Bilateral Immunity Agreements
Bilateral immunity agreements (BIAs) guarantee that other countries will deliver Americans wanted by the ICC to the United States, not to the Court. The intent of the BIAs was to ensure that Americans would not be handed over to the ICC without the permission of the United States. The BIAs remain in force today, although the anti-ICC sanctions on countries refusing the agreements have been repealed. None of these agreements have ever been implemented.
The Bush administration conducted a vigorous campaign of trying to conclude BIAs to remove US nationals from the reach of the Court. By the end of its term, the Bush administration had concluded BIAs with over 100 nations, the last with Montenegro on April 19, 2007. The administration claimed that these agreements met the requirements of Article 98(2) of the ICC's Rome Statute:
The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
The US pressed countries to agree to a draft text that would prevent them from delivering "current or former Government officials, employees (including contractors), or military personnel or nationals of one Party" - including both US and non-US nationals - to the ICC. In reaction to the campaign, the European Union adopted a framework of 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.
The Bush administration claimed that these agreements were authorized by Article 98(2). In fact, Article 98(2) only addresses treaties between countries covering persons that they have sent to each other on official business. The article's wording explicitly requires the existence of a "sending state" relationship, such as when US military and civilian personnel are sent to a receiving state by the US government pursuant to Status of Forces or Status of Mission Agreements (SOFAs or SOMAs). Such treaties often say that if such a person commits a crime in a country where he or she has been sent, he or she is to be returned to the sending country.
PURPORTED BASIS FOR THE CAMPAIGN
While many people have the impression that Article 98(2) was drafted by the US to create a loophole from the jurisdiction of the ICC, it actually grew out of the concerns of many states that their existing obligations under surrender agreements, especially Status of Forces or Status of Mission Agreements, could conflict with their obligation to cooperate with the ICC. Therefore, parallel to Article 98(1), which addresses conflicts between the Rome Statute and diplomatic immunity, Article 98(2) was developed to resolve potential conflicts in other kinds of situations where individuals have entered a state's territory on official US business, whether pursuant to a SOFA, SOMA, or perhaps even an extradition agreement.
The agreements the US sought do not deal solely with the conduct of official business. They apply to any of a wide variety of persons who may be on the territory of either party for any purpose at any time. Therefore, the Rome Statute does not authorize these agreements and by adhering to them the countries will violate their obligations to the Court under the Rome Statute.
Although the US said that it did not apply pressure on states to sign non-surrender agreements, some US government officials indicated that a state's unwillingness to sign had affected US support for its entry into NATO and lead to the cut off of US military aid. While some officials argued that the administration was obligated by the American Servicemembers' Protection Act (ASPA) to withhold military aid from states parties that do not conclude such agreements, State Department Deputy Spokesman Philip T. Reeker acknowledged that ASPA "does not prevent the United States from providing military assistance to any country when the president determines that such assistance is important to the national interests." There were reports in the media and by foreign officials and NGOs of threats made toward smaller countries to cut off non-military aid as well. At the request of the US military, these sanctions were later repealed.