Global Policy Forum

Leading European states appear to have rebuffed the latest attempt by the United States to secure exemption for its citizens from the new International Criminal Court. A recent trip by the State Department official who is handling bilateral negotiations on the ICC, Marisa Lino, has failed to persuade European governments to sign agreements with the US that would guarantee that American citizens would not be handed over to the court.

At the heart of the dispute with the Europeans is an issue that is apparently of central importance in the Bush administration's opposition to the court. This is the prospect that former government officials, travelling in a private capacity, might be called before the court as defendants or witnesses.

You could call it the Kissinger Factor, since former Secretary of State Henry Kissinger is an emblematic figure for many of those who oppose the court – as indeed he is also for some of the court's most enthusiastic backers. (Kissinger himself could not actually be indicted by the ICC, which only has jurisdiction over actions that take place after July 1 of this year.

It is the Kissingers of tomorrow who are at issue here.)Under Article 98 of the ICC statute, states are not required to hand suspects over to the court if they have signed an exemption agreement with the suspect's country of origin. This article was framed primarily to take account of agreements governing the deployment of troops overseas, which routinely include a provision that they should be returned home if they accused of any crime.

However the United States has used it as the basis for a campaign to press countries to sign more sweeping immunity agreements – Article 98 agreements, as they have become known – under which no US citizen would be delivered into the court's clutches.So far, the United States has signed Article 98 agreements with fourteen countries – El Salvador, Afghanistan, the Dominican Republic, East Timor, Gambia, Honduras, Israel, the Marshall Islands, Mauritania, Micronesia, Palau, Romania, Tajikistan and Uzbekistan.

Government Officials Are Key US Concern

Under the template drawn up for these agreements, those who may not be handed over to the court are listed as "current or former Government officials, employees (including contractors), or military personnel or nationals" of the United States. The order in which they are listed seems to confirm the suspicion that government officials are the group about whom the Bush administration is most urgently concerned.In any case, the administration official who has spearheaded opposition to the court this week made his thinking on the subject clear.

John Bolton, Undersecretary of State for Arms Control and International Security, said in a speech on November 14 to the Federalist Society that if officials had to worry constantly about the danger of being indicted, "over time that's going to have an effect on your decision-making.'' ``If you're Henry Kissinger," Bolton continued, "and every time you to go this European country or that European country you have to worry if you're going to be served with a subpoena, it has an effect.

"Bolton said that the United States was committed to investigate and, if necessary, prosecute serious and credible allegations of war crimes made against US citizens. But he claimed there was a real danger that the United States would be accused of war crimes "for legitimate but controversial uses of force to protect world peace."

Although the United States has not ratified the statute of the ICC, the court could still have jurisdiction over cases in which US officials were held to be responsible for criminal acts committed on the territory of states that are parties to the court.

The European Guiding Principles

In the face of the US campaign for bilateral Article 98 agreements, the countries of the European Union decided earlier this year to try to come up with a common position. While some countries (notably Germany) pushed for the Europeans to refuse to sign any agreements, it soon became clear that Britain and Italy, among other countries, would not go along with such a hard-line stance.

However, the Europeans did agree a common set of guidelines, announced on September 30, that are supposed to regulate any agreement they might sign with the United States.

The European Union announcement was greeted by many human rights organizations as a climb-down, but in fact the guidelines would clearly forbid the kind of all-embracing immunity agreements that the US is seeking. Most importantly, the guidelines say that any agreement should only cover people who have been sent abroad in an official capacity – in the legal language of the EU document, "only persons present on the territory of a requested State because they have been sent by a sending State". This would cover military personnel, special envoys and serving officials, but would seem to exclude Kissinger-type figures – former government officials travelling in a private capacity.

The guidelines also insist that any agreement should ensure that suspects sought by the ICC but returned to the United States not enjoy impunity – in other words, the United States would have to give some kind of guarantee to investigate the crimes in question itself, and prosecute them if appropriate.According to European government lawyers, only agreements that meet these criteria are compatible with the statute of the International Criminal Court.

Responding to the EU guidelines, the State Department Spokesman Richard Boucher said on October 1 that the United States would continue to try to conclude bilateral agreements with European countries that met all US requirements. "Some elements in the guidelines section of the ministers' decision we do not agree with," he said, "and we'll continue to pursue these matters in the bilateral discussions that we expect to have."

Last month, the State Department envoy Marisa Lino visited a number of European countries, including Britain, Italy, and Spain (which have been the most sympathetic to the US position) to make the administration's case. But it appears that she has not had any success in persuading these governments to depart from the agreed guiding principles, and no agreements have been announced.

The ICC Interprets Its Own Statute

Another consideration, which has not been picked up in the press coverage of the issue so far, is that the ICC will ultimately be able to rule on whether Article 98 agreements are compatible with its statute, since it has the final say on the interpretation of the statute. The relevant article of the statute uses language similar to the EU guiding principles (it talks of "agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court"), which seems only to cover a limited group of military personnel and government officials. The court would be likely to rule that when it comes to private citizens, sweeping bilateral agreements signed with the US do not take precedence over the obligation to hand people over to the ICC.

In other words, when a US national sought by the court is not travelling in an official capacity, the ICC might require the country where he is present to surrender him, even though it had signed an immunity agreement with the United States.

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