THE WORLDWIDE US CAMPAIGN TO OBTAIN IMPUNITY AGREEMENTS
The USA made clear in May 2002 when it repudiated its signature of the Rome Statute that it was embarking on a worldwide campaign to undermine the ability of the International Criminal Court to exercise its jurisdiction over nationals of non-states parties accused of genocide, crimes against humanity or war crimes on the territory of states parties to the Rome Statute. John R. Bolton, the US Under Secretary for Arms Control and International Security, is leading this effort, according to a US State Department spokesperson, Philip Reeker, who added, “We’ll be working with a number of countries to conclude similar agreements, a large number of countries”, and added that the impunity agreements “give us the safeguards we were seeking”.
This worldwide campaign has so far taken two approaches. The first was to obtain a Security Council resolution on 12 July 2002 seeking to invoke Article 16 of the Rome Statute deferring any investigation or prosecution by the International Criminal Court of nationals of non-states parties for acts or omissions in connection with a UN established or authorized operation. The second approach has been to persuade states to enter into impunity agreements which seek to prevent states from surrendering US nationals accused of genocide, crimes against humanity or war crimes to the International Criminal Court, but do not provide for their investigation or prosecution by the USA or by any other state.
The second approach is coupled with threats to cut off military aid to any state party to the Rome Statute that does not enter into an impunity agreement with the USA. During the first full week of August 2002, the US State Department briefed foreign ambassadors on US opposition to the court and to warn them of the prohibition in Section 2007 of the American Servicemembers Protection Act (ASPA), which entered into force on 2 August 2002, against military assistance to countries that are a party to the treaty establishing the court, but allowing the US President to waive this ban if the state enters into an impunity agreement with the USA or if he decides that it is in the national interest. Philip Reeker, a State Department spokesperson, said, “That is a fact under the law, it's right there in the law,” and added, “The president welcomes the law - I can't underscore how important this is to us to protect American service members.” Another State Department spokesperson recently indicated the broad scope of the campaign:
“I think that we have gone to many, many countries in the world. . . . I think that when we originally announced the effort we gave you some indication of how broadly we sent the cable to. We’ve had our embassies contacting foreign governments and concentrated, I think, on the most likely places that US troops are going to be present or deployed or passing through. So certainly places where US personnel are not likely to ever be located in the foreseeable future are not high on the list.”
A. The typical US impunity agreement
The typical US impunity agreement - which has no resemblance whatsoever to a SOFA - comes in at least three forms. Each is designed to remove the other state’s sovereign right to determine which courts – its own or those of an international criminal court to which it has delegated its authority under a multilateral treaty – will investigate and prosecute crimes committed in its territory or by persons found in its territory. Each also will require states to renegotiate re-extradition provisions in all current extradition agreements.
The standard form of the US impunity agreement, apparently signed by only one state, Israel, a signatory of the Rome Statute, provides that both parties agree not to surrender a broad range of each other’s nationals (and certain other associated nationals), not just persons serving in a UN peace-keeping operation, to the International Criminal Court without the consent of the other party. The second form, signed by only two states, Romania and Tajikistan, both state parties to the Rome Statute, reportedly is identical, except that does not prohibit the USA from surrendering nationals (and certain other associated nationals) of the second state to the International Criminal Court. The third form, which is intended for states that have neither signed nor ratified the Rome Statute, and signed only by East Timor, which is not yet a UN member state, includes a paragraph requiring those states not to cooperate with efforts of third states to surrender persons to the International Criminal Court. There are a number of notable features about the US impunity agreement.
Inability of the USA to investigate and prosecute all of the crimes in the Rome Statute committed abroad. First, the agreement declares that “the Government of the United States of America has expressed its intention to investigate and to prosecute where appropriate acts within the jurisdiction of the International Criminal Court alleged to have been committed by its officials, employees, military personnel, or other nationals”. However, the USA cannot investigate or prosecute all such persons for all crimes within the jurisdiction of the Rome Statute. US law permits the USA to investigate and prosecute US soldiers and enemy nationals in general courts-martial for war crimes under customary international law committed abroad and enemy nationals in military commissions (executive bodies - not competent, independent and impartial courts) for war crimes. It is not entirely clear whether US law still permits the USA to investigate and prosecute US soldiers and enemy nationals in general courts-martial and enemy nationals in military commissions for crimes against humanity as defined in the Rome Statute; trials in such courts or executive bodies on charges of crimes against humanity have not occurred since the aftermath of the Second World War. However, the USA does not have clear jurisdiction over all such crimes committed by US civilians or over genocide committed abroad by members of the US armed forces that are not US nationals or by foreign civilians. For example, not all war crimes in the Rome Statute are expressly defined as crimes under Federal law when committed abroad. Crimes against humanity, apart from torture, committed abroad are not crimes under Federal law. US courts may balk at trying persons for crimes under customary international law that are not expressly defined as crimes under US law. Federal courts have jurisdiction over genocide committed abroad only if committed by US nationals, but not members of US armed forces or persons committed by the US impunity agreement who were not US nationals.
Only investigations and prosecutions if “appropriate”. Second, even with regard to the crimes under international law committed abroad over which US courts have jurisdiction, the USA expresses its intention to investigate and prosecute only “where appropriate”, thus, indicating that the decision to investigate or prosecute is a matter solely within the discretion of the USA and not a matter of law. The USA sought in June 2002, but failed, to include similarly restrictive language concerning the duty of states to investigate and prosecute genocide, crimes against humanity and war crimes in what became Security Council Resolution 1422.
Purpose of US impunity agreement exact opposite of that of SOFAs. The third notable point about the US impunity agreement is that, despite the reference in the fourth preambular paragraph to Article 98 of the Rome Statute, the purpose of the agreement is the exact opposite of the purpose of the existing SOFAs which are the subject of the second paragraph of that article. Existing SOFAs are designed to allocate responsibility for investigating and prosecuting crimes committed by armed forces of a sending state present on the territory of a receiving state pursuant to the agreement, not to provide impunity for the sending state’s forces for crimes committed in the territory of the recstate. Despite the expressed intention in the third preambular paragraph by the USA to investigaand prosecute persons (but only “where appropriate”) for crimes within the jurisdiction of the International Criminal Court and the reaffirmation in the first preambular paragraph of “the importance of bringing to justice those who commit genocide, crimes against humanity and war crimes”, the agreement does not provide for primary jurisdiction in the USA - or even any jurisdiction in the USA - but simply provides that the second state may not surrender or otherwise transfer persons to the International Criminal Court. Indeed, the entire agreement must be seen against the background of the US denunciation of its signature of the Rome Statute on 6 May 2002.
No obligation for second state to investigate or prosecute. Fourth, there is no requirement that the second state investigate and, if there is sufficient admissible evidence, prosecute. The second preambular paragraph of the US impunity agreement simply recalls the principle of vertical complementarity under which the International Criminal Court will exercise its jurisdiction when states are unable or unwilling genuinely to investigate or prosecute. However, the agreement does not replace it with horizontal complementarity by the second state. There is no provision in the operative paragraphs requiring the USA to investigate and, if there is sufficient admissible evidence, to prosecute in good faith with due diligence any person extradited or otherwise transferred by the second state to the USA or to return any such person to the second state if this does not happen. Moreover, that state is likely to be under intense bilateral US political pressure not to investigate or prosecute a person covered by the impunity agreement. Thus, it is, truly, an impunity agreement, not an agreement allocating responsibilities for investigating and prosecuting persons suspected of crimes.
Need for states to renegotiate all existing extradition agreements. If a state signs a US impunity agreement, it will have to renegotiate all or almost all current extradition agreements with other states since most bilateral extradition agreements have re-extradition clauses. Such clauses provide that the state extraditing a person to another state normally retains the right to agree to the re-extradition of that person to another state or international court. Such clauses apply even if the state is extraditing a person of another nationality to a state not of that person’s nationality. Under the US impunity agreement, the second state gives up this right to the USA. Therefore, if a state agreed to the US impunity agreement, it would have to renegotiate all or almost all current extradition agreements that have a re-extradition clause and to insert a new clause that provided that the second state retained this right to agree to re-extradition except when the person was a US national or fell within one of the other categories of persons covered by that agreement.
Broader range of persons covered than in SOFAs. Fifth, a broader range of persons are covered than in SOFAs. Persons covered by the standard US impunity agreement are “current or former Government officials, employees (including contractors), or military personnel or nationals of one Party”. In marked contrast to SOFAs and the language of Article 98 (2) of the Rome Statute, the persons covered by the US impunity agreement are not limited to current members of armed forces and related civilians of a sending state stationed in the receiving state pursuant to that agreement. They include a broad range of persons not included in SOFAs. For example, they even include former members of the armed forces and related civilians. They include persons travelling through, conducting personal business or vacationing in the USA or the second state. It is important to note that the persons covered by the US impunity agreement can include nationals of other states than those of the two parties to the agreement (including nationals of states parties to the Rome Statute). In addition, any of the categories of persons covered on the US side, such as members of US armed forces (which include nationals of many other countries) could include even nationals of the other party to the agreement (which might be a state party to the Rome Statute).
Transfer of US witnesses to crimes under international law prohibited. Sixth, the US impunity agreement is designed to prevent US nationals and associated persons, as well as nationals and associated persons of the second state, from appearing as witnesses, including as expert witnesses, before the International Criminal Court. The agreement provides that persons of either party present in the territory of the other party “shall not, absent the expressed consent of the [other] Party, (a) be surrendered or transferred by any means to the International Criminal Court for any purpose[.]” Since witnesses before the International Criminal Court ordinarily appear only if they themselves consent, under the US impunity agreement, they could be prevented from attending, even if they are willing to assist the Court in the search for truth and a fair determination of guilt and innocence based on all the relevant evidence, including exculpatory and mitigating evidence. Their right to testify in the cause of international justice would be taken away by their own government. Thus, the agreement could obstruct international justice for genocide, crimes against humanity and war crimes, even when a US national (or associated person) was not being prosecuted, by preventing crucial testimony that could determine guilt or innocence of persons accused of the worst crimes in the world.
Broader range of persons covered than in Security Council Resolution 1422. Seventh, the persons covered by the US impunity agreements are not limited to “current or former officials from a contributing State not a Party to the Rome Statute over acts and omissions relating to a United Nations established or authorized operation”, as in Security Council Resolution 1422, but they also include employees, including civilian contractors (presumably, any person acting as an agent of the party to the US impunity agreement in some contractual relationship with the USA, such as intelligence sources), regardless of nationality and regardless whether the person was a national of a state party or a state signatory to the Rome Statute. In addition, the persons covered by the US impunity agreement are not limited to persons with some connection to a UN established or authorized operation, as in Security Council Resolution 1422.
B. Current status of response to US threats
Some of the states so far that have refused to enter into US impunity agreements. A number of states have already refused to enter into impunity agreements with the US, despite intense pressure. These states reportedly include Canada, the Netherlands, Norway, Switzerland and Yugoslavia, all of which are states parties to the Rome Statute. The Ministry of Foreign Affairs of the Netherlands, the host state for the International Criminal Court, a state party to the Rome Statute and a member of the European Union (EU), declared on 30 July 2002 that it was not considering such an impunity agreement. “Our position and the position of the European Union is clear,” said the Ministry of Foreign Affairs spokesperson, Hans Jansen, who added, “An exception as such, as they [the USA] have indicated, would undermine the court's statute.” A spokesperson for the Federal Department of Foreign Affairs (DFAE) of Switzerland, a state party to the Rome Statute, stated, “We are for the universal application of the principles in the International Criminal Court . . . The DFAE requests the United States to apply these principles.”
The four states that have caved in to US pressure so far. Only three UN member states, Romania, Israel and Tajikistan, and one non-UN member state, East Timor, are known to have caved into US pressure so far and signed impunity agreements. However, none of these agreements habeen ratified by national parliaments.
On 1 August 2002, Romania, a state party to the Rome Statute and an applicant to join theNorth Atlantic Treaty Organization (NATO), signed an impunity agreement under which it agreed not to surrender US nationals (and associated nationals, such as civilian contractors, who might be Romanian citizens) to the International Criminal Court. The Romanian Ambassador to the USA, Sorin Ducaru, denied that his country’s application for membership in NATO and in the EU was related to the impunity agreement, which apparently must be approved by Parliament before it can enter into force. A US State Department spokesperson, Philip Reeker, stated that “we very much appreciate the fact that Romania was the first of those countries to do this”. Israel, a signatory of the Rome Statute, signed a mutual impunity agreement with the USA on 4 August 2002 under which both states agree not to surrender nationals of their own states to the International Criminal Court. The Deputy Chief of Mission at the Israeli Embassy in Washington, D.C., Rafael Barak, stated that Israel shared US concerns and it feared that its soldiers could be tried in the International Criminal Court for their actions against Palestinians, although he did not explain why Israel believed that the International Criminal Court could exercise its jurisdiction over Israeli soldiers in the Occupied Territories as long as Palestine is not a state party, absent a referral of the situation by the Security Council, or why he believed that signing the US impunity agreement was consistent with Israel’s obligations under international law governing treaties as a signatory of the Rome Statute. Tajikistan, a state party to the Rome Statute, where US troops are stationed, signed an impunity agreement on 27 August 2002. The State Department has confirmed earlier press reports that East Timor had succumbed to US pressure and had signed an impunity agreement.
Some of the states known to be under threat. Although the US has made clear that it is approaching almost every other state or jurisdiction seeking impunity for its nationals with regard to prosecution in the International Criminal Court for genocide, crimes against humanity and war crimes, there are a number of states which are known to be under particular threat.
Before the end of July 2002, the USA had approached most of the member states of the EU demanding that they enter into impunity agreements. On 16 August, US Secretary of State, Colin L. Powell, wrote letters to European governments asking them to ignore the EU’s request to wait until the EU adopted a common response to US impunity agreements and urged them to enter into such agreements “as soon as possible”. The foreign ministers of the EU are scheduled to discuss the International Criminal Court at an informal meeting in Denmark from 30 to 31 August 2002 and the legal advisers of EU ministries of foreign affairs are to discuss the US impunity agreements at a meeting of COJUR in Brussels on 4 September 2002. The report of that meeting is expected to be sent to the EU Committee on Politics and Security (COPS) for discussion at a meeting on 6 September 2002, with a view to adopting a common position at the end of September 2002. A legal opinion has reportedly been prepared by the EU’s own legal experts that concludes that states parties would violate their obligations under the Rome Statute if they entered into a US impunity agreement.
Of the EU member states, Italy, the host of the Rome Diplomatic Conference on the International Criminal Court, and one of the first states to ratify the Rome Statute, is a priority target for the USA. In one particularly worrying development, the UK has indicated that it saw no legal objection to entering into an impunity agreement with the USA. A spokesperson for its Foreign and Commonwealth Office recently asserted, “By definition, it would not be incompatible with the ICC statute to conclude a bilateral agreement with the U.S”, but the spokesperson did not cite any legal arguments in support of this claim. Moreover, there are an increasing number of reports from a variety of sources that indicate that the UK are working on a number of fronts to prevent the EU from adopting a coordinated position opposing the US impunity agreements and have also reportedly opposed EU efforts to press applicant states to resist US pressure to sign immunity agreements.
The United States has indicated that states that are applying for membership in NATO have also been targeted. US Ambassador at Large for War Crimes Issues, Pierre-Richard Prosper, recently stated that whether a state applying for membership in NATO had entered into an agreement with the US to give its nationals impunity from the International Criminal Court would be a factor in determining whether it would be admitted. He said, “It will have to be considered within the application” and he added, “If we don’t get Article 98 agreements across the board, we will have to reach an agreement, or understanding, within NATO and UN peacekeeping. If we don’t reach that understanding, we’ll have to evaluate the situation and reassess what it means.” For example, Estonia, a state party to the Rome Statute, has agreed to meet US officials on 2 September 2002 to discuss the text of an impunity agreement and the Prime Minister is scheduled to meet the President of the USA on 4 September 2002 to discuss the possible signing of an impunity agreement. However, Baltic countries and other applicant states reportedly are now willing to wait for the adoption of a common EU response, although not all of them have agreed to join such a response.
States where US armed forces are stationed in peace-keeping operations, such as Bosnia and Herzegovina, or in anti-“terrorist” operations are a priority, including Afghanistan, Colombia and the Philippines. For example, on 14 August 2002, according to a press briefing by Marc Grossman, a US State Department Spokesperson, the US informed Colombia that its military aid might be cut off if it did not agree to enter into an impunity agreement purporting to prevent surrender of US nationals to the International Criminal Court. At a congressional hearing on 28 August 2002, the Minister for Foreign Affairs neither confirmed nor denied that the President intended to sign an impunity agreement with the USA, but the Justice Minister reportedly said that his initial assessment was that such an agreement would be legal.
Other states known to have been approached by the USA include states parties, such as Argentina, Australia, Brazil, Ecuador; signatories, such as Chile, and states that have neither ratified nor signed the Rome Statute. Australia, a state party and long the leader of the Like-Minded Group of states that supported the prompt establishment of an effective international criminal court, is considered on the verge of signing an impunity agreement. Indeed, in response to a question in Parliament asking whether he would “rule out the Government ever making such a deal”, the answer recently provided by the Minister for Foreign Affairs, Alexander Downer, was that “[t]he government is carefully considering the US proposal”. He subsequently said that he was “sympathetic” to the US request to sign an impunity agreement.
I. THE OBJECT AND PURPOSE OF ROME STATUTE TO END IMPUNITY THROUGH COMPLEMENTARITYII. ARTICLE 98 (2) LIMITED TO EXISTING STATUS OF FORCES AGREEMENTS
IV. US IMPUNITY AGREEMENTS CONTRARY TO ARTICLE 98 (2) OF ROME STATUTE
AMNESTY INTERNATIONAL RECOMMENDATIONS