"European countries should defend the International Criminal Court and request the US authorities to withdraw the idea of impunity for US nationals"

The atrocities in the Balkans in the early 1990s were a reminder that an effective and independent international justice mechanism was needed to end impunity for the gravest of crimes: genocide, crimes against humanity and war crimes. The Rome Statute was agreed in 1998 after lengthy inter-governmental negotiations and the International Criminal Court (ICC) was established in 2002 after 60 States had ratified the treaty. Now with 108 State parties, the Court still faces major challenges.

From the start, the United States Administration has looked at the Court with suspicion and hostility.  Within the Clinton administration there was fear that the Court might be misused for politically motivated prosecutions against US nationals. Yet, President Clinton signed the Statute on 31 December 2000, the very last day it was open for signature. He said that ratification was not imminent and that such a proposal to the Senate would depend on whether the Court demonstrated political impartiality.

His successor was not even willing to go that far. Just before the entry into force of the Statute, President George W. Bush declared, in a letter to the UN Secretary-General, that his administration would not ratify the Treaty and that it did not accept the obligations following from its signature. In reality, this "unsigning" meant that the US government no longer felt obliged to refrain from acts which would defeat the object and purpose of the Rome Statute.(1)

Thereafter the Bush administration engaged in a full-scale campaign against the ICC. In 2002, it pushed the UN Security Council to adopt a resolution which requested the ICC not to begin investigation or prosecution "involving present or former officials or personnel" from a state which had not ratified the Statute  .  This exception was renewed in June 2003 for a twelve-month period but later attempts to renew it did not win sufficient support. The US finally withdrew the resolution.

The next step was to request other governments to conclude bilateral immunity agreements with Washington which would shield current or former US government officials, military and other personnel, including non-US citizens working for the US and other US nationals, from the jurisdiction of the Court.(2) No guarantee was provided that suspects would be prosecuted in a national criminal justice process.(3)

The political and diplomatic pressure exerted to obtain these agreements was unprecedented. Programmes on military training and even development assistance were terminated for those States who refused. In 2002, the American Service-Members Protection Act (ASPA) prohibited the US to engage in bilateral and multilateral activities aimed at cooperating or supporting the ICC and authorised the use of force to free any US citizen detained in the Hague on basis of an order of the Court.

In addition, an amendment to a law on economic assistance named after its initiator, Congressman George Nethercutt, badly affected several poorly off countries when they took a principled position not to undermine the Rome Statute.

European institutions were clearly sceptical towards both the substance and the methods of this campaign and governments seeking good relations with both the EU and the US administration were in an uncomfortable position. Romania and Azerbaijan, for instance, signed the Bilateral Immunity Agreement with the US but then never ratified it.

The Parliamentary Assembly of the Council of Europe discussed this issue in various sessions. In 2003, it regretted the ongoing US campaign and stated that the agreements sought were in breach of the Rome Statute. It continued:

"The Assembly condemns the pressure exercised on a number of members states of the Council of Europe to enter into such agreements, and regrets that the contradictory demands made on them by the United States on the one side, and the European Union and the Council of Europe on the other, confronts them with a false choice between European and trans-Atlantic solidarity. The Assembly considers that all countries should be left free to decide on their stance vis-à-vis the ICC on the basis of considerations of principle alone."(4)

In the end only four European States ratified the immunity agreement: Albania, Bosnia and Herzegovina, Georgia and "the Former Yugoslav Republic of Macedonia".  In my subsequent discussions with government representatives from these countries, I did not detect any enthusiasm for the agreement.

Significantly, not even half of the agreements became legally binding as many governments never followed up on their first promises to the US administration. Of the 102 signed agreements, only 21 were ratified by parliament and only 18 others were described as executive decisions, which would not require ratification.

Even within the Bush administration, enthusiasm appeared to fade with time. The number of exceptions to APSA increased and, in the end,  punitive actions were no longer sought.

The new administration is certainly more positive. The sanctions foreseen by the bilateral agreements have been waived and Secretary of State, Hillary Clinton, stated to a Senate Committee that the "hostility" to the ICC would end. The US endorsement of the ICC action on Sudan may anticipate a new era for international justice.

It is high time that the US policies towards the ICC are reviewed by the Obama administration, in the spirit of active and positive cooperation with the Court. In particular, the US Government should restate its support by reactivating its signature; repeal APSA and engage in the works of the Review Conference in 2010.

Moreover, the Obama administration should now ask the Senate to ratify the Rome Statute and contribute to making the Court an effective instrument of last resort against impunity for crimes that, too often thus far, have gone unpunished despite their horrendous character.

European spokespersons should seek a renewed dialogue on this issue in spite of the scars which may still be there after the bullying of the Bush administration. Remaining US worries, if any, could surely be clarified and remedied. Such talks should also encourage those European states which have still not ratified or acceded to the Rome Statute, to come on board. The Council of Europe's Parliamentary Assembly recently recommended full cooperation by all CoE member states with the Court.(5)

We should aim for universal participation. Developments since the treaty was adopted a decade ago have unfortunately proved that the International Criminal Court is badly needed.

Thomas Hammarberg

1. Article 18 (a) of the 1969 Vienna Convention on the Law of Treaties stipulates that a State which has signed a treaty is obliged to refrain from acts  which would defeat the object and purpose of the treaty in question.

2. These agreements were also called "Article 98" agreements. Article 98(2) of the Statute states that the Court "may not proceed with a request for  surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender." Many international law experts agreed that such agreements were contrary to international law and the Rome Statute.

3.  The Rome Statute offers comprehensive safeguards against abuse for political purposes.  The preamble of the Rome Statute says that the ICC shall be complementary to national criminal jurisdictions and its Article 17 provides that the Court may exercise its jurisdiction only when the State which has jurisdiction over the case is unwilling or genuinely unable to carry out the investigation or prosecution.

4. Parliamentary Assembly Resolution 1336 (2003); 25 June 2003

5.PACE Resolution 1644 (2009) on Cooperation with the International Criminal Court and its Universality. The Assembly further urged Armenia, Azerbaijan, the Czech Republic, Moldova, Monaco, the Russian Federation, Turkey and Ukraine, as well as the observer states United States and Israel, to ratify the Statute.