U.S. So-Called "Article 98" Agreements
Questions and Answers September 4, 2002
U.S. SO-CALLED "ARTICLE 98" AGREEMENTS
In capitals around the world, US government representatives are seeking so-called "Article 98" agreements in an effort
to shield US citizens from prosecution by the newly created International Criminal Court (ICC or Court). Already 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 US is misusing Article 98 of the Rome Statute of the International Criminal
Court, the provision of the ICC's governing treaty being evoked to justify seeking such accords. Experts furthermore
contend that if countries that have ratified the Rome Statute enter into such agreements, they would breach their
obligations under international law.
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 Pierre-Richard Prosper, US Ambassador-at-Large for War
Crimes Issues, that the US would respect countries that supported the ICC and that it would not declare war against the
Court, the US has since that time waged a multi-pronged attack on the treaty and those countries 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. At a special plenary, approximately 120 countries unanimously condemed
this US effort. In a historically unique occurrence, UN Secretary-General Kofi Annan sent a letter to US Secretary of
State Colin Powell urging him to rethink the US position and emphasizing that adoption of the US proposal would go
against international law, the UN Charter and the Rome Statute. On 12 July 2002, following intense US diplomatic
pressure applied at the highest levels, the US succeeded in pushing through a negotiated version of its proposal with
the adoption of Resolution 1422. Resolution 1422 prevents 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. Despite this 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 have been proposed. These versions 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. The intent 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 from 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), that bill 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
discussed this issue in a meeting that took place on September 4 in Copenhagen and concluded with a strong statement
against blanket immunity for all Americans.
For more details, please contact the CICC. A memorandum further detailing analysis of the so-called "Article 98"
agreements and a database of countries approached is available, as are interview opportunities with experts on this
issue.
About the Coalition for the International Criminal Court The Coalition for the International Criminal Court (CICC) is a
network of over 1,000 civil society organizations that support the creation of a permanent, fair and independent
International Criminal Court (ICC). Established in 1995, the CICC is the leading source of information regarding the ICC
and the regional organizations that support its formation. For more information about the mission of the CICC and its
member organizations, please visit http://www.iccnow.org
60+ States Discuss "Article 98" Agreements
Experts Available for Comment on Informal Meeting on U.S. So-Called "Article 98" Agreements during Assembly of States
Parties
Who: Sidiki Kaba, President, Fédération Internationale des Ligues des Droits de L'Homme
Christopher Hall, Senior Counsel, Amnesty International
Richard Dicker, International Justice Program Director, Human Rights Watch
William Pace, Convenor of the NGO Coalition for the ICC
Heather Hamilton, Coordinator, Washington Working Group on the ICC
Irune Quijera-Aguirrezabal, European Coordinator, NGO Coalition for the ICC
What: As part of the United States effort to secure broad-reaching exemptions from the jurisdiction of the newly-formed
International Criminal Court (ICC), the US is seeking so-called "Article 98" agreements in capitals around the world.
This afternoon, on the third day of the historic first meeting of Assembly of States Parties (ASP) - the governing body
of the ICC - at least sixty countries met in a closed, informal session to discuss concerns with this most recent US
effort.
On the heels of the passage of Security Council Resolution 1422, in which the United States secured immunity for
peacekeepers from the jurisdiction of the Court for a renewable one-year period, today's meeting carried significant
symbolic weight and served as an indication that countries around the world are uneasy with U.S. anti-ICC tactics and
wish to engage in dialogue before reaching a firm position.
Who: According to sources present in the meeting, nine countries representing all regions of the world spoke on this
subject. Interventions primarily served to enumerate countries' concerns about the so-called "Article 98" agreements
being sought by the United States government and to express an unwillingness to be rushed to signature. Meeting
attendees also reported that governments are eager to ensure that the pressure to respond to the US government not
divert attention from the work of the ASP. Reactions were preliminary responses to this US initiative and served as a
means for governments to communicate these initial analyses to one another.
Sources said that the Danish, as the current European Union President, made a strong statement that the US proposed
agreements were incompatible with the Court's founding treaty, the Rome Statute, and that, despite the European Union's
commitment to defending the integrity of the Statute, it would continue negotiations with the United States because of
the importance of that diplomatic relationship.
Sources also said that several countries that had not ratified the Rome Statute and, thus, were not members of the ASP,
also attended the meeting and said that they would not consider signing an "Article 98" agreement before ratifying the
ICC treaty.
How: The above non-governmental organization experts on the ICC can be reached for comment about this meeting and the US
effort to secure exemption from the Court.
# # #
Adele Waugaman, Media Liaison Coalition for the International Criminal Court
777 UN Plaza, 3rd Floor, New York NY 10017 USA T:+ 212.687.2176 F:+ 212.599.1332 E: ciccmedia@iccnow.org