April 18, 2003
In capitals around the world, U.S. government representatives are seeking bilateral immunity, or so-called "Article 98" agreements in an effort to shield U.S. citizens from prosecution by the newly-created International Criminal Court (ICC or Court). Dubbed "impunity agreements" by leading legal experts, these bilateral agreements, if signed, would provide that neither party to the accord would bring the other's current or former government officials, military or other personnel (regardless of whether or not they are nationals of the state concerned) before the jurisdiction of the Court.
Many legal, government and NGO representatives argue that the U.S. is misusing Article 98 of the Rome Statute of the International Criminal Court, the provision of the ICC's governing treaty that the U.S. is using to justify seeking such accords. Legal experts furthermore contend that if countries that have ratified the Rome Statute enter into such agreements, they would breach their obligations under international law.
Q: Why is the U.S. seeking bilateral immunity agreements?
A: The pursuit of bilateral immunity agreements is part of a long history of U.S. efforts to gain immunity for its citizens from the ICC. From 1995 through 2000, the U.S. government supported the establishment of an ICC, yet one that could be controlled through the Security Council or provided exemption from prosecution of U.S. officials and nationals. In 2001, the Bush Administration discontinued participation in ICC meetings and, on 6 May 2002, officially nullified the Clinton administration's signature of the Rome Statute. Purportedly, the Bush Administration believes that the Court could be used as a stage for political prosecutions, despite ample safeguards included in the Rome Statute to protect against such an event.
Contrary to assurances from high-level U.S. officials, the U.S. is not respecting the rights of States that have ratified or acceded to the Rome Statute. As it did in seeking an exemption for peacekeepers from the jurisdiction of the ICC through the Security Council, the U.S. government is using coercive tactics to obtain immunity from the jurisdiction of the ICC for its nationals. U.S. officials have publicly threatened economic sanctions, such as the termination of military assistance, if countries do not sign the agreement. In several instances, there have been media reports of the U.S. providing large financial packages to countries at the time of their signature of bilateral immunity agreements.
Q: What is Article 98 of the Rome Statute?
A: The nations that negotiated the drafting of the Statute did so with extensive reference to international law and with care to address potential conflicts between the Rome Statute and existing international obligations. The drafters recognized that some nations had previously existing agreements, such as Status of Forces Agreements (SOFAs), which obliged them to return home the nationals of another country (the "sending state") when a crime had allegedly been committed. Thus Article 98(2) was designed to address any potential discrepancies that may arise as a result of these existing agreements and to permit cooperation with the ICC. The article also gives the "sending state" priority to pursue an investigation of crimes allegedly committed by its nationals. This provision is consistent with the Statute's complementarity principle, which allows the country of the nationality of the accused the first opportunity to investigate and, if necessary, try an alleged case of genocide, war crimes, or crimes against humanity.
Q: What are the bilateral immunity agreements being sought by the U.S.?
A: To date, several versions of these bilateral agreements have been proposed: those that are reciprocal, providing that neither of the two parties to the accord would surrender the other's "persons" without first gaining consent from the other'; those that are non-reciprocal, providing only for the non-surrender to the ICC of U.S. "persons"; and those that are intended for states that have neither signed nor ratified the Rome Statute, providing that those states not cooperate with efforts of third-party states to surrender U.S. "persons" to the ICC.
Q: Why do experts believe bilateral immunity agreements are in contravention of international law?
A: Many governmental, legal and non-governmental experts have concluded that the bilateral agreements being sought by the U.S. government are contrary to international law and the Rome Statute for the following reasons:
By contrast, the US-proposed bilateral immunity agreements seek immunity for a wide-ranging class of persons, without any reference to the traditional sending state-receiving state relationship of SOFA and SOMA agreements. This wide class of persons would include anyone found on the territory of the state concluding the agreement with the U.S. who works or has worked for the U.S. government. Government legal experts have stated that this could easily include non-Americans and could include citizens of the state in which they are found, effectively preventing that state from taking responsibility for its own citizens.
Q: What are the possible ramifications of the signature of these bilateral immunity agreements?
A: States that sign these agreements would breach their obligations under the Rome Statute, the Vienna Convention on the Law of Treaties and possibly their own extradition laws. In particular, States Parties to the Rome Statute that sign these agreements will breach Articles 27, 86, 87, 89 and 90 of the Statute, which require states to cooperate with and provide assistance to the Court. These states will also violate Article 18 of the Vienna Convention on the Law of Treaties, which obliges them to refrain from acts that would defeat the object and purpose of the Statute. Finally, many states will likely violate their own extradition laws in signing such agreements, as states generally have much wider power to approve extraditions and surrenders of persons than the US-proposed bilateral immunity agreements would allow.
Q: Who has been approached with bilateral immunity agreements and with what result?
A: Reports indicate that many countries from around the world, including close allies of the U.S. government, those seeking membership in NATO, and those in the Middle East and South Asia, have been targeted for approach and face extreme pressure to sign. John Bolton, US Undersecretary for Arms Control and International Security, recently stated, "Using Article 98 of the Rome Statute as a basis, we are negotiating bilateral, legally-binding agreements with individual States Parties to protect our citizens from being handed over to the Court. Our negotiators have been engaged in bilateral discussions with several EU countries….(and) several countries in the Middle East and South Asia. Our ultimate goal is to conclude Article 98 agreements with every country in the world, regardless of whether they have signed or ratified the ICC, regardless of whether they intend to in the future."
As of April 16, 2003, twenty-seven countries were reported to have signed U.S. bilateral immunity agreements: Romania, Israel, East Timor, the Marshall Islands, Tajikistan, the Dominican Republic, Palau, Mauritania, Uzbekistan, Honduras, Afghanistan, Micronesia, Gambia, El Salvador, Sri Lanka, India, Nepal, Djibouti, Bahrain, Tuvalu, Georgia, Azerbaijan, Nauru, the Democratic Republic of Congo, Tonga, Sierra Leone and Rwanda. National law in many of these countries requires that the agreement be ratified by parliament before becoming binding. Several countries, including members of the European Union, have conducted legal analyses of these agreements and concluded that the proposed agreements are contrary to international law.
Q: How does this effort tie in with the larger U.S. offensive against the Court?
A: A number of relevant foreign policy directives from Washington have paved the way for the U.S. effort to gain exemption for its citizens from the ICC. On May 6, 2002, Marc Grossman, U.S. Under Secretary of State for Political Affairs, announced that the current administration no longer considered itself bound by the U.S. signature of the Rome Statute and did not intend to ratify the treaty. In May 2002, the U.S. first threatened to destabilize UN peacekeeping operations by promising to veto the UN mission in East Timor unless its military personnel were granted immunity from the ICC; the operation was renewed without such a provision. On July 12, 2002, the U.S. obtained a one-year renewable exemption for UN peacekeepers in the context of the Security Council debate on the UN mission in Bosnia-Herzegovina. (The agreement was made retroactively effective to July 1, 2002.) On August 2, 2002, the last day before U.S. Congressional summer recess, President Bush signed the American Service Members' Protection Act, which authorizes the withdrawal of U.S. military assistance from certain non-NATO allies supporting the Court. The Act does, however, also include broad Presidential waivers.
U.S. pressure on countries to support its bilateral immunity agreements intensified in mid-August 2002 when U.S. officials, including Pierre-Richard Prosper, U.S. Ambassador at Large for War Crimes Issues, indicated that the US relationship with NATO would change should his government fail to achieve its goal to secure broad non- surrender agreements. It has furthermore been reported that States seeking entry into NATO may be refused entry on the basis of a failure to sign a bilateral immunity agreement, although U.S. officials have publicly denied this claim.
Q: Does a State that signs or ratifies a so-called "Article 98" agreement still have obligations to the ICC?
A: Yes. Different stakeholders may disagree as to whether or not the so-called Article 98 Agreements violate the terms of the Rome Statute and the scope of the Article as intended by its drafters. There is, however, little debate that Agreement signatories that are State Parties to the Rome Statute continue to have all prior obligations related to the ICC, except with regard to the specific terms of the Agreement. This includes the obligation to cooperate with the ICC in all investigations and prosecutions not involving the United States, and the opportunity to exercise national jurisdiction over the ICC crimes. Agreement signatories that are not yet States Parties to the Rome Statute may, and should be encouraged to, accede to the Rome Statute. It will be up to the ICC to decide whether or not the so-called Article 98 Agreements proposed by the United States are valid. Until such a determination is made, it is incumbent on States Parties to fulfill their obligations to the Court, and for Statute signatories to proceed with the accession process.
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