Status of the U.S. Bilateral Immunity Agreements under the Rome Statute

On 5 March 2020, despite strong opposition from the United States of America (‘U.S.’), the Appeals Chamber of the International Criminal Court (‘ICC’) authorized the Prosecutor to initiate an investigation in relation to alleged war crimes and crimes against humanity committed on the territory of Afghanistan by Taliban, Afghan government forces, and U.S. troops. The U.S. has earlier revoked the Prosecutor’s visa and responded to the decision as “breathtaking action by an unaccountable political institution.”

After the ICC’s unprecedented ruling, the legal status of the U.S. bilateral immunity agreements (‘BIAs’) would be of significant importance in the future and warrants deeper examination. Also known as Article 98 agreements viz. Art. 98(2) of the ICC’s Rome Statute (‘Statute’), BIAs are international agreements between the U.S. and other states whereby the latter undertake to surrender a broad range of U.S. citizens to the U.S. instead of complying with any arrest warrant issued by the ICC. This article discusses the hostile approach of the U.S. towards the ICC since its creation and argues that these controversial agreements do not restrict the power of the ICC to issue requests to any State Party for the surrender of persons covered under such BIAs.

HISTORY OF U.S.-ICC RELATIONSHIP

The U.S. has never been a party to the Rome Statute of the ICC. Although the U.S. signed the Statute on 31 December 2000, following several concerns over the jurisdiction of the ICC as expressed by President Clinton, the statute was never ratified by the U.S. Senate. Further, during the Bush administration, the U.S. informed the then U.N. Secretary-General Kofi Annan of the U.S.’s intention to no longer ratify the Statute.

Thereafter, the U.S. approached the UN Security Council (‘Security Council’). Faced with the threat that the U.S. would withdraw from all UN peacekeeping operations, the Security Council, acting under Chapter VII and in accordance with Article 16 of the Statute, requested the ICC to refrain, for a period of one year, from investigating nationals of states that are not a party to the Statute and involved in operations non explicitly authorized by the UN. The Security Council’s resolution was renewed in 2003 by Resolution1487, however, due to severe opposition from its allies, the U.S. refrained from seeking a second renewal. Instead, in order to afford U.S. citizens more permanent protection, a second approach was adopted to bypass the need to liaise with the Security Council by persuading other states to directly enter into BIAs with the U.S.

STATUS OF US BILATERAL IMMUNITY AGREEMENTS

1. Whether Article 98(2) of the Rome Statute is Limited to Retrospective Application?

One view is that Article 98(2) was only intended to cover agreements that existed before the coming into force of the Statute and, therefore, Article 98(2) cannot cover U.S. BIAs given that such agreements were only formalized after the Statute’s taking of effect. However, such a view does not appear to conform with rules of treaty interpretation, as codified in the Vienna Convention, which makes clear that one must look at the words of the treaty ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ The ordinary meaning of the phrase “obligations under international agreements” in Article 98(2) does not suggest that they are limited to pre-existing agreements. Recourse to supplementary means of interpretation is not needed because the ordinary meaning of the treaty’s term does not result in any ambiguity nor absurd meaning being given. Additionally, if the draftsmen had intended to limit Article 98 to pre-existing agreements, the word “existing” would have been included in Article 98(2) alongside the words “international agreements”. In particular, it is noteworthy that other articles within the Statue (i.e. Articles 90(6) and Article 93(3)) do include the qualifying word ‘existing’, notwithstanding the lack of the same in Article 98(2).

2. Do the U.S. BIAs fall within the scope of Article 98(2) of the Rome Statute?

U.S. BIAs fall outside the scope of Article 98(2) in two respects. First, such agreements apply to all U.S. nationals rather than to the officials sent by the government. Secondly, these agreements do not ensure proper investigation and prosecution.

a. Persons covered by U.S. BIAs are broader than SOFAs

The U.S. BIAs are incompatible with Article 98(2) of the Statute given that such agreements cover a broader list of persons, inclusive of current or former government officials, employees, or military personnel or nationals of one Party and even nationals of states parties to the Statute who currently work or have previously worked for the U.S. government.

The term “Sending State” in Article 98(2) does not imply “state of Nationality” as claimed by the U.S. Instead, the ordinary meaning of the phrase “Sending State” appears to suggest that the presence of the person on the territory of a host state must result from the official act of the Sending State. In the Al Bashir case, the ICC concluded that Article 98(2) of the Statute does not cover immunities but the only status of forces agreements (SOFA). The Guiding Principles issued by the Council of European Union have also proposed that the U.S. BIAs should only cover persons present in the territory of a host state who have been sent by the Sending State.

b. U.S. BIAs do not ensure proper Investigation and Prosecution

Article 98(2) of the Statute only covers SOFAs, not immunity agreements. SOFAs are not immunity agreements in any way, but function to govern the division of jurisdiction between host and Sending States when any personnel of a Sending State’s armed forces engage in any criminal conduct in a host state. The NATO SOFA agreement can be taken as an example. Under Article VII of the NATO SOFA agreement, if a crime is committed by U.S. armed forces that only violates U.S. law, then U.S. courts would have exclusive jurisdiction. However, if it only violates the law of the host NATO member state, then the host state would have exclusive jurisdiction. If the crime committed violates both the U.S. military law and the host state law, then both U.S. courts and courts of the host state will have concurrent jurisdiction. NATO SOFA and other SOFAs clearly show that they do not give impunity to members of a Sending State’s armed forces for the crimes they have allegedly committed in the host state.

U.S. BIAs are more like impunity agreements. These agreements do not impose a legal obligation on the U.S. to investigate and—where there is sufficient evidence—prosecute those who are alleged to have committed international crimes within the jurisdiction of the ICC. In these agreements, the U.S. expresses its intention to investigate those who are alleged to have committed the international crimes “where appropriate”. The Parliamentary Assembly of the Council of Europe has also recommended the inclusion of appropriate provisions in U.S. BIAs so that those who have committed crimes falling within the jurisdiction of the ICC do not enjoy impunity.

3. Whether Signing BIA with the U.S. would breach State Parties Obligations Under Rome Statute?

Amnesty International and Human Rights Watch have strongly urged state parties not to enter into any BIAs with the U.S. as they would be in violation of Article 98 and would defeat the object of the Statute. However, one may disagree with this conclusion as Article 98(2) of the Statute does not stop State Parties from signing any agreement. Article 98(2) of the Statute imposes an obligation on the ICC and not on state parties, to decide whether or not to issue a request for surrender of any person to any State Party. Further, State Parties are not violating Article 86 to 89 of the Rome Statute by merely concluding BIAs with the U.S. as these provisions of the Statute become relevant only when a request for cooperation has been made to State Parties by the ICC. Until a request from the ICC is made for the surrender of any person and the state refuses to honor it, there is no breach of any of these provisions.

To conclude, the mere signing of a BIA with the U.S. does not violate the Statute. Instead, the real test for these States Parties will occur when the ICC decides that U.S. BIAs exceed the scope of Article 98 and issue arrest warrants for any person covered under the immunity agreement. If the ICC decides so then these State Parties will be under conflicting obligations and will have to decide whether to honor their agreements with the U.S. or comply with the request of the ICC. The ICC has concluded in Omar Bashir’s case that once an arrest warrant is issued by the ICC, State Parties are required to comply even if they consider the arrest warrant to be in violation of Article 98 given that – as per Article 119(1 ) of the Statute (to be read in line with Rule 195) – the ICC retains the final authority over the interpretation of the Statute.

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