This House would pull out of the Article 98 Agreements that prevent US soldiers from being sent to t

The European states have signed and ratified the ICC Statute and should honour it, to do otherwise makes a mockery of the ICC which those states supported throughout its genesis and at least claim to continue to support.

Article 98(2) was only intended to be a factor where there are other agreements such as status of forces agreements (an agreement entered in to between two states, one having military forces in the other voluntarily, such as British troops in Germany). It was not meant as a broad-brush way for states being able to grant selective immunity to citizens of non-member states who have committed genocide or crimes against humanity inside the jurisdiction of an ICC member state.

Signing an Article 98 Agreement is at best accepting foreign instigation of the abuse of process of a treaty. At worst it is accepting an illegal attempt at circumventing the treaty. 

The text of the Rome Statute is clear. Article 98(2) is unspecific as to the variety of international agreements that it covers, unlike the narrower Article 98(1) covering diplomatic immunity.

Article 98 Agreements are a tool that is a legitimate method of the US ensuring that US citizens are not subject to trial and punishment by a court which the United States is not a part of. This would run against the principle that a treaty only affects states that have signed and ratified it, rather than any others.

The Bilateral Immunity Agreements that these states have entered in to undermine the court that these states have signed up to. BIAs invalidate the intention for the ICC that any person who is subject to the jurisdiction of the court (which only triggers when an individual is a citizen of a state that has ratified the Rome Statute, or in the territory of a Rome Statute state) and commits the horrific acts covered by the Rome Statute should be brought to trial by providing a get out clause for the powerful. A proliferation in BIAs could potentially render the ICC a court that can only try nationals of small states that do not have the leverage to get others to agree to BIAs, already the ICC is accused of bias in putting Africans on trial and ignoring the rest of the world, such agreements make this worse.[1] BIAs by one state, the United States, creates a precedent for other states to use and as they do so the field that is available for international criminal justice will become smaller and smaller.

[1] Kersten, Mark, “African and the ICC: Some Unsolicited Advice”, Africa at LSE, 28 May 2013, http://blogs.lse.ac.uk/africaatlse/2013/05/28/africa-and-the-icc-some-unsolicited-advice/

While they undermine the court, they are an inevitable quid pro quo of part of diplomatic relations with the US, the last remaining superpower. While impunity is not ideal, it is better than not signing and taking part in international criminal justice at all. Creating BIAs does not mean that the countries in question will absolve their own citizens of wrongdoing instead they are likely to be tried at home and in some cases may still be handed over to the ICC.

The United States has been accused of using bullying tactics in the pursuit of gaining Article 98 Agreements by, amongst others, Human Rights Watch[1].

This has included significant reductions in non-military, development aid, including to countries such as South Africa, the Bahamas[2] and Peru[3], as well as making threats to accession to NATO in the case of Croatia.[4]

By signing up to Article 98 Agreements, European nations help contribute to a climate where smaller nations can also be strong-armed in to harming the International Criminal Court by signing them, even if they were not subject to blackmailed in to it themselves.

[1] Roth, Kenneth, “Letter to the US Secretary of State Colin Powell on Bully Tactics against the International Criminal Court”, Human Rights Watch, 2003 http://www.hrw.org/en/news/2003/06/29/letter-colin-powell-us-bully-tactics-against-international-criminal-court

[2] Roth, Letter to Colin Powell, 2003

[3] Keppler, Elise, “The United States and the International Criminal Court: The Bush Administration’s Approach and a Way Forward Under the Obama Administration”, Berkeley Journal of International Law, 2009, 2, p12, http://bjil.typepad.com/Keppler_forPDF_[RC][1].pdf

[4] Roth, Letter to Colin Powell, 2003         

The United States is not under any form of responsibility to other states to provide them with military and other aid. Aid has always been provided with strings attached to those whose receipt of aid is considered beneficial. It is within the purview of the US to decide who they give aid to, based on their own priorities. This is simply part of the diplomatic process. If the US wishes to provide aid to countries that sign up to treaties then this is its right, it is perfectly normal to provide a sweetener to encourage states to sign up while punishing those that don’t.

This then is a good reason why these European states should not pull out of their BIAs. To do so would mean losing the financial benefits being provided. At the same time it would also show that these states are not to be trusted when they sign up to international agreements.

The European states have signed and ratified the ICC Statute and should honour it, to do otherwise makes a mockery of the ICC which those states supported throughout its genesis and at least claim to continue to support.

Article 98(2) was only intended to be a factor where there are other agreements such as status of forces agreements (an agreement entered in to between two states, one having military forces in the other voluntarily, such as British troops in Germany). It was not meant as a broad-brush way for states being able to grant selective immunity to citizens of non-member states who have committed genocide or crimes against humanity inside the jurisdiction of an ICC member state.

Signing an Article 98 Agreement is at best accepting foreign instigation of the abuse of process of a treaty. At worst it is accepting an illegal attempt at circumventing the treaty. 

The text of the Rome Statute is clear. Article 98(2) is unspecific as to the variety of international agreements that it covers, unlike the narrower Article 98(1) covering diplomatic immunity.

Article 98 Agreements are a tool that is a legitimate method of the US ensuring that US citizens are not subject to trial and punishment by a court which the United States is not a part of. This would run against the principle that a treaty only affects states that have signed and ratified it, rather than any others.

The Bilateral Immunity Agreements that these states have entered in to undermine the court that these states have signed up to. BIAs invalidate the intention for the ICC that any person who is subject to the jurisdiction of the court (which only triggers when an individual is a citizen of a state that has ratified the Rome Statute, or in the territory of a Rome Statute state) and commits the horrific acts covered by the Rome Statute should be brought to trial by providing a get out clause for the powerful. A proliferation in BIAs could potentially render the ICC a court that can only try nationals of small states that do not have the leverage to get others to agree to BIAs, already the ICC is accused of bias in putting Africans on trial and ignoring the rest of the world, such agreements make this worse.[1] BIAs by one state, the United States, creates a precedent for other states to use and as they do so the field that is available for international criminal justice will become smaller and smaller.

[1] Kersten, Mark, “African and the ICC: Some Unsolicited Advice”, Africa at LSE, 28 May 2013, http://blogs.lse.ac.uk/africaatlse/2013/05/28/africa-and-the-icc-some-unsolicited-advice/

While they undermine the court, they are an inevitable quid pro quo of part of diplomatic relations with the US, the last remaining superpower. While impunity is not ideal, it is better than not signing and taking part in international criminal justice at all. Creating BIAs does not mean that the countries in question will absolve their own citizens of wrongdoing instead they are likely to be tried at home and in some cases may still be handed over to the ICC.

The United States has been accused of using bullying tactics in the pursuit of gaining Article 98 Agreements by, amongst others, Human Rights Watch[1].

This has included significant reductions in non-military, development aid, including to countries such as South Africa, the Bahamas[2] and Peru[3], as well as making threats to accession to NATO in the case of Croatia.[4]

By signing up to Article 98 Agreements, European nations help contribute to a climate where smaller nations can also be strong-armed in to harming the International Criminal Court by signing them, even if they were not subject to blackmailed in to it themselves.

[1] Roth, Kenneth, “Letter to the US Secretary of State Colin Powell on Bully Tactics against the International Criminal Court”, Human Rights Watch, 2003 http://www.hrw.org/en/news/2003/06/29/letter-colin-powell-us-bully-tactics-against-international-criminal-court

[2] Roth, Letter to Colin Powell, 2003

[3] Keppler, Elise, “The United States and the International Criminal Court: The Bush Administration’s Approach and a Way Forward Under the Obama Administration”, Berkeley Journal of International Law, 2009, 2, p12, http://bjil.typepad.com/Keppler_forPDF_[RC][1].pdf

[4] Roth, Letter to Colin Powell, 2003         

The United States is not under any form of responsibility to other states to provide them with military and other aid. Aid has always been provided with strings attached to those whose receipt of aid is considered beneficial. It is within the purview of the US to decide who they give aid to, based on their own priorities. This is simply part of the diplomatic process. If the US wishes to provide aid to countries that sign up to treaties then this is its right, it is perfectly normal to provide a sweetener to encourage states to sign up while punishing those that don’t.

This then is a good reason why these European states should not pull out of their BIAs. To do so would mean losing the financial benefits being provided. At the same time it would also show that these states are not to be trusted when they sign up to international agreements.

As a key part of its national sovereignty, the US should not be required to have its citizens subject to the ICC if it does not ratify the treaty itself of its own choice. It is an accepted principle, as enshrined in Article 34 of the Vienna Convention on the Law of Treaties,[1] that a treaty only binds the states that have consented to it. Binding citizens of states who are not parties, who may be acting under the orders of a state arm, such as a military, when in the territory of state parties, violates that state’s sovereignty. There have been attempts to put US soldiers on trial. Italy for example put Mario Lozano on trial for the killing of an Italian agent in Iraq, the US maintained he was doing his job at a checkpoint and provided warnings while the Italians considered it murder. In this case the United States was able to refuse to hand the soldier over but BIA’s ensure that such actions will not be a concern whenever troops are deployed abroad.[2]

Bilateral Immunity Agreements are a legitimate tool to ensure that this key principle is protected in the case of the International Criminal Court – this has no bearing on the nations that desire to be part of the International Criminal Court.

[1] United Nations. Vienna Convention on the Law of Treaties, 23 May 1969, http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

[2] “Controversial Trial Opens in Rome: Italy Tries US Soldier For Iraq Murder”, Spiegel Online, 17 April 2007, http://www.spiegel.de/international/europe/controversial-trial-opens-in-rome-italy-tries-us-soldier-for-iraq-murder-a-477738.html

The Rome Statute itself does not bind any state to be put on trial – it binds individuals. Individuals violating the criminal law of a state (the Rome Statute also integrating the international criminal law in to the national criminal law) have always been subject to trial and punishment by that state, barring cases of diplomatic immunity or other separate cases. This is nothing new – the Rome Statute respects the sovereignty of a nation within its territory. If anything, it is the use of coercive tactics by a state to give its citizens immunity from the ordinary law that is the violation of national sovereignty.

Even without the BIAs it would only be possible to prosecute Americans if they commit an international crime in the jurisdiction of another state. When this occurs due to the principle of territoriality it has traditionally been the case that the state upon whose territory the act was committed is able to try those who committed the act. It is not a violation of sovereignty to allow the ICC rather than the other state the right to bring the defendant to trial.

Many of the states in Europe that have signed up to BIA’s are applicant to NATO which leaves them in a difficult position when it comes to withdrawing from such a treaty. While NATO members are exempt from the punitive provisions aimed at states who do not have Article 98 agreements, in order to join NATO the state will need the support of the United States. Such support will be less forthcoming if that country has abandoned an agreement with the United States such as a BIA. Linking issues is not unusual in international relations whether it is linking multiple issues in a single larger negotiation or blocking progress in joining an organisation as a result of a single issue. Perhaps the best example of this occurring is Turkey and the EU where Turkey’s membership has been held up by its dispute with Cyprus over the northern half of the island.[1]

Even if the United States were to allow an application to NATO to proceed despite the abandonment of their bilateral treaty relations will surely be damaged. No state is going to welcome another state unilaterally withdrawing from a treaty they have signed. The Eastern European states value their relationship with the United States due to that country’s commitment to their independence and support during the early 1990s as the soviet bloc broke up. It would not make sense for these small independent countries to risk relations with the world’s most powerful statements over an agreement which is unlikely to ever have a practical relevance.

[1] Rinke, Andreas, and Solaker, Gulsen, “Cyprus remains stumbling block in Turkey’s EU ambition: Merkel”, Reuters, 25 February 2013, http://www.reuters.com/article/2013/02/25/us-germany-turkey-eu-idUSBRE91O10L20130225

The US is not focusing on encouraging existing NATO members to withdraw from the ICC. Existing NATO members are not subject to the aid-cutting provisions of US law (before and after the Presidential waiver was created), neither are major non-NATO allies – indeed, all EU member states in NATO are ICC members, with the exception of Romania none have signed an Article 98 agreement.

Much of the US antagonism to the ICC came during the Bush administration, when the ICC was an unproven organization in its infancy.

Since then, US Policy towards the ICC has softened, as can be evidenced by the US voting in favour of referring the situation in Libya to the ICC (compared to abstaining in the referral of Darfur), so it would be unlikely to do much harm to bilateral relations if other states were to expand their co-operation. No EU member state other than Romania has entered in to an Article 98 Agreement with the US.[1]

[1] Barbour, The International Criminal Court, 2010

The prospect of an Article 98 Agreement actually being relied on is slim. It would require the International Criminal Court to prosecute an American for a crime against humanity, or genocide, that takes place in ICC member state. There is next to no chance of the UN Security Council referring a case against America to the ICC as the US has a veto as a permanent member.

The ICC already makes only a highly limited number of prosecutions per year, in obvious cases, and so far all of these have been focused on the developing world. While Article 98 agreements may be unsavoury, the chance of them actually being used to grant someone impunity is low.

Theoretical impunity is still impunity. The concept that any entity should be given special treatment by the law runs contrary to principles of the rule of law. If such immunity is not going to be needed then there is very little reason for the agreements in the first place and there should be little objection to getting rid of them.