Forum Bioethik Info der Koalition gegen Straflosigkeit/ Okt.2002

Dear all,

This tool kit provides a current and in-depth profile of the US
pursuit of bilateral so-called "Article 98" agreements -- dubbed
'impunity' agreements by NGOs and also know as 'exemption' or
'non-surrender' agreements -- that is the most recent tactic of the
US government to secure immunity from the jurisdiction of the
International Criminal Court (ICC or Court) for its nationals.

On May 6, 2002, US Under-Secretary General for Political Affairs Marc
Grossman announced that the United States had formally denounced its
signature of the ICC's founding treaty - the Rome Statute - in a
letter from US Under Secretary of State for Arms Control and
International Security John Bolton to UN Secretary General Kofi
Annan.  Since that time, the US has waged a multi-pronged attack on
the Court that has included the August 2, 2002 signature of the
American Servicemembers' Protection Act (see CICC press release at by President
Bush on at the domestic level, and the July 12, 2002 adoption of UN
Security Council Resolution 1422 (see CICC press release at as well
as the ongoing pursuit of so-called "Article 98" agreements at the
international level.

The NGO Coalition for the ICC has received numerous analyses from
government, NGO and independent legal experts which unanimously
conclude that these US bilateral agreements are contrary to the Rome
Statute and are not permitted under Article 98 of that treaty, as the
agreements have been billed.  Legal experts with the NGO Coalition
for the International Criminal Court are disappointed by the Bush
administration decision to not only formally disengage the US from
supporting the Rome Statute but also to actively undermine the Court.
They condemn US strong-arm tactics, such as threats of economic
sanctions and the withdrawal of military support, to coerce countries
into signing these accords.  NGO experts furthermore point out that
many governments would be in violation of national extradition laws
if they signed such an agreement.

This 'tool kit' contains detailed information about the US so-called
"Article 98" agreements from a number of sources.  These resources
are divided into the following sections:

1) A list of countries to have signed agreements
2) A summary of other government responses
3) Media resources and strategy documents created by the Coalition for the
4) NGO statements to governments
5) Public statements from governmental and intergovernmental officials
6) NGO and government statements at the first session of the Assembly
of States Parties meeting
7) A US proposed template of "Article 98" agreements



As of Wednesday, September 25, 2002, the following countries have reportedly
signed "Article 98" agreements.  Countries marked with an asterisk
have indicated that these agreements must be approved at the
parliamentary level before they become binding; other countries on this list
also require parliamentary approval.

East Timor*
Dominican Republic
Marshall Islands


The following governments have publicly indicated that they are
unlikely to sign US "Article 98" agreements: Argentina, Austria,
Canada, Croatia, France, Germany, the Netherlands, Norway, Sweden,
Switzerland, Trinidad and Tobago and Yugoslavia.  In addition to
these statements at the national level, numerous discussions have
taken place at the international level as countries consider their
response to the request to sign these agreements.

The Council of Europe -- a stronghold of support for the Court that
counts 42 of its member states as signatories to the Rome Statute,
and 33 as States - has taken the discussion of these agreements
seriously and held a number of meetings in this regard.  The matter
of the US requests for bilateral exemption agreements was first
discussed in the European Council by the Political and Security
Committee (PCS) on July 26.  It was agreed that a common position
amongst the members of the European Union should be sought and that
any resolution must not undermine the ICC. A Common  Position of the
Council of Europe is expected to be announced on Monday, September 30.

In mid-August, the European Commission produced a legal analysis that
concluded that any State Party to the ICC treaty entering into such
an agreement would, in so doing, "act against the object and purpose
of the Statute and thereby violate its general obligation to perform
the obligations of the Statute in good faith."  The legal analysis
furthermore highlighted that Article 98 of the Rome Statute only
permits agreement between States Parties to the Rome Statute.

On September 5, the legal chiefs of the fifteen European Union
members' Ministries of Foreign Affairs that comprise the EU Council
Working Group on Public International Law (COJUR) met in Brussels.
That group likewise concluded that the US request for blanket
immunity for all Americans was unacceptable.  The meeting of the
COJUR further put forward three recommendations for consideration in
any non-surrender agreements: assurance of a fair trial in an
alternate venue, extradition of only non-EU nationals, and no
extradition that would apply to the broad category of persons
included in the US-proposed agreements.

On September 10, also in Brussels, a meeting of the ambassadors of
the Political and Security Committee (PCS) further discussed "Article
98" agreements.  The group unanimously endorsed the conclusions of
the September 5 COJUR meeting, and all but one member of the
intergovernmental body agreed that the EU Presidency could speak on
behalf of its 15 member states.  NGOs learned from those privy to the
negotiations that the opposition to an EU consensus came from the
United Kingdom.  Were the UK to stand in the way of an EU Common
Position on so-called "Article 98" agreements, it would be the second
time that country aligned itself with the United States on proposals
considered to be contrary to the Rome Statute, following the US-UK
cooperation that lead to the adoption of Security Council Resolution

On September 24 in Strasbourg, the European Parliament heard
statements by the President-in-Office of the EU Council and the
European Commissioner for External Relations.  It was revealed in
those statements that EU member states are in agreement that US
demands are inconsistent with states' obligations with regard to the
ICC, yet, with regard to the importance of transatlantic relations,
the EU would not flatly reject the US proposal.  Negotiations, it was
emphasized, are still ongoing and the EU is working hard to find a
solution which will meet US concerns while doing nothing to undermine
the Court.

On September 25 the Parliamentary Assembly of the Council Europe
passed a non-binding resolution expressing the opinion of the highest
democratically-elected body in Europe on these non-surrender
agreements.  The resolution
( calls on all
members and observer States of the Council of Europe "not to enter
into any bilateral 'exemption agreements' and reminds states that
Article 86 of the Rome Statute provides that the Court's jurisdiction
applies equally to all persons.  The resolution further expresses the
Parliament's belief that the currently proposed agreements are
illegal under the Vienna Convention on the Law of Treaties, which
states that Parties to the treaty must refrain from any action
inconsistent with the object and purpose of that treaty, and
highlights concerns regarding the potential renewal of Security
Council 1422 in July 2003.

A number of countries and intergovernmental bodies are awaiting the
announcement of an EU Common Position on these non-surrender
agreements at a meeting on September 30th.  Members of the NGO
Coalition for the ICC strongly encourage EU governments to uphold the
Common Position on the ICC June 2001, whose overarching goal is to
ensure the full effectiveness of the ICC and which, according to an
August 13, 2002 European Commission record, makes it "inconceivable
to reconcile that commitment with any attempt to give positive
consideration to the US proposal."


Q&A on US So-Called "Article 98" Agreements:

CICC Memorandum to Members and Governments Regarding "Article 98"

CICC Press Release on the Use of Economic Sanctions to Secure
Bilateral Agreements:


CICC Letter to Governments of States Parties:

CICC Letter to Governments of Non-States Parties:

Parliamentarians for Global Action's Analysis of "Article 98"
Agreements and Model Parliamentary Resolutions to preserve the
Integrity of the ICC

Amnesty International:

Fédération Internationale des Ligues des Droits de l'Homme (FIDH):

Human Rights Watch:


- Reference to the ICC in the new National Security Strategy of the
United States of America (p. 31):

Excerpt: "We will take the actions necessary to ensure that our
efforts to meet our global security commitments and protect Americans
are not impaired by the potential for investigations, inquiry, or
prosecution by the International Criminal court (ICC), whose
jurisdiction does not extend to Americans and which we do not accept.
We will work together with other nations to avoid complications in
our military operations and cooperation, through such mechanisms as
multilateral and bilateral agreements that will protect US nationals
from the ICC.  We will implement fully the American Servicemembers
Protection Act, whose provisions are intended to ensure and enhance
the protection of US personnel and officials."

- Wall Street Journal / September 20, 2002 / COMMENTARY
Original Intent at the Global Criminal Court
By DAVID J. SCHEFFER, Former Ambassador at Large for War Crimes
Issues and President of the United Nations Association for the USA

Excerpt: "As the Clinton administration's chief negotiator of the
treaty on the International Criminal Court, I have lost my patience
with the largely Euro-American debate about special agreements
designed to protect American suspects from surrender to the court.
These agreements are permitted by Article 98 of the treaty for a
reason, but they also have their limitations."

- Financial Times / September 24, 2002 / Comment & Analysis: Letters
International relations depend on approaching concerns multilaterally
By Dr. Palitha Kohona, Chief of the UN Treaty Section
c==StoryFT&cid= 31119588806&p= 12571727279

Excerpt: "It is only when a country refuses to join a multilateral
for its own reasons or breaches its obligations under the
multilateral treaty framework that we tend to hear about it. Thus our
attention is constantly drawn to the refusal of the US to ratify the
Kyoto protocol or of its opposition to the Rome Statute of the
International Criminal Court.

Recent history demonstrates that multilateral approaches to address
common concerns, with objectives carefully defined, offer a higher
level of comfort to the international community, especially to weaker
members, and the general prospect of success, despite certain
drawbacks, including often slower rates of progress towards
established goals. They encourage a sense of commitment and
participation from all states to a cause and a lower level of
opposition. Very importantly, they contribute to enhancing the
international rule of law and the progress towards a global relations
system based less on brute arbitrary force."


Statements on behalf of a number of NGOs and governments can be found
in the documents section of the CICC web site at


For further information or for assistance in reaching a legal expert
for interview, please do not hesitate to contact me through the
information provided below.

Best regards,
  Adele Waugaman,  Media Liaison
  Coalition for the International Criminal Court

  777 UN Plaza, 3rd Floor, New York NY 10017 USA
  T:+ 212.687.2176
  F:+ 212.599.1332

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