A Summary Of Government Responses To US ICC Request
The following governments have publicly indicated that they are unlikely to sign US "Article 98" agreements: Argentina,
Austria, Canada, Croatia, France, Germany, Namibia, the Netherlands, Norway, Sweden, Switzerland, Trinidad and Tobago,
Uganda and Yugoslavia. In addition to these statements at the national level, numerous discussions have taken place at
the international level as countries consider their response to the request to sign these agreements.
The Council of Europe -- a stronghold of support for the Court that counts 42 of its member states as signatories to the
Rome Statute, and 33 as States -- has taken the discussion of these agreements seriously and held a number of meetings
in this regard, which culminated in Resolution 1300 adopted by the Parliamentary Assembly of the Council of Europe on
September 25. The resolution declares the incompatibility with the ICC Statute of the agreements proposed by the US and
calls on all members and observer Sates of the Council of Europe not to enter into any bilateral 'exemption agreements'
and reminds states that Article 86 of the Rome Statute provides that the Court's jurisdiction applies equally to all
persons
(http://www.iccnow.org/html/coe20020925english.pdf).
The European Union (EU) principal organs - the Council, the Commission and the Parliament - devoted further effort to
the matter of the US requests for bilateral exemption agreements. The item was first discussed in the European Council
by the Political and Security Committee (PCS) on July 26. It was agreed that a common position amongst the members of
the European Union should be sought and that any resolution must not undermine the ICC. A Common Position of the Council
of Europe is expected to be announced on Monday, September 30.
In mid-August, the European Commission produced a legal analysis that concluded that any State Party to the ICC treaty
entering into such an agreement would, in so doing, "act against the object and purpose of the Statute and thereby
violate its general obligation to perform the obligations of the Statute in good faith." The legal analysis furthermore
highlighted that Article 98 of the Rome Statute only permits agreement between States Parties to the Rome Statute.
On September 5, the legal chiefs of the fifteen European Union members' Ministries of Foreign Affairs that comprise the
EU Council Working Group on Public International Law (COJUR) met in Brussels. That group likewise concluded that the US
request for blanket immunity for all Americans was unacceptable. The meeting of the COJUR further put forward three
recommendations for consideration in any non-surrender agreements:
- assurance of a fair trial in an alternate venue (the so called "no impunity" clause),
- extradition of only non-EU nationals, and
- no extradition that would apply only to a certain category of persons included in the US-proposed agreements, namely
the personnel for which the US is officially recognized as the "sending State".
On September 10, also in Brussels, a meeting of the ambassadors of the Political and Security Committee (PCS) further
discussed "Article 98" agreements. The group unanimously endorsed the conclusions of the September 5 COJUR meeting, and
all but one member of the intergovernmental body agreed that the EU Presidency could speak on behalf of its 15 member
states. NGOs learned from those privy to the negotiations that the opposition to an EU consensus came from the United
Kingdom. Were the UK to stand in the way of an EU Common Position on so-called "Article 98" agreements, it would be the
second time that country aligned itself with the United States on proposals considered to be contrary to the Rome
Statute, following the US-UK cooperation that lead to the adoption of Security Council Resolution 1422.
On September 25 in Strasbourg, the European Parliament heard statements by the President-in-Office of the EU Council
(Denmark) and the European Commissioner for External Relations, Mr. Chris Patten (UK). It was revealed in those
statements that EU member states are in agreement that US demands are inconsistent with states' obligations with regard
to the ICC, yet, with regard to the importance of transatlantic relations, the EU would not flatly reject the US
proposal. Negotiations, it was emphasized, are still ongoing and the EU is working hard to find a solution which will
meet US concerns while doing nothing to undermine the Court.
On September 26 the European Parliament passed a non-binding resolution expressing the opinion of the highest
democratically-elected body in Europe on these non-surrender agreements. The resolution calls on "governments and
parliaments of the EU Member States" and associated countries "to refrain from adopting any agreement which undermines
the effective implementation of the Rome Statute; considers in consequence that signing such an agreement is
incompatible with membership of the EU." The resolution further expresses the Parliament's belief that the currently
proposed agreements are illegal under the Vienna Convention on the Law of Treaties, which states that Parties to the
treaty must refrain from any action inconsistent with the object and purpose of that treaty. Last, but not least, the
resolution is the first official document of an international institution that "urges Member States, candidate countries
and all other associated countries to undertake an analysis of the legal implications of Security Council Resolution
1422, and calls for strong action against the renewal of the UN Security Council Resolution in July 2003".
A number of countries and intergovernmental bodies are awaiting the announcement of an EU Common Position on these
non-surrender agreements at a meeting on September 30. Members of the NGO Coalition for the ICC strongly encourage EU
governments to uphold the Common Position on the ICC June 2001, whose overarching goal is to ensure the full
effectiveness of the ICC and which, according to an August 13, 2002 European Commission record, makes it "inconceivable
to reconcile that commitment with any attempt to give positive consideration to the US proposal."
++++
Dear all,
This media tool kit provides a current and in-depth profile of the US pursuit of bilateral so-called "Article 98"
agreements -- dubbed 'impunity' agreements by NGOs and also know as 'exemption' or 'non-surrender' agreements -- that is
the most recent tactic of the US government to secure immunity from the jurisdiction of the International Criminal Court
(ICC or Court) for its nationals.
BACKGROUND
On May 6, 2002, US Under-Secretary General for Political Affairs Marc Grossman announced that the United States had
formally denounced its signature of the ICC's founding treaty - the Rome Statute - in a letter from US Under Secretary
of State for Arms Control and International Security John Bolton to UN Secretary General Kofi Annan. Since that time,
the US has waged a multi-pronged attack on the Court that has included the August 2, 2002 signature of the American
Servicemembers' Protection Act (see CICC press release at http://www.iccnow.org/html/pressrelease20020726.pdf) by
President Bush on at the domestic level, and the July 12, 2002 adoption of UN Security Council Resolution 1422 (see CICC
press release at http://www.iccnow.org/html/PressAntiICCProposalPasseSC.pdf) as well as the ongoing pursuit of so-called
"Article 98" agreements at the international level.
The NGO Coalition for the ICC has received numerous analyses from government, NGO and independent legal experts which
unanimously conclude that these US bilateral agreements are contrary to the Rome Statute and are not permitted under
Article 98 of that treaty, as the agreements have been billed. Legal experts with the NGO Coalition for the
International Criminal Court are disappointed by the Bush administration decision to not only formally disengage the US
from supporting the Rome Statute but also to actively undermine the Court. They condemn US strong-arm tactics, such as
threats of economic sanctions and the withdrawal of military support, to coerce countries into signing these accords.
NGO experts furthermore point out that many governments would be in violation of national extradition laws if they
signed such an agreement.
TOOL KIT RESOURCES
This 'tool kit' contains detailed information about the US so-called "Article 98" agreements from a number of sources.
These resources are divided into the following sections:
1) NGO legal experts available for comment
2) A list of countries to have signed agreements
3) A summary of other government responses
4) Media resources and strategy documents created by the Coalition for the ICC
5) NGO statements to governments
6) Public statements from governmental and intergovernmental officials
7) NGO and government statements at the first session of the Assembly of States Parties meeting
8) A US proposed template of "Article 98" agreements
RESOURCES
1) LEGAL EXPERTS ON NON-SURRENDER AGREEMENTS:
- Richard Dicker, Human Rights Watch / New York, NY (English)
- Fiona McKay, Lawyers' Committee for Human Rights / New York, NY (English)
- Chris Hall, Amnesty International / London, England (English)
- Jonathan O'Donohue, Amnesty International / London, England (English)
- David Donald-Cattin, Parliamentarians for Global Action / Rome, Italy (English, Italian, Spanish)
- Sidiki Kaba, FIDH / Paris, France (French, Wolof, English)
- Jeanne Sulzer, FIDH / Paris, France (French, English)
- Hugo Relva, Amnesty International / Buenos Aires, Argentina (Spanish, English)
- Irune Aguirrezebal, Coalition for the ICC / Brussels, Belgium (English, French, Spanish)
- John Washburn, UNA-USA / New York, USA (English)
- Heather Hamilton, WICC / Washington, DC, USA (English)
- Pascale Kambale, Human Rights Watch / Washington, DC, USA (English, French, Lingala, Swahili)
- Asma Khader, Arab Resource Center / Amman, Jordan (English, Arabic)
- Nasser Amin, Arab Coalition for the ICC / Cairo, Egypt (English, Arabic)
- Evelyn Serrano, Coalition for the ICC / Manila, Phillippines (English,Tagalog)
- Matthias Neuner, International Criminal Law Society / Germany (English, German)
- William Pace, Convenor of the CICC / New York, USA (English)
2) SIGNATORIES OF "ARTICLE 98" AGREEMENTS
As of Wednesday, September 25, 2002, the following countries have signed "Article 98" agreements. Countries marked with
an asterisk have indicated that these agreements must be approved at the parliamentary level before they become binding;
other countries will also require parliamentary approval.
Romania*
Israel
East Timor*
Tajikistan
Dominican Republic
Uzbekistan
Marshall Islands
Palau
Mauritania
Honduras
Micronesia
Afghanistan
3) A SUMMARY OF GOVERNMENT RESPONSES
The following governments have publicly indicated that they are unlikely to sign US "Article 98" agreements: Argentina,
Austria, Canada, Croatia, France, Germany, Namibia, the Netherlands, Norway, Sweden, Switzerland, Trinidad and Tobago,
Uganda and Yugoslavia. In addition to these statements at the national level, numerous discussions have taken place at
the international level as countries consider their response to the request to sign these agreements.
The Council of Europe -- a stronghold of support for the Court that counts 42 of its member states as signatories to the
Rome Statute, and 33 as States -- has taken the discussion of these agreements seriously and held a number of meetings
in this regard, which culminated in Resolution 1300 adopted by the Parliamentary Assembly of the Council of Europe on
September 25. The resolution declares the incompatibility with the ICC Statute of the agreements proposed by the US and
calls on all members and observer Sates of the Council of Europe not to enter into any bilateral 'exemption agreements'
and reminds states that Article 86 of the Rome Statute provides that the Court's jurisdiction applies equally to all
persons
(http://www.iccnow.org/html/coe20020925english.pdf).
The European Union (EU) principal organs - the Council, the Commission and the Parliament - devoted further effort to
the matter of the US requests for bilateral exemption agreements. The item was first discussed in the European Council
by the Political and Security Committee (PCS) on July 26. It was agreed that a common position amongst the members of
the European Union should be sought and that any resolution must not undermine the ICC. A Common Position of the Council
of Europe is expected to be announced on Monday, September 30.
In mid-August, the European Commission produced a legal analysis that concluded that any State Party to the ICC treaty
entering into such an agreement would, in so doing, "act against the object and purpose of the Statute and thereby
violate its general obligation to perform the obligations of the Statute in good faith." The legal analysis furthermore
highlighted that Article 98 of the Rome Statute only permits agreement between States Parties to the Rome Statute.
On September 5, the legal chiefs of the fifteen European Union members' Ministries of Foreign Affairs that comprise the
EU Council Working Group on Public International Law (COJUR) met in Brussels. That group likewise concluded that the US
request for blanket immunity for all Americans was unacceptable. The meeting of the COJUR further put forward three
recommendations for consideration in any non-surrender agreements:
- assurance of a fair trial in an alternate venue (the so called "no impunity" clause),
- extradition of only non-EU nationals, and
- no extradition that would apply only to a certain category of persons included in the US-proposed agreements, namely
the personnel for which the US is officially recognized as the "sending State".
On September 10, also in Brussels, a meeting of the ambassadors of the Political and Security Committee (PCS) further
discussed "Article 98" agreements. The group unanimously endorsed the conclusions of the September 5 COJUR meeting, and
all but one member of the intergovernmental body agreed that the EU Presidency could speak on behalf of its 15 member
states. NGOs learned from those privy to the negotiations that the opposition to an EU consensus came from the United
Kingdom. Were the UK to stand in the way of an EU Common Position on so-called "Article 98" agreements, it would be the
second time that country aligned itself with the United States on proposals considered to be contrary to the Rome
Statute, following the US-UK cooperation that lead to the adoption of Security Council Resolution 1422.
On September 25 in Strasbourg, the European Parliament heard statements by the President-in-Office of the EU Council
(Denmark) and the European Commissioner for External Relations, Mr. Chris Patten (UK). It was revealed in those
statements that EU member states are in agreement that US demands are inconsistent with states' obligations with regard
to the ICC, yet, with regard to the importance of transatlantic relations, the EU would not flatly reject the US
proposal. Negotiations, it was emphasized, are still ongoing and the EU is working hard to find a solution which will
meet US concerns while doing nothing to undermine the Court.
On September 26 the European Parliament passed a non-binding resolution expressing the opinion of the highest
democratically-elected body in Europe on these non-surrender agreements. The resolution calls on "governments and
parliaments of the EU Member States" and associated countries "to refrain from adopting any agreement which undermines
the effective implementation of the Rome Statute; considers in consequence that signing such an agreement is
incompatible with membership of the EU." The resolution further expresses the Parliament's belief that the currently
proposed agreements are illegal under the Vienna Convention on the Law of Treaties, which states that Parties to the
treaty must refrain from any action inconsistent with the object and purpose of that treaty. Last, but not least, the
resolution is the first official document of an international institution that "urges Member States, candidate countries
and all other associated countries to undertake an analysis of the legal implications of Security Council Resolution
1422, and calls for strong action against the renewal of the UN Security Council Resolution in July 2003".
A number of countries and intergovernmental bodies are awaiting the announcement of an EU Common Position on these
non-surrender agreements at a meeting on September 30. Members of the NGO Coalition for the ICC strongly encourage EU
governments to uphold the Common Position on the ICC June 2001, whose overarching goal is to ensure the full
effectiveness of the ICC and which, according to an August 13, 2002 European Commission record, makes it "inconceivable
to reconcile that commitment with any attempt to give positive consideration to the US proposal."
4) MEDIA RESOURCES & STRATEGY DOCUMENTS CREATED BY THE COALITION FOR THE ICC
Q on US So-Called "Article 98" Agreements:
http://www.iccnow.org/html/pressarticle9820020903.pdf
CICC Memorandum to Members and Governments Regarding "Article 98" Agreements:
http://www.iccnow.org/html/ciccart98memo20020823.pdf
CICC Press Release on the Use of Economic Sanctions to Secure Bilateral Agreements:
http://www.iccnow.org/html/pressrelease20020813.pdf
5) NGO STATEMENTS TO GOVERNMENTS & ANALYSES REGARDING "ARTICLE 98" AGREEMENTS
CICC Letter to Governments of States Parties:
http://www.iccnow.org/html/cicclettersp20020813.pdf
CICC Letter to Governments of Non-States Parties:
http://www.iccnow.org/html/ciccletternonsp20020823.pdf
Parliamentarians for Global Action's Analysis of "Article 98" Agreements and Model Parliamentary Resolutions to preserve
the Integrity of the ICC
http://www.iccnow.org/html/pga200209.pdf
Amnesty International:
http://www.iccnow.org/html/aiusimpunitysummary200208.pdf
Fédération Internationale des Ligues des Droits de l'Homme (FIDH):
http://www.iccnow.org/html/fidh200209english.pdf
Human Rights Watch:
http://www.iccnow.org/html/hrw20020802.pdf
6) PUBLIC STATEMENTS OF GOVERNMENTAL & INTERGOVERNMENTAL OFFICIALS:
- Reference to the ICC in the new National Security Strategy of the United States of America (p. 31):
http://www.whitehouse.gov/nsc/nss.pdf
Excerpt: "We will take the actions necessary to ensure that our efforts to meet our global security commitments and
protect Americans are not impaired by the potential for investigations, inquiry, or prosecution by the International
Criminal court (ICC), whose jurisdiction does not extend to Americans and which we do not accept. We will work together
with other nations to avoid complications in our military operations and cooperation, through such mechanisms as
multilateral and bilateral agreements that will protect US nationals from the ICC. We will implement fully the American
Servicemembers Protection Act, whose provisions are intended to ensure and enhance the protection of US personnel and
officials."
- Wall Street Journal / September 20, 2002 / COMMENTARY Original Intent at the Global Criminal Court By DAVID J.
SCHEFFER, Former Ambassador at Large for War Crimes Issues and President of the United Nations Association for the USA
http://groups.yahoo.com/group/icc-info/message/2542
Excerpt: "As the Clinton administration's chief negotiator of the treaty on the International Criminal Court, I have
lost my patience with the largely Euro-American debate about special agreements designed to protect American suspects
from surrender to the court. These agreements are permitted by Article 98 of the treaty for a reason, but they also have
their limitations."
- Financial Times / September 24, 2002 / Comment & Analysis: Letters International relations depend on approaching concerns multilaterally By Dr. Palitha Kohona, Chief of
the UN Treaty Section
http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory=StoryFT=1031119588806=1012571727279
Excerpt: "It is only when a country refuses to join a multilateral initiative for its own reasons or breaches its
obligations under the multilateral treaty framework that we tend to hear about it. Thus our attention is constantly
drawn to the refusal of the US to ratify the Kyoto protocol or of its opposition to the Rome Statute of the
International Criminal Court.
Recent history demonstrates that multilateral approaches to address common concerns, with objectives carefully defined,
offer a higher level of comfort to the international community, especially to weaker members, and the general prospect
of success, despite certain drawbacks, including often slower rates of progress towards established goals. They
encourage a sense of commitment and participation from all states to a cause and a lower level of opposition. Very
importantly, they contribute to enhancing the international rule of law and the progress towards a global relations
system based less on brute arbitrary force."
7) NGO & GOVERNMENT STATEMENTS ON "ARTICLE 98" AGREEMENTS AT THE ASP
Statements on behalf of a number of NGOs and governments can be found in the documents section of the CICC web site at
http://www.iccnow.org/html/new.html#impunity.
8) PROPOSED TEMPLATE OF US "ARTICLE 98" AGREEMENTS
http://www.iccnow.org/html/USArticle98Agreement1Aug02.pdf
For further information or for assistance in reaching a legal expert for interview, please do not hesitate to contact
me through the information provided below.
Best regards,
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
Visit our online press room at http://www.iccnow.org/html/press.html. Visitez notre site en Français á
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