United States Efforts to Undermine the International Criminal Court (Human Rights Watch Paper, )

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United States Efforts to Undermine the International Criminal Court (Human Rights Watch Paper, )

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Uni ted St a tes E ffor ts t o Undermine the In t ernat iona l Cr im ina l

Court egal Analysis of Impunity Agreements

nt roduc t ion

he Bush Administration is attempting to negotiate bilateral impunity agreements with numerous countries around the

obe. The goal of these agreements is to exempt U.S. military and civilian personnel from the jurisdiction of the ICC. Th

. argues that such agreements are contemplated under Article 98(2) of the Rome Statute. Human Rights Watch disagr

uch impunity agreements violate the Rome Statute and should be opposed. If State parties, as well as signatories of th

ome Statute, sign such agreements they would breach their legal obligations under the Rome Statute.

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I . Legal Analys is

rticle 98(2), which provides that the ICC may not proceed with a request for surrender that would

equire the requested state to act inconsistently with its obligations under international agreements, was

cluded in the Rome Statute to provide an orderly and rational process for the handling of suspects

mong states cooperating with the Court. It was not intended to allow a state that has refused to

ooperate with the Court to negotiate agreements that secure exemption for its citizens or otherwise

ndermine the effective functioning of the Court.

ny State That Has Ratified the Rome Statute May Not Lawfully Sign an AgreementProviding Immunity from ICC Prosecution with a State that Has Repudiated or Has

Not Signed the Rome Statute; To Do So Would Violate the Rome Statute.

he Rome Statute grants the Court jurisdiction over the crimes of genocide, war crimes and crimes

gainst humanity if they occur in the territory of a state party or were committed by its nationals (See

rticle 12). While the Statute allows a state party to conduct its own investigation and prosecution, the

ourt still retains the authority to investigate or prosecute if a state is unwilling to do so. This authority acts as a guarant

gainst impunity and is fundamental.

rticle 98(2) cannot be read to permit a non-state party (and particularly, one that has repudiated the Rome Statute) to

enefit by removing its nationals from the ICC's jurisdiction. This would undercut the jurisdictional regime established in ome Statute.

the instances covered by an impunity agreement, the ICC would be unable to prosecute individuals over which it shou

ave jurisdiction. By turning over a person under an impunity agreement, a state party would be preventing the Court fro

epping in and exercising jurisdiction if the government requesting the person proves unwilling to conduct an appropriat

vestigation or prosecution. By definition, any state that has repudiated the Rome Statute is unwilling to subject its

vestigations and prosecutions to ICC scrutiny. By granting a repudiating state exclusive jurisdiction over the ICC crime

ates would be opening the door to impunity. Therefore, the so-called "Article 98" agreements effectively alter the

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risdictional regime as established under the Rome Statute. For this reason, entering into an impunity agreement would

olate a state party's obligations under the Rome Statute; the agreement itself would not be legally valid under Article 98

o that Articles 98(2) and 12 may be read consistently, Article 98(2) must be construed as a routing mechanism. Only st

arties can benefit from an agreement that allows them first chance at prosecuting their own nationals for ICC crimes

ommitted on the territory of another state. While Human Rights Watch does not favor such agreements, such a jurisdic

outing mechanism is consistent with the overall goals of the Rome Statute to ensure that crimes covered by the ICC

tatute are prosecuted by national courts subject to ICC scrutiny or by the ICC itself. Such agreements would still respec

is guarantee against impunity, which is fundamental to the Rome Statute.

ny State That Has Signed But Not Yet Ratified the Rome Statute May Not Lawfully Sign angreement Providing Immunity from ICC Prosecution with a State that Has Repudiated or Has No

igned the Rome Statute; To Do So Would Violate the "Object and Purpose" of the Rome Statute.

ny state that has signed the Rome Statute is, according to Article 18 of the Vienna Convention on the Law of Treaties,

obliged to refrain from acts which would defeat the object and purpose" of the Rome Statute.

he "purpose" of the Rome Statute, as made clear in the Preamble and Articles 12 and 27, is to establish a system ofdividual accountability for the most serious international crimes. As mentioned above, the treaty is also predicated on I

eview of national prosecutions to remove the possibility of impunity.

tates that have repudiated the Rome Statute have rejected the complementary role of the ICC; they have not agreed to

CC's authority to assess national prosecutions and step in where appropriate and, in effect, they have not taken steps to

radicate impunity.

ignatory states cannot lawfully confer exclusive jurisdiction over ICC crimes to repudiating or non-signatory states.

ntering into impunity agreements would violate the signatory states' obligations under the Vienna Convention to refrainom acts that would defeat the object and purpose of the Rome Statute.

. Pol icy Assessm ent

acilitating widespread immunity for U.S. nationals through negotiated bilateral agreements with the United States would

rovide a dangerous precedent. By signing an impunity agreement with the United States, states parties and signatory

ates would be endorsing a two-tier rule of law: one that applies to U.S. nationals; another that applies to the rest of the

orld's citizens. This would significantly weaken international law and states should resist the Bush administration's

eologically driven attack on the ICC.

the United States is successful in obtaining impunity agreements from many states, it may encourage other nations,

articularly those opposed to the ICC, to pursue similar immunity for their own citizens. This would fundamentally

ndermine the Court.

is also important for states parties and signatory states to recall that Article 98(2) was essentially inserted into the Rom

tatute at the behest of the United States. States agreed to its insertion in order to retain U.S. involvement in the ICC

roject. Given that the U.S. has now officially repudiated the ICC, Washington has eliminated the underlying rationale fo

lateral agreement with the United States, since the Bush Administration would refuse to surrender an American suspec



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e ICC even if the Court found the U.S. investigation or prosecution to have been a complete sham.

hese policy concerns complement the legal arguments and provide states with additional reasons to reject impunity

greements with the United States.

I . Conc lus ion

.S. efforts to exploit Article 98(2) of the Rome Statute by entering into impunity agreements with states parties andgnatory states must be opposed to ensure that the ICC is respected. At stake is the integrity of a vital instrument for

ternational justice.


Documents

United States Efforts to Undermine the International Criminal Court (Human Rights Watch Paper, )