U.S. Using Strong-Arm Tactics to Undermine Court
on First Anniversary of Creation of ICC


NEW YORK - The U.S. released a list of 50 countries today to which aid may be suspended because they have not signed bilateral agreements exempting Americans from possible prosecution by the International Criminal Court.

“The Bush Administration has been using all its diplomatic muscle in order to get its way, threatening to cut not only military aid but also humanitarian assistance such as hurricane relief to those states that won't sign,” said Fiona McKay, director of the International Justice program at the Lawyers Committee.

The International Criminal Court, established on July 1, 2002, is charged with prosecuting individuals accused of committing genocide, war crimes and crimes against humanity. Today, on the one year anniversary of its establishment, the Court is enjoying enormous international support, all of its chief officers have been elected and it is beginning to review information sent to it. First cases could be heard as early as next year.

Meanwhile, the U.S. has been putting relentless pressure on states to sign bilateral agreements by which signatories commit themselves to never hand over a U.S. national to the ICC. An estimated 49 states have signed these bilateral agreements. Most are particularly poor and vulnerable to U.S. pressure.

Now the U.S. Administration has ratcheted up the pressure by reminding states of the terms of the American Service-members Protection Act 2002, or ASPA. According to ASPA, which comes into effect today, states that are parties to the ICC Treaty and have not signed an agreement with the U.S. may have their military assistance suspended. But the Act itself provides exceptions for NATO members and major non-NATO allies. It also allows the President to issue waivers if in the national interest of the U.S.

States which do not sign the agreements and whose funding may be cut if waivers are not exercised include: Colombia, Cambodia and Nigeria. State Department spokesman Richard Boucher said yesterday that the immediate practical effect of the July 1st suspension will be minimal, since most of the funds allocated for the current fiscal year have already been expended.

In addition to concerns about the impact on the Court of signing agreements with the U.S. exempting Americans from ICC jurisdiction, many states are concerned about the legality of signing the agreements themselves. In September 2002, the European Union issued guidelines in which it rejected the form of agreement the U.S. is demanding as inconsistent with the ICC Treaty, the Rome Statute, and set down a number of important conditions for states contemplating negotiating an agreement.

Last month, the Lawyers Committee obtained a legal opinion from three international lawyers, including James Crawford who drafted the first version of the Rome Statute. The Legal Opinion, which is available at http://www.lchr.org/international_justice/Art98_061403.pdf, concludes that:

• It is inconsistent with the object and purpose of the Rome Statute for a State Party to enter into or apply a bilateral non-surrender agreement if the purpose or effect would be to provide impunity
• Similar considerations apply to signatories of the Rome Statute that have not yet ratified, to the extent that a bilateral non-surrender agreement would frustrate the object and purpose of the Statute
• Article 98(2) of the Statute does not permit a State Party to enter into or apply an agreement that provides for the return of any person who cannot objectively be treated as "sent" by that state