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U.S. and “ARTICLE 98” AGREEMENTS
Questions and Answers
Why is the US seeking "Article 98" agreements?
The pursuit of so-called "Article 98" agreements is part of a long history of US efforts to gain immunity for its citizens from the ICC because it believes the Court will be used as a stage for political prosecutions, despite ample safeguards included in the Rome Statute to protect against such an event. From 1995 through 2000, the US government supported the establishment of an ICC, yet one that could be controlled through the Security Council or provided exemption from prosecution of US 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. Despite claims by US Ambassador-at-Large for War Crimes Issues, Pierre-Richard Prosper, that the US would not declare war against the Court and respect other countries that supported the ICC, the US has since that time, waged a multi-pronged attack on the treaty and those supporting it. In June the US government threatened to shut down all UN peacekeeping operations unless the Security Council adopted a resolution providing immunity for US soldiers. On 12 July 2002, the US pushed through a Security Council resolution preventing the ICC from proceeding with investigations or prosecutions of government officials or military personnel of non-States Parties contributing to UN peacekeeping operations, for a renewable period of one year. The resolution's adoption, in spite of statements on behalf of nearly 120 countries and from Secretary-General Kofi Annan emphasizing that passing such a resolution would violate international law, the UN Charter and the Rome Statute, was largely a result of intense US diplomatic pressure applied at the highest levels. Despite this US gain, US officials announced that the US government would seek bilateral agreements worldwide in attempts to gain permanent exemption from the ICC on a country by country basis.
What is Article 98 of the Rome Statute?
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. There was a recognition of the fact that nations had previous 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 own nationals in a manner that is consistent with the Statute's complementarity principle, which also allows a country the first opportunity to investigate crimes alleged against its own nationals.
What are the so-called "Article 98" agreements being sought by the US?
To date, several versions of these bilateral agreements that have been proposed. These version differ on the basis of whether or not the country approached by the US is a signatory or State Party to the Rome Statute. One version of the agreement is reciprocal and affirms that both parties to the agreement would not surrender a broad range of each other's 'persons' to the ICC without first gaining consent from the other. A second version is non-reciprocal and would only allow extradition to the ICC of US 'persons' if the US consented. The variation of this agreement intended for states that have neither signed nor ratified the Rome Statute includes a paragraph requiring those states not to cooperate with efforts of third-party states to surrender persons to the ICC.
Why do experts believe "Article 98" agreements are in contravention of international law?
Many governmental, legal and non-governmental experts have concluded that the bilateral agreements being sought by the US government are contrary to international law and the Rome Statute for the following reasons:
The US interpretation of Article 98 is contrary to the overall purpose of the ICC. The US government's so-called "Article 98" agreements have been constituted solely for the purpose of providing individuals or groups of individuals with immunity from the ICC. Furthermore, the agreements do not ensure that the US will investigate and prosecute potential international crimes. These purposes of US "Article 98" agreements is contrary to the overall purpose of the ICC, which is to ensure that the gravest crimes of international concern, including genocide, crimes against humanity and war crimes, be addressed at the national level or by an international judicial body when states are unable or unwilling to investigate and prosecute genuinely. The wide support among members of the international community for this institution is clearly underscored by the 139 states that signed the Rome Statute and the 78 countries that ratified it. Article 98 was not intended to allow agreements that would preclude the possibility of a trial by the ICC where the sending state did not exercise jurisdiction over its own nationals. Indeed, Article 27 of the Rome Statute provides that no one is immune for the crimes under its jurisdiction.
The US so-called "Article 98" agreements are also contrary to the intention of the drafters. Delegates involved in the negotiation of Article 98 of the Statute indicate that this Article was not intended to allow the conclusion of new agreements based on Article 98, but rather to prevent legal conflicts which might arise because of existing agreements, or new agreements based on existing precedent, such as new SOFAs.
The US so-called "Article 98" agreements are contrary to the language of Article 98. They seek to amend the terms of the treaty by effectively deleting the concept of the sending state from Article 98(2); this term indicated that the language of Article 98(2) is intended to cover only SOFAs, Status of Mission Agreements (SOMAs) and other similar agreements. SOFAs and SOMAs reflect a division of responsibility for a limited class of persons deliberately sent from one country to another and carefully addresses how any crimes they may commit should be addressed.
By contrast, the US-proposed "Article 98" 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 US who works or has worked for the US 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.
What are the possible ramifications of the signature of so-called "Article 98" agreements?
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 them 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 "Article 98" agreements would allow.
Contrary to assurances from high-level US officials, the US 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 US government is again using coercive tactics to obtain immunity from the jurisdiction of the ICC for its nationals. US officials have publicly threatened economic sanctions such as the termination of military assistance if countries do not sign the agreement. While media reports have emphasized that the US Congress has authorized the threat of such sanctions through the American Servicemembers Protection Act (ASPA), the ASPA also provides the US President with the right to waive this provision.
Who has been approached with "Article 98" agreements and with what result?
As of September 3, 2002, Romania, Israel, East Timor and Tajikistan are the only countries reported to have signed such agreements. Many of these signed agreements will now have to be ratified by their respective parliaments. Reports indicate that many other countries from around the world, including close allies of the US government and those seeking membership in NATO, have been approached, and that the pressure to sign an agreement is enormous. Several countries, including members of the European Union, have already conducted legal analyses and concluded that the proposed agreements are contrary to international law.
How does this effort tie in with the larger US offensive against the Court?
A number of relevant foreign policy directives from Washington have paved the way for the US effort to gain exemption for its citizens from the ICC. On May 6, 2002, Marc Grossman, US Under Secretary of State for Political Affairs, announced that the current administration no longer considered itself bound by the US signature of the Rome Statute and did not intend to ratify the treaty. In May 2002, the US 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. (The US has now succeeded in getting East Timor to sign a so-called "Article 98" agreement.) On 12 July, the US obtained a one-year renewal exemption in the context of the Security Council debate on the UN mission in Bosnia-Herzegovina as indicated above. On 2 August, the last day before US Congressional summer recess, President Bush signed the American Servicemembers' Protection Act, which authorizes the withdrawal of US military assistance from certain non-NATO allies supporting the Court, but also includes broad Presidential waivers.
US pressure on countries to support its so-called "Article 98" agreements intensified in mid-August 2002 when US officials, including Pierre-Richard Prosper, US Ambassador at Large for War Crimes Issues, indicated that the US relationship with NATO would change should the US government fail to achieve its goal to secure broad non-extradition 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 so-called "Article 98" agreement, although US officials are publicly denying this. The European Union is expected to discuss this issue in a meeting to take place on September 4 in Copenhagen.
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