Compatibility of US Bilateral Immunity Agreements with the Rome Statute

5. 『Articlen98』 agreements have done the International Criminal Court a favor. Now that itsnnationals are protected from prosecution in the Hague, the US feels safe enoughnto support the Court. Moreover, the surrender of a person sought by the Courtnhas never actually, been blocked by such an agreement, and, if it were, thisnwould simply be 『complementarity』 in action.

Discussn

State-parties to the Rome Statutenhave a general obligation to cooperate with the Court. A narrow exception tonthis duty can be found in Article 98(2) of the Statute, which provides for limitedncircumstances in which the Court must refrain from requesting a surrender of annindividual to the Court when this is inconsistent with the requested state』snobligations under international agreements with the 『sending state』. Thenstatement in question arises from the background where the US concluded anseries of bilateral immunity agreements (BIAs) that are primarily aimed atnpreventing the surrender of any US nationals to the ICC, while US effort tonmake such agreements has been met with negative responses, which raise thenproblem about the compatibility of Rome Statute with US BIAs. Like thenstatement in question, arguments (eg. By Jeffrey S. Dietz) may arise to supportnthe lawfulness of the US BIAs, saying that they are consistent with the RomenStatute; others (eg. Amnesty International), however, argue that that they arenincompatible with the State-parties obligations under the ICC Statute and maynprovide impunity for international criminals. The essay argues that entry into Art. 98(2)nagreements are not per se unlawful,nbut the scope of persons covered by the US agreements and the lack of guaranteenthat the US would investigate and prosecute the persons concerned would runncounter to the Rome Statute.

It may be argued that mere entryninto an Art. 98 agreement by a state party to the Rome Statute is unlawful, innthat it gives rise to a breach of Art. 89(1) by the state in question in casenof a lawful request from the ICC to that state for a suspect』s surrender. The argumentnis based on Art. 18 of VCLT, which obliges a signatory to refrain from actsnthat would defeat the object and purpose of a treaty. It may be sound to assertnthat international law imposes an obligation on signatories of states not tondefeat the object and purpose of a treaty, as is recognized by the ICJ to benimplicit in the rule pact sunt servandanand confirmed by Nicaragua. However, even assuming such an obligation is goodnlaw, mere entry into Art. 98 agreements is not per se incompatible with the object and purposenof the Rome Statute. According to the preamble of the Rome Statute, the objectnand purpose of it includes not only 『putting an end to impunity』 but also 『complementarity』,nby the latter of which it intends to encourage to investigate and prosecute internationalncrimes firstly at the national level, and only when the states are unwilling ornunable genuinely to carry out such investigation and prosecution may the ICCnstep in. To the extent that states are presumed to act in good faith accordingnto treaties, Art. 98 agreements made by US are consistent with the object andnpurpose of complementarity, as long as US will act in good faith with the Art. 98 agreements by taking domestic measures of investigation and prosecution. Such a reading isnalso confirmed by David Sheffer, the US ambassador on negotiating the RomenStatute, who argued that the objective of the agreements were not to achieve impunitynper se, but to ensure that thenindividuals concerned will subject to exclusive judicial procedures set forthnin these agreements. Such arrangements of exclusive jurisdiction is also recognized by the UNnSecurity Council in its resolutions relating to Multinational force in Liberianand referral of Darfur Situation to the ICC, which states that 『personnel from ancontributing state not party to the Rome Statute shall be subject to thenexclusive jurisdiction of the contributing state』. As noted by O』Keefe, thesenresolutions reflect a belief that measures designed specifically to prevent thensurrender of third-state nationals to the court are not per se unlawful. As a result, even if there exist a generalnrule not to frustrate the object and purpose of a treaty, Art. 98 agreementsnnonetheless do not per se violate this rule as they can be read to benconsistent with the purpose and object of the Rome Statute.

Although the view that the content of Art. 98nagreements are per se unlawful were not accepted by many influential states andnscholars, they nonetheless criticize the scope of US agreements as being toonbroad. The persons covered by US BIAs include not only government officials,nemployees, military personnel, and even nationals who act in privatencapacities. For example, EU was among the critics of the BIAs that objected tonthis broad use of 『persons』. It is suggested by the European Union that thenagreements 『should cover only persons present on the territory of a requestednState because they have been sent by a sending State』. The disputes centre onnthe interpretation of the term 『sending state』 in Art. 98(2). The ordinarynmeaning of the terms used in Article 98(2) limits the application of this articlento a narrow scope of persons who are present in the territory of another statenand their legal status is regulated by a status of forces agreements (SOFA) ornSOFA-like agreements concluded between a 『sending』 state and the state wherenthe individual is located. This finding is further supported by both thenlegislative history of this provision, as well as the comments of thoseninvolved in negotiating this particular provision (eg. David Sheffer) Innaddition, in contrast to US BIAs, many other states sought throughnpurpose-drafted treaty provisions -- like the agreement between ISAF and the interimngovernment of Afghanistan which is limited to ISAF and supporting personnel -- tonprevent the surrender to the ICC of those of their military and personal failingnwithin the proper scope of Art. 98(2) of the Rome Statute. Therefore, the scopenof persons covered by the US agreements run counter to the Rome Statute.

Despite that an Art. 98 agreementnmay not be per se contrary to thenprinciple of complementarity under the Rome Statute, USs actions claiming to be based on BIAs may be conflictnwith this principle due to its lack of guarantee of investigation andnprosecution. Under the principle of complementarity, the ICC is obliged to defernconducts falling into its jurisdiction to domestic proceedings when that statenis willing and able to carry out such procedures and actual actions are ongoingnor have been taken. Exceptions can be found in Art. 17 and Art. 98(2), thenlatter of which, according to Amnesty International, is designed to include mechanismsnfor ensuring that a state will investigate and prosecute a suspect. However, nonassurance of investigation exists under US BIAs, and if a state obeys its obligationsnto the US under a BIA at the expense of its obligations under the ICC, thisncould result in the state acting contrary to the principle of complementaritynas enshrined in the Rome Statute.

To conclude, as analysed above,nalthough Art. 98 agreements are not per se unlawful, the US BIAs which claimednby the US to be Art. 98 agreements are not consistent with the Rome Statute.nFor one thing, it is wrong to assume that the US BIAs will protect every USnnationals from the jurisdiction of the ICC, interpretation of Art. 98(2) demonstratesnthat it is only a limited exception to the obligation to cooperate under RomenStatute which covers only persons 『sent』 by another state. For another, thenlack of guarantee for domestic investigation and prosecution can run counter tonthe ICC. In this sense, the statement in question is partially right to thenextent that the US BIAs cannot actually block the jurisdiction of the ICC, asnit is left to the ICC to determine whether these agreements are consistent withnthe Rome Statute. If they are not, the requested states have to comply with itsnobligations to cooperate with the ICC and the principle of complementarity willnallow the ICC to step when there is no action taken by the US to investigate ornprosecute.

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