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US & ICC > Bilateral Immunity Agreement Campaign > Reaction to BIAs

During the Bush administration, the US conducted a Bilateral Immunity Agreement (BIA) Campaign intended to shield US nationals from the jurisdiction of the Court. As a major part of the campaign, the US pressured non-NATO allies to sign an agreement promising not to surrender US nationals to the ICC. If they refused, they would lose US military and economic aid.

This page includes information on how governments, including those comprising the European Union (EU), as well as NGOs reacted to the US campaign and how they sought to limit the impact of it.

European Union Reaction

EU Guiding Principles

Immediately following the start of the BIA Campaign, the EU asked its candidate countries to not sign BIAs with the US until the Union determined its common position on the matter. This was done on September 30, 2002, when the EU Foreign Ministers adopted a framework of EU Guiding Principles concerning Arrangements between a State Party to the Rome Statute of the International Criminal Court and the United States Regarding the Conditions to Surrender of Persons to the Court:

  • Existing agreements: Existing international agreements, in particular between an ICC State Party and the United States, should be taken into account, such as Status of Forces Agreements and agreements on legal cooperation on criminal matters, including extradition;
  • The US proposed agreements: Entering into US agreements - as presently drafted - would be inconsistent with ICC States Parties' obligations with regard to the ICC Statute and may be inconsistent with other international agreements to which ICC States Parties are Parties;
  • No impunity: any solution should include appropriate operative provisions ensuring that persons who have committed crimes falling within the jurisdiction of the Court do not enjoy impunity. Such provisions should ensure appropriate investigation and - where there is sufficient evidence - prosecution by national jurisdictions concerning persons requested by the ICC;
  • Nationality of persons not to be surrendered: any solution should only cover persons who are not nationals of an ICC State Party;
  • Scope of persons:
    • Any solution should take into account that some persons enjoy State or diplomatic immunity under international law, cf. Article 98, paragraph 1 of the Rome Statute.
    • Any solution should cover only persons present on the territory of a requested State because they have been sent by a sending State, cf. Article 98, paragraph 2 of the Rome Statute.
    • Surrender as referred to in Article 98 of the Rome Statute cannot be deemed to include transit as referred to in Article 89, paragraph 3 of the Rome Statute.
  • Sunset clause: The arrangement could contain a termination or revision clause limiting the period in which the arrangement is in force.
  • Ratification: The approval of any new agreement or of an amendment of any existing agreement would have to be given in accordance with the constitutional procedures of each individual state.

While binding politically, these principles do not impose any legal obligations on EU Member States.

Background on EU Position

Efforts directed by the principle EU organs - the Council, the Commission and the Parliament - leading up to the adoption of the common position include:

July 26, 2002 The Political and Security Committee (PCS) of the European Council agreed that a common EU position should be sought and that any resolution must not undermine the ICC.

Mid-August 2002 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.

September 5, 2002 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:

  • No reciprocity: EU member states cannot agree to have their own nationals exempted from the jurisdiction of the Court;
  • No immunity: There must be US agreement that any individual accused of crimes within the jurisdiction of the Court will be investigated or tried "where appropriate"; and
  • Limited applicability: The agreement can only apply to individuals who are "sent" between the agreeing states i.e., only current government employees or military personnel who are in the country on official business often under a SOFA or SOMA.

September 10, 2002 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 "Article 98" agreements, it would be the second time that country aligned itself with the US on proposals considered to be contrary to the Rome Statute, following the US-UK cooperation that lead to the adoption of UN Security Council Resolution 1422.

September 25, 2002 In Strasbourg, the European Parliament heard statements by the President-in-Office of the EU Council (Denmark) and the European Commissioner for External Relations, Mr. Chris Patten (UK). It was revealed in those statements that EU Member States were 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.

September 26, 2002 The European Parliament passed a non-binding resolution, expressing the opinion of the highest democratically-elected body in Europe on these non-surrender agreements, which: "[e]xpects governments and parliaments of the EU Member States to refrain from adopting any agreement which undermines the effective implementation of the Rome Statute; considers in consequence that signing such an agreement is incompatible with membership of the EU"; and is the first official document of an international institution that "urges Member States, candidate countries and all other associated countries to undertake an analysis of the legal implications of Security Council Resolution 1422, and calls for strong action against the renewal of the UN Security Council Resolution in July 2003."

Other International, Regional and National Reactions

Resolutions, Declarations and Recommendations

Statements and Reports

Legal and Policy Analysis

Opinion

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