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 International Reaction |
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Numerous discussions have been taking place at the international
level as countries consider their response to US pressure
to sign a US proposed-agreement
promising not to surrender US nationals to the Court. Click
here to read background on the US campaign.
EUROPEAN UNION POSITION
EU Guiding Principles
The European Union (EU) asked its candidate countries to
not sign any such agreements 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 guiding principles. While binding politically,
these principles do not establish any legal obligations for
EU members.
The guiding principles are as follows:
- "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."
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:
On July 26, 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.
- 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:
- No reciprocity: EU member states cannot agree
to have their own nationals exempted from the jurisdiction
of the Court;
- No immunity: There must be U.S. 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.
- 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 "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 1422.
- On September 25 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 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 26 the European Parliament 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 "governments and parliaments of the EU Member
States" and associated countries "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";
- 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
- 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."
Resolutions, Declarations, Recommendations
|
ACP-EU
Joint Parliamentary Assembly Urgent Resolution on the
Situation in West Africa, October 15, 2003 (affirming
principle of compensation for developing countries suffering
consequences of BIA campaign) |
|
UN
Sub-Commission on the Promotion and Protection of Human
Rights, Draft Resolution on the International Criminal
Court, E/CN.4/Sub.2/2003/L.24, August 7, 2003 |
|
Parliamentary
Assembly of the Council of Europe, Resolution 1336, Threats
to the International Criminal Court, June 25, 2003 |
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European
Union Council Common Position on the International Criminal
Court (doc.10400/03)CFSP, June 2003, strengthening
position in opposing BIA agreements |
|
Joint
Parliamentary Assembly of the (Partnership Agreement Between
the African, Caribbean and Pacific Group of States and
the European Community and its Member States) ACP-EU
Resolution on the International Criminal Court (ICC),
ACP-EU 3560/03/fin., March 2003 |
|
"Proyecto
de Declaracion" (Declaration) from the Argentine Senate
regarding the request made by the American Government
on the ICC, unanimously adopted March 6, 2003. |
|
European
Parliament Resolution on the General Affairs Council's
position concerning the International Criminal Court,
P5_TA-PROV(2002)0521, adopted October 24, 2002 |
|
Resolution
Submitted to the National Congress of Uruguay on Bilateral
Immunity Agreements, October 17, 2002 |
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Council
Conclusions on the International Criminal Court including
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, 12488/1/02 REV 1LIMITE
COJUR 10USA 37PESC 374, September 30, 2002 |
|
European
Parliament resolution on the International Criminal Court
(ICC), P5_TA-PROV(2002)0049, September 26, 2002 |
|
Parliamentary
Assembly of the Council of Europe, Resolution 1300, Risks
for the Integrity of the Statute of the International
Criminal Court, September 25, 2002 |
|
Parliamentary
Assembly of the Council of Europe, Recommendation 1581,
Risks for the Integrity of the Statute of the International
Criminal Court, September 25, 2002 |
|
Sub-Commission
on the Promotion and Protection of Human Rights ICC Resolution,
E/CN.4/Sub.2/2002/L.11, Establishment of the International
Criminal Court, Adopted at the Fifty-fourth session
held on August 13, 2002 |
|
Declaration
by the Presidency of the European Union on the UN Security
Council's unanimous decisions concerning Bosnia-Herzegovina/International
Criminal Court, July 13, 2002 |
Statements and Reports
|
Brazilian
Press Release 033/2003 - US Military Aid and the International
Criminal Court, July 2, 2003 |
|
Speech
by the President of the Parliamentary Assembly of the
Council of Europe Peter Schieder at the 4th Parliamentary
Conference on the Stability Pact for South-Eastern Europe,
May 21, 2003 |
|
EU/Albania:
Commission Expresses Concerns over Criminal Court Deal
with US, European Report, May 10, 2003, No. 2775 |
|
Letter
written by Deputy Tarcisio Navarette, MP (Mexico) to Foreign
Minister Luis Ernesto Derbez, urging Mexico to oppose
both BIAs and the Renewal of UNSC 1422, April 24, 2003. |
|
UK
Parliament Debate, February 25, 2003 |
|
Article
98.2 Statute ICC ö Overview of ÎExisting Treaties' Relevant
for US Citizens Staying in the Netherlands, J.G. de
Hoop Scheffer, Minister of Foreign Affairs, The Netherlands,
January 21, 2003 |
|
Statement
by Per Stig Moller, Foreign Minister of Denmark, holding
the EU Presidency, Ottawa Citizen, November 5, 2002 |
|
German
Government, Supportive Interpretation of and Commentary
on the EU General Affairs Council Conclusions on the International
Criminal Court of 30 September 2002, October 24, 2002 |
|
Government
References to bilateral immunity agreements, September-October
2002 |
|
Foreign
Minister's statement, on behalf of the Council, at the
European Parliament's plenary on the state of play regarding
the International Criminal Court following the informal
meeting of Foreign Ministers in Elsinore on 29 and 30
August 2002, September 25, 2002 |
|
Parliamentary
Assembly of the Council of Europe, Report on the Risks
for the Integrity of the Statute of the International
Criminal Court, Doc. 9567, Committee on Legal Affairs
and Human Rights, Rapporteur Mr. Dick Marty, Switzerland,
Liberal, Democratic and Reformers' Group, September 25,
2002 |
|
Statement
by Mr. Pattern, European Commissioner for DG External
Relations, at the European Parliament, September 25, 2002 |
|
Statement
by His Excellency Arthur N.R. Robinson, President of the
Republic of Trinidad and Tobago, concerning the United
States administration's campaign against the International
Criminal Court, August 23, 2002 |
|
European
Commission's legal opinion (Legal Service), regarding
bilateral agreements with the US, August 13 2002, Human
Rights Law Journal (HRLJ) 2002, vol. 23, p. 158 |
Decision Not to Renew (2004)
Resolution 1487 (2003)
Statements on US draft resolutions made at a June 12, 2003
open Security Council meeting by:
|
Secretary
General Kofi Annan |
|
Brazil |
|
Canada |
|
France |
|
Germany |
|
Greece,
on behalf of the EU and affiliated states (including
the acceding countries Cyprus, the Czech Republic, Estonia,
Hungary, Latvia, Lithuania, Malta, Poland, the Slovak
Republic and Slovenia; the associated countries Bulgaria
and Romania; the EFTA countries members of the European
Economic Area, Iceland and Norway) |
|
Iran |
|
Jordan |
|
Liechtenstein |
|
Netherlands |
|
Pakistan |
|
South
Africa |
|
United
States |
|
Uruguay |
Resolution 1422 (2002)
|
European
Parliament resolution on the International Criminal Court
(ICC), P5_TA-PROV(2002)0049 September 26, 2002 |
|
Text
of a Letter from the President to the Speaker of the House
of Representatives and the President Pro Tempore of the
Senate, July 22, 2002, on SC Res. 1422 |
|
Declaration
by the Presidency of the European Union on the UN Security
Council's unanimous decisions concerning Bosnia-Herzegovina/International
Criminal Court, July 13, 2002 |
|
Letter
sent to the President of the UN Security Council in relation
to the draft resolution S/2002/747. The letter was
signed by the Ambassadors of New Zealand, South Africa,
Brazil and Canada on Friday, July 12, 2002. |
|
Letter
from Secretary General Kofi Annan to Secretary of State
Colin Powell, July 3, 2002 |
|
Letter
to the President of the Security Council from the 10th
PrepCom, July 3, 2002 |
|
Excerpts
from government statements at the Special Plenary of the
10th PrepCom on 3 July 2002 |
Statements on US draft resolutions made at a July 10, 2002
open Security Council meeting by:
|
European
Parliament resolution on the draft American Servicemembers'
Protection Act (ASPA), P5_TA-PROV(2002)0367, Consequences
for transatlantic relations of law on the protection of
US Personnel, July 4, 2002 |
|
Statements
in European Parliament by Europe Minister Bertel representing
the EU Danish Presidency and Mr. David Byrne, on behalf
of Chris Patten, European Commissioner for External Relations,
Consequences for Transatlantic Relations of the Law on
the Protection of US Personnel, July 3, 2002 |
|
European
Union Statement by Europe Minister Bertel Haarder, July
3, 2002 |
|
Letter
from EU to ASPA House and Senate conferees, June 18, 2002 |
|
General
Affairs Council of EU, "Council Conclusions on the International
Criminal Court (ICC) and the Draft US American Servicemembers'
Protection Act (ASPA)," conclusions of 17th of June 2002 |
|
The
Netherlands House of Representatives of the States General
Interpellation regarding the US American Service Members'
Protection Act (ASPA), June 13, 2002 |
|
Text
of letter to US Secretary of State Colin Powell on behalf
of the European Union transmitted on October 30, 2001 |
|
Text
of letter to US Senator Daschle, majority leader of the
US Senate, on behalf of the European Union transmitted
on October 30, 2001 |
|
Text
of letter from German Foreign Minister to Secretary of
State Colin Powell dated October 24, 2001, delivered on
October 31, 2001 |
|
Debate
on the ICC in the UK House of the Commons, Westminster
Hall, January 14, 2003 |
|
Statement
of the EU on the position of the United States of America
towards the International Criminal Court, UN/DOC/PCNICC/2002/INF/7,
May 20, 2002 |
|
Declaration
by the EU on the position of the US towards the International
Criminal Court, May 13, 2002 |
|
European
Parliament resolution on entry into force of the Statute
of the International Criminal Court, P5_TA(2002)0082,
February 28, 2002 |
|
Aide-Mémoire,
European Union's View of the Bush Administration Policy
Toward International Criminal Court, June 2001 |
|
Ambassador Larry Napper, OSCE Human Dimension Implementation Meeting, Warsaw, Poland, October 8, 2004 |
|
Statement
by the US Embassy (NL), "The International Criminal Court
and Reaction to the American Servicemembers' Protection
Act" June 12, 2002 |
|
United
States Mission to the OSCE Statement on the International
Criminal Court, Delivered by Chargé d'Affaires
Douglas A. Davidson to the Permanent Council, Vienna,
May 16, 2002 |
Read media reports on the international
response to the US position.
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