, and that therefore precedents were lacking
on the matter. The Agreements were taken out of context and regarded as if they were
extradition treaties with foreign states.36 In the discussion, no account was taken of
the fact that this was the first request of surrender by an international penal
jurisdiction. For this reason, the Ntakirutimana precedent on the issue of the need for a
treaty is valid also for interstate extradition.
From the point of view of UN law, there was clearly no need for a formal agreement, as
there were already legal bases sufficient to require from any UN Member States, such
as the US, the fulfilment of their obligations to cooperate with the Tribunals.37 The
legal basis of the obligation for UN Member States lies first and foremost in the UN
Security Council resolutions where such obligation was laid down. This obligation
was then confirmed in the Statutes of the Tribunals, in their Rules of Procedure and
Evidence, and in their case law. UN Member States have an obligation to comply with
binding decisions of the Security Council. The way they comply is a matter of their
internal competence; namely, if they require legislation, they should enact it.

5. The Issue of ‘Probable Cause’

As mentioned, the Agreements make surrender conditional upon a demonstration of
‘probable cause’. Requests by the ICTY or ICTR for prosecution have to be supported
by ‘information sufficient to establish there is a reasonable basis to believe that the
person sought has committed the violation or violations for which surrender is
requested’.38
The US expected that the requirement of ‘probable cause’ would not pose practical
problems given that the standard of evidence required by the Tribunals for indictment
(prima facie evidence) is higher than the standard applicable to ‘probable cause’
findings.39 In other words, the finding of ‘probable cause’ would be merely a formality.

36 This error is most evident on the dissenting opinion by Judge DeMoss, who states that the ICTR ‘is a
nonsovereign entity created by the United Nations Security Council, purporting to “DIRECT” the
officials of our sovereign nation to surrender the accused’ (Ntakirutimana v. Reno, supra note 21, at 432,
capitalization in the original), but it extends to the commentators; for example, Borcherding, in order to
support the argument that a treaty was needed, states that ‘[t]he Congressional-Executive Agreement
at issue here completely submits the individuals to the Tribunal authority, which is wholly separate
from the United States government’ (supra note 28, at 1078), ignoring the fact that it is related to the
activity of the UN, an international organization in which the US actively participates.
37 In this sense, Sluiter, supra note 6, at 703.
38 Article 2(3); in US law, the same requirement arises from Title 18, Part II, Chapter 209, section 3184
USC, as a result of the reference from section 1342(a)(1) of Public Law 104–106.
39 According to Kushen and Harris (writing before the decisions of the Ntakirutimana litigation), ‘[s]ince
both Statutes [of the Tribunals] require that an indictment be founded upon the arguably higher
standard of prima facie evidence, meeting the U.S. “probable cause” standard should require only the
transmittal of evidence already compiled and should not impose factfinding obligations on the Tribunals
inconsistent with the Statutes.’ (Kushen and Harris, ‘Surrender of Fugitives to the War Crimes
512 JICJ 1 (2003), 502–516

As seen, this is not what happened in the case of the surrender of Ntakirutimana,
where the finding of ‘probable cause’ was quite controversial: the District Court that
refused the first surrender request found no ‘probable cause’, while both the District
Court that decided the second request as well as the Court of Appeals reached the
opposite conclusion; in the latter case, one of the judges, while not formally dissenting,
expressed doubts.
‘Probable cause’ is a traditional requirement for extradition from common law
countries. It is a protection against unjustified extradition, according to which the
requested state engages in a review of the evidence provided by the requesting state in
order to ascertain whether there are reasonable grounds to believe that the accused
whose surrender is requested may have indeed committed the crime charged, thereby
justifying the trial.40
In the framework of interstate mutual legal assistance, ‘probable cause’ is one of
many possible grounds usually mentioned in extradition treaties that enable the
requested state to lawfully refuse assistance. In relation with the Tribunals, ‘probable
cause’ is the only substantive cause for denial of surrender envisaged in the
Agreements. Most of the other traditional grounds for refusal (such as the political
offence exception, speciality,41 double criminality,42 reciprocity,43 non surrender of

Tribunals for Yugoslavia and Rwanda: Squaring International Legal Obligations with the U.S.
Constitution’, 7 Criminal Law Forum (1998) 561 ff., at 583; the authors acknowledge having
participated in the preparation of the Agreements and of the US legislation implementing them); they
further explain that ‘[p]rima facie evidence is evidence that, if uncontradicted, would sustain a
conviction. Probable cause is “a reasonable ground for belief of guilt” but it is less than evidence that
would justify conviction’ (ibid., note 66).
40 See, in general, M. C. Bassiouni, ‘Law and Practice of the United States’, in Bassiouni, International
Criminal Law (2nd edn, Ardsley NY: Transnational Publishers, 1999), vol. 2, at 226; J. Nafziger and E.
Wise, ‘The Status in United States Law of Security Council Resolutions Under Chapter VII of the United
Nations Charter’, 46 American Journal of Comparative Law (1998) at 436; R. Rosoff, ‘The Quantum of
Evidence Required to Extradite from the United States’, in J. Lummis (ed.), Transnational Aspects of
Criminal Procedure (New York: Clark Boardman, 1983) at 123. The requirement of ‘probable cause’
exists in other common law legal systems, such as in the United Kingdom, where it is known as ‘prima
facie case’; see G. Gilbert, Aspects of extradition law (Dordrecht: Martinus Nijhoff, 1991) at 56, I.
Stanbrook and C. Stanbrook, Extradition: Law and Practice (2nd edn, Oxford: Oxford University Press,
2000) at 8.169–8.171.
41 According to the rule of speciality (also spelled ‘specialty’), a person who was surrendered or extradited
may not be prosecuted for offences other than the one(s) that formed the basis of the request (see
European Convention on Extradition, Article 22). The ICTY has held that the rule of speciality does not
apply in relation to its proceedings (Decision Stating Reasons for Appeals Chamber’s Order of 29 May
1998, Kovacević, Appeals Chamber, 2 July 1998, para. 37). However, the rule exists in the ICC context,
but is not necessarily applied strictly, as it may be waived by the surrendering state Party (Article 102–2
ICCSt.).
42 This is a traditional rule of mutual legal assistance according to which for cooperation to take place it is
necessary that the conduct at issue be considered a crime in both the requesting and the requested state.
In connection with international courts, it should be observed that their competence is related to certain
international crimes, that is, sets of rules of international customary law, many of then peremptory,
which address themselves directly to individuals. This being so, it wouldn’t make sense to require that
the state providing assistance should have also criminalized these conducts in their domestic legal
systems (failing which assistance would be denied).
43 Most obviously, reciprocity does not apply, as assistance takes place in one direction only, from states to
the ad hoc Tribunals, which, moreover, have primacy over national jurisdictions.
 Agreements between the US and the ICTY and ICTR 513

nationals,44 statute of limitations) do not apply to the relations between states and the
Tribunals. A principle that instead applies in both classes of situations is ne bis in
idem.45 Generally speaking, the cases where assistance to the Tribunals can be refused
are very restricted.
However, does it make sense to apply the requirement of ‘probable cause’ to the
surrender to international Tribunals?
The short answer is no, for a number of reasons. It should be recalled that, where
the ad hoc Tribunals are involved, assistance is provided to a subsidiary organ of the
Security Council, established under Chapter VII of the UN Charter. There is therefore a
general obligation to render assistance: legal assistance to the ICTY and ICTR is
binding for all UN Member States, in accordance with SC Resolutions 827 (para. 4)46
and 955 (para. 2),47 approved under Chapter VII of the UN Charter, and also in
accordance with the Statute of each International Tribunal (Article 29 ICTYSt.;
Article 28, ICTRSt.) and the Rules of Procedure and Evidence.48 International
Tribunals basically order or direct states to render assistance. Failure to comply with a
request may result in the adoption of sanctions by the Security Council, following a
finding by the Tribunals that a state has failed to comply with its obligations.49

44 The Agreements explicitly mention that they also apply to US citizens (Article 1); this is in line with the
tradition in common law countries regarding extradition.
45 According to which a person may not be tried or punished twice for the same conduct. Ne bis in idem is
addressed in the Statutes of the Tribunals (Article 10 ICTYSt.; Article 9 ICTRSt.): it is recognized as
preventing another trial, unless the act for which the person was tried was characterized as an ordinary
crime, or if the national court proceedings were not impartial or independent, were designed to shield
the accused from international criminal responsibility, or the case was not diligently prosecuted.
46 Which states: ‘[the Security Council] Decides that all States shall cooperate fully with the International
Tribunal and its organs in accordance with the present resolution and the Statute of the International
Tribunal and that consequently all States shall take any measures necessary under their domestic law
to implement the provisions of the present resolution and the Statute, including the obligation of States
to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the
Statute.’
47 Which states: ‘[the Security Council] Decides that all States shall cooperate fully with the International
Tribunal and its organs in accordance with the present resolution and the Statute of the International
Tribunal and that consequently all States shall take any measures necessary under their domestic law
to implement the provisions of the present resolution and the Statute, including the obligation of States
to comply with requests for assistance or orders issued by a Trial Chamber under Article 28 of the
Statute, and requests States to keep the Secretary-General informed of such measures.’
48 Rule 58 states: ‘The obligations laid down in Article [28/29] of the Statute shall prevail over any legal
impediment to the surrender or transfer of the accused or of a witness to the Tribunal which may exist
under the national law or extradition treaties of the State concerned.’
49 Rule 7bis ICTY RPE. These propositions were set out by the case law of the ICTY: in Judgment on the
Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997,
Blaškić, Appeals Chamber, 29 October 1997, the Appeals Chamber affirmed the power to issue orders to
all Member States, clarified that this is an obligation erga omnes partes (para. 26) and went on to state
that ‘the relation between national courts of different States is “horizontal” in nature’ while the relation
between UN Member States and the Tribunal is ’vertical’ (para. 47). See also A. Cassese, ‘The Statute of
the International Criminal Court. Some Preliminary Reflections’, 10 European Journal of International
Law (1999) 144–171, at 164; M. Ubéda, ‘L’obligation de coopérer avec les jurisdictions inter-
nationales’, in H. Ascensio, E. Decaux and A. Pellet (eds), Droit International Pénal (Paris: Pedone, 2000)
at 951.
514 JICJ 1 (2003), 502–516

In this context, it is submitted that a substantial review of ‘probable cause’ is not

compatible with the relation between UN Member States and the Tribunals.50 Since it
may block or at least delay surrender, it runs against the Security Council Resolutions
that established the Tribunals, which simply state that UN Member States shall
cooperate with the Tribunals, without any substantive conditions (other than those
arising from the Statutes of the Tribunals) and without undue delay.
On the other hand, the concern for possible unjustified extradition that lies at the
basis of the ‘probable cause’ requirement should have not been kept by the US in
relation the ICTR and the ICTY, for these are Tribunals whose authority,
independence, and impartiality should be beyond doubt,51 especially for a permanent
member of the Security Council. Accordingly, when a request for surrender is made by
an international criminal tribunal like the ICTR, requested states should consider that
the indictment issued by the Tribunal is sufficient evidence of the possible commission
of the crime charged, and warrants the surrender without the need for a substantive
review.
This is therefore a point where UN member states should draw a distinction
between interstate legal assistance and cooperation with the Tribunals.52 In the
traditional interstate system of legal assistance in criminal matters, based on
sovereignty,53 states do not have a customary law obligation to provide legal
assistance to other states, related to the prosecution of all crimes. Such an obligation
only exists if there is a treaty in force providing for it.54 Conversely, where treaties or a
customary law obligation exist, and if the respective requirements are met, then there

50 In this sense, G. Sluiter, ‘The Case of Ntakirutimana Revisited’, 13 Leiden Journal of International Law
(2000) at 465.
51 This was recognized by the European Court of Human Rights, which held that ‘in view of the content of
its Statute and Rules of Procedure, [the ICTY] offers all the necessary guarantees including those of
impartiality and independence’; ECHR, Naletilić v. Croatia, Application no. 51891/99, 4 May 2000.
52 This contrast is firmly acknowledged; see Sluiter, supra note 6, at 697; First Annual Report of the ICTY to
the General Assembly and Security Council of the United Nations, UN doc. A/49/342-S/1994/1007, 29
August 1994, para. 174, where it is stated that the President of the ICTY called on Member States ‘not to
apply to such transfer, by analogy, existing legislation or bilateral conventions governing extradition’;
‘[t]he transfer of the accused to the Tribunal is not an issue coming within the purview of legal relations
between States: rather, it pertains to the general attitude of co-operation that each State must adopt
with respect to an international criminal court’.
53 Given that the enforcement of criminal law falls within the purview of the territorial state, states need to
resort to legal assistance from other states. Also as a rule, sovereign states do not allow the exercise of
law enforcement in their territory by other states, namely the direct contact with individuals, the
carrying out of investigations, the enforcement of subpoenas or the apprehension of suspects. That
would amount to a violation of sovereignty, forbidden by international law. See, e.g. R. Zimmerman, La
Coopération Judiciaire Internationale en Matière Pénale (Berne: Staempfli, 1999) at 1; I. Brownlie, Principles
of Public International Law (5th edn, Oxford: Claredon Press, 1998) at 310.
54 A. Geiger, ‘Legal Assistance between States in Criminal Matters’, in Encyclopedia of Public International
Law, vol. 3, at 201; Oppenheim, Jennings and Watts, International Law (9th edn, London: Longman,
1992), 950 (referring to extradition); B. Swart, ‘General Problems’, in Cassese Commentary, at 1590.
 Agreements between the US and the ICTY and ICTR 515

is a legal duty to provide assistance that can involve the arising of state responsibility if
it is not fulfilled.55
This separation extends to terminology: there is a trend to restrict the term
‘extradition’ to the interstate framework. One should not speak of extradition towards
the ad hoc Tribunals because the term implies a surrender that may or may not take
place, as per a decision of a state which, in principle and in the absence of extradition
treaties creating binding obligations, is free and discretionary; UN Member States do
not have such discretion in relation to the Tribunals.
States can certainly regulate cooperation with the Tribunals by making reference to
their legislation on interstate legal assistance, which thus may apply to procedural
aspects. It is also possible for UN Member States to establish a judicial procedure to
ascertain the need to comply with request, including a review of the request before a
judge; however, such review should be confined to formal aspects, that is, an ‘enquiry
into the facial validity of a Tribunal order’.56
The Agreements recognize to some extent the different nature of assistance to the ad
hoc criminal Tribunals, as they do not mention most of the traditional obstacles to
legal assistance and expressly state that the requirements for finding that a person is
subject to surrender are solely those specifically articulated in the Agreements.57
However, they still require ‘probable cause’. As seen in Ntakirutimana, this
requirement is a potential obstruction to cooperation, which may cause a violation of
US obligations towards the UN. Additionally, it may unduly delay58 the surrender; it
was seen that Ntakirutimana’s surrender, which was requested on September 1996,
only took place in March 2000, three and a half years later.
For these reasons, the US should have carried the distinction between interstate
legal assistance and cooperation with the Tribunals to its logical conclusion, and not
required ‘probable cause’. This could have been achieved either by stating that the
indictments by the ICTY and ICTR would automatically be considered as sufficient
evidence of ‘probable cause’ or by stating, like in the United Kingdom,59 that ‘probable
cause’ is not to be reviewed.

55 E. David, ‘La Responsabilité de l’État pour Absence de Coopération’, in Ascensio, Decaux, Pellet (eds),
supra note 49, at 129.
56 Kushen and Harris, ‘Surrender of Fugitives by the United States to the War Crimes Tribunals for
Yugoslavia and Rwanda’, supra note 7, at 511. For example, the Portuguese law on cooperation with
the ICTY and the ICTR states that a request for arrest and surrender can only be refused if the warrants
are not certified and signed by a judge, if the facts do not fall within the territorial and temporal
competence of the Court, or if a judge determines that the person arrested is not the person wanted by
the Tribunal (Article 10, Law no. 102/2001, of August 25).
57 Article 1(2).
58 For a discussion and critique of the US procedural rules on extradition, see M. Coombs, supra note 34, at
178.
59 Article 6(7) of the United Nations (International Tribunal) (Former Yugoslavia) Order 1996 states:
‘Nothing in this Order shall be construed as requiring a competent court to be satisfied that there is
evidence sufficient to warrant the trial of an accused person by the International Tribunal.’
516 JICJ 1 (2003), 502–516

6. Conclusions
In sum, the Agreements, while being certainly a positive step in the construction of
international criminal law, still lend themselves to various objections.
First, they were not legally needed. It was seen that from the point of view of UN law,
the conclusion of the Agreements was not necessary in order to pursue the activities of
the Tribunals, as there were already sufficient legal bases for requiring any of the UN
Member States to fulfil their obligations.60 Only if such bases were not sufficient could
one conceive of the need to conclude agreements dealing with legal assistance.61 From
the point of view of US law, after Ntakirutimana v. Reno it is clear that the Agreements
were not necessary.
Secondly, the Agreements only cover surrender of suspects, leaving other forms of
US cooperation with the Tribunals unregulated.
Thirdly, in providing for the ‘probable cause’ requirement, the Agreements may
create legal obstacles to the timely fulfilment by the US of the obligation to fully
cooperate with the Tribunals. If US courts find no ‘probable cause’, cooperation will
not take place; in any case, the litigation of the issue may unduly delay a surrender.
Therefore, the ‘probable cause’ requirement runs counter to the obligation to provide
unconditioned and timely cooperation.

60 In this sense, Sluiter, supra note 6, at 703.

61 That could have been the case of Switzerland, a non-UN Member State at the time, which was not bound
by the Resolutions of the UN Security Council: Switzerland could have accepted, on a voluntary basis, to
comply with the Resolutions, by means of an agreement or other form of binding a state; Switzerland
chose to enact domestic legislation. That is also in general the case on the issue of enforcement of
sentences, as there is in principle no obligation to enforce them.