Global Policy Forum

By Irune Aguirrezabal Quijera

As part of the United States' campaign to exclude its citizens and military personnel from the jurisdiction of the ICC, the Bush administration has been approaching countries around the world seeking to conclude Bilateral Impunity Agreements (BIAs), or so called "Article 98" agreements. These agreements prohibit the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and US employees (including contractors) and nationals. These agreements, which in some cases are reciprocal, do not include an obligation by the US to subject those persons to investigation and/or prosecution.

While these US-proposed bilateral agreements are purportedly based on Art. 98.2 of the Rome Statute, they are, in fact, a clear violation of the negotiators' intentions and go far beyond the letter and spirit of that article. Drafters of the Statute did not envisage situations of impunity, but sought to create a system to end impunity for the gravest crimes, in accordance with the principle of complementarity. As David Sheffer, former US ambassador for war crimes and a chief negotiator at the Rome Statute drafting conference, said in the Wall Street Journal published on 20 September 2002, "the original intent of the Art. 98 agreements was to ensure that Status of Forces Agreements (SOFAs) would not be compromised and that Americans on official duty could be specially covered by agreements that fit in the terms of the article".

Approximately 50 states have signed bilateral immunity agreements with the US to date, but few states have ratified these accords. Most of those states that have concluded an agreement have done so under strong US pressure. In some instances, these bilateral agreements have been linked to the American Servicemember´s Protection Act (ASPA), a US law which authorizes the withdrawal of US military assistance from States Parties to the ICC that did not conclude a BIA before 1 July 2003. NATO members, non-NATO allies (Egypt, Jordan, Israel, Australia, Argentina, New Zealand, The Republic of Korea, and Japan) and Taiwan are specifically exempt from this legislation, which is targeted at States Parties to the Rome Statute. Provisions in the ASPA also allow President Bush to issue waivers to those countries for US national security interests.

However, the Bush administration has been exercising unconscionable diplomatic tactics that go beyond the provisions of the ASPA: threatening poor countries in all regions of the world to violate their international obligations or otherwise lose vital US financial and political support. US Assistant Secretary of State Stephen Rademaker has reportedly threatened to deny benefits of the New Horizons program, which includes funds for hurricane relief and rural dentistry and veterinary efforts, to countries in the Caribbean Community. According to a senior official in the Niger Ministry of Foreign Affairs, the US has threatened to suspend cooperative development projects if Niger does not sign a bilateral immunity agreement. US Ambassador to Bahamas Richard Blankenship has publicly warned that if the Bahamas did not support the US position on the ICC, a significant amount of aid would be withheld, including aid for paving and lighting an airport runway. In the case of Bulgaria, loss of military aid has been linked to NATO membership. US Ambassador in Croatia Lawrence Rossin even published a letter in the Zagreb press warning that Croatia would lose $19 million in military aid unless they sign an immunity deal.

Despite this intense pressure, several states have resisted signing a BIA, and on July 1, the Bush administration announced its intention to impose its threat to cut off military aid to 35 States Parties, including Brazil, Bulgaria, Central African Republic, Colombia, Croatia, Estonia, Fiji, Peru, Slovenia, South Africa, Tanzania, Trinidad and Tobago, among others. Programs affected included foreign military financing or international military education and training.

On the same day, President Bush issued a White House memorandum in which 22 states were granted waivers from ASPA for different periods of time, in order to allow countries that have signed BIAs to ratify the agreements in Parliament. A number of states received a four-month waiver (as they reportedly signed a BIA before May 1), and several states that signed an agreement after May 1 have received a six-month waiver. A select number of states received a waiver for an indefinite period of time. The Coalition lauds those states that have resisted signing BIAs and urges states to continue to uphold the integrity of the Rome Statute and international law. NGOs and intergovernmental bodies have been denouncing these agreements as unlawful and a violation of the Rome Statute and international law, by permitting impunity for the worst crimes against humanity.

The European Union, for example, issued the General Affairs Council Conclusions and "guiding principles" stating that the US-proposed agreements were clearly inconsistent with the Rome Statute as well as with obligations arising from other international treaties and setting benchmarks to which all agreements (including agreements already concluded) should comply. On the 16 June 2003, the Council of the European Union approved a new Common Position on the ICC, which called on EU member states to prevent the conclusion of BIAs by committing to: "continue, as appropriate, to draw the attention of third States to the Council Conclusions of 30 September 2002 on the International Criminal Court and to the EU Guiding Principles annexed thereto, with regard to proposals for agreements or arrangements concerning conditions for the surrender of persons to the Court." On June 25, the Parliamentary Assembly of the Council of Europe subsequently adopted Resolution 1336, "Threats to the International Criminal Court," condemning the agreements as a violation of the Rome Statute and international law and supporting those states that have resisted US pressure to sign BIAs. The Caribbean Community (CARICOM) has also issued a statement on US-proposed bilateral accords, reaffirming "their strong support for the principles and purposes of the ICC" and condeming the US action to withhold military assistance from the 6 CARICOM countries that are States Parties to the ICC. Indeed, the United States is isolated in its aggressive, disrespectful and unfair campaign aimed at undermining the authority and effectiveness of the ICC. Victims and the world community view the US as a hegemonic super power that refuses to be under the rule of law, and yet imposes its own order to other states and citizens. The US' intention to create a two-tier justice system, one for the rest of the world and one for Americans is just unacceptable. The US cannot be above the law. In a recent article in Foreign Affairs (May/June 2003), Michael J. Glennon explains that James Madison was confronted with the same dilemma when drafting the Constitution. "The question was why the powerful should obey the law. Madison answer was that the incentive lies in an assessment of future circumstances, in the unnerving possibility that the strong may one day become weak and then need the protection of the law... Hegemony thus sits in tension with the principle of equality."

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