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EU condemned for failing to stand up to US on International Criminal Court

28 March 2012

The EU has been strongly condemned today for failing to stand-up to US attempts to secure immunity for its citizens from the International Criminal Court which is currently being set-up to prosecute people accused of genocide, crimes against humanity and war crimes.

The ICC was created under the July 1998 Rome statute which entered force in July of this year. The Bush administration has opposed the court since coming power, passing domestic legislation against it, making the unprecedented diplomatic step of withdrawing the original US signature by Clinton and pushing for UN Security Council Resolutions to exempt UN peacekeeping operations from the ICC's jurisdiction.

More recently it has begun pursuing a new tactic to exploit Article 98 of the Rome Treaty which says that a country cannot be forced to hand over a suspect to the ICC if it has a bilateral agreement with the country whose citizens are wanted for trial. American embassies throughout the world have since been pressuring national governments to enter into such bilateral agreements (see below for background/analysis).

The EU conclusions

Yesterday (Monday 30) the EU General Affairs Council (GAC) agreed a set of conclusions meant to act as guidelines for any state considering entering into bilateral agreements with the US on the ICC. However, rather calling upon states to reject the US approaches, it issued a set of vague 'benchmarks' which leave open the potential for US immunity. In a press release, Cecilia Malmström MEP, a Swedish member of the ELDR (liberal group) commented:

"It is a shame that the Council now allows Member States to broker deals on exempting Americans from the jurisdiction of the International Criminal Court. Each person guilty of genocide or other crimes against humanity must be prosecuted and punished, irrespective of citizenship. Why does the Union choose to abdicate from international justice? It is a great disappointment that many ministers are pleased with yesterday's deal. The Council's decision jeopardises the existence of the ICC and is also a major setback for the Common Foreign and Security Policy. It is a tragedy that the Union has failed in creating a common line in this important issue."

The GAC conclusions also appear to violate the EU's earlier legally binding Common Position of 11 June 2002 in which the member states pledged full support for the ICC. While the GAC maintains that the guidelines will "preserve the integrity of the Rome Statute", Lotte Leicht of Human Rights Watch suggests:

"Without an express guarantee of ICC oversight of national prosecutions, agreements with the United States would permit impunity. They would allow the surrender of an ICC suspect to national authorities on the basis of a promise to investigate and prosecute that the ICC would be unable to review. The whole point of the ICC is never to rely on unverified national pledges to bring offenders to justice."

See also: International Herald Tribune

US/EU/ICC
Farcical birth of International Criminal Court

Statewatch bulletin, vol 12 no 3/4, May-August 2002

On 17 July 1998, the Rome Statute on the creation of an International Criminal Court (ICC) to prosecute people accused of genocide, crimes against humanity and war crimes was agreed. The treaty was welcomed by governments, lawyers and civil society groups as the most significant development in international law since the UN Charter more than 50 years before. For the court to be established sixty states had to ratify the treaty. The sixtieth was marked by a ceremony at the UN headquarters in New York on 11 April 2002 and the Rome Statute duly entered into force on 1 July. The ICC will be located in The Hague, the Netherlands, and is expected to be up-and-running in the first half of next year. 139 states have now signed the treaty and over half have ratified it.

US and them

In keeping with the new mantra of US unilateralism and disregard for international law, the Bush administration has condemned the ICC since coming to power, 'unsigning' the Rome treaty and signing domestic legislation against the future court. In May it took a further step, attempting to insert a paragraph into a UN Security Council Resolution on East Timor to remove the actions of peacekeepers there from the jurisdiction of the ICC. This proposal was rejected, but the US reintroduced its demands on 19 June in regard to the renewal of the UN peace-keeping operation in Bosnia-Herzegovina and also proposed a general resolution to exempt peace-keepers from non-ICC states stationed anywhere in the world. This time it threatened to withdraw all US personnel from all UN peace-keeping operations if it did not get its way.

Opposition from the international community was fierce and lead by an apparently united EU which together with the 10 accession candidate states expressed its "deep regret" through the current Danish presidency. Kofi Annan, UN Secretary General, publicly told the US to reconsider, governments from no-less than 116 UN member countries stated their opposition, while the UK ambassador to the USA, Jeremy Greenstock said the UK was "unalterably opposed".

A temporary extension of the UN Bosnia mandate was agreed on 21 June and again on 3 July, giving the UN Security Council a further 12 days to resolve the situation. During this period, opposition to the US proposals among key states weakened considerably, first with UK backing for the US demands, followed soon after by four more of the 15 voting Security Council members: Russia, Norway, China and Cameroon. In an open-session of the UN Security Council on 10 July, representatives of 72 countries made statements again opposing the proposal, but on 12 July, the other nine voting states - Bulgaria, Columbia, France, Guinea, Ireland, Mauritius, Mexico, Singapore and Syria - accepted a "compromise" and adopted Resolution 1422 (2002).

UN Security Council Resolution amends Treaty

It is hard to see how the Resolution can be described as compromise. Article 1 requests UN states not to allow ICC investigation or prosecution of officials or personnel from a country not Party to the Rome Statute (such as the US) involved in any "UN established or authorized operation", for a twelve-month period, starting on 1 July 2002. Article 2 provides for annual renewal of Article 1 "under the same conditions each 1 July for further 12-month periods for as long as may be necessary" (this rolling extension is the "compromise"). Article 3 orders the member states to abide by Article 1 and their UN obligations.

The Resolution raises various questions as to the effect and validity of international law-making. It is based on Chapter VII of the UN Charter, requiring the Security Council to consider a "threat to the peace", "breach of the peace" or "an act of aggression", though it is quite obvious that none of these conditions apply to the ICC (the US argued that the crisis it had contrived in threatening to withdraw its peacekeepers from Bosnia constituted a "threat to the peace"). Under Article 3 all UN member states must act in direct contravention of the object and purpose of the ICC treaty, with the overall effect that UNSC Resolution 1422 (2002) - which was opposed by a large majority of UN member states and agreed by only 15 - breaches the UN mandate and unlawfully amends an international treaty now ratified by 76 countries.

"Zero exposure" of US soldiers to ICC jurisdiction

The Coalition for an International Criminal Court (CICC), which represents more than 1,000 NGOs and civil society groups that support the ICC, has conducted a survey of all 16 current UN peace-keeping operations and concludes that:

"In every UN peacekeeping mission, the US either has no personnel in the mission, the host state is not a party to the ICC, or the ICTY [International Tribunal for the former Yugoslavia] has primacy. Thus, total US exposure to the ICC is zero in every case"

Moreover, under the principle of "complementarity", the ICC will only take cases when national legal systems are unwilling or unable to do so. This means that US prosecutors could easily prevent cases reaching the ICC by conducting a "good faith investigation" themselves. Additionally, the jurisdiction of the ICC - over "the most serious of crimes of concern to the international community as a whole" - is limited to widespread or systematic crimes against humanity and war crimes offences that are planned or part of policy and therefore unlikely to ever cover peacekeepers. The ICC also respects 'SOFAs' (Status of Forces Agreements) which are usually negotiated between the countries hosting peacekeeping forces and give exclusive jurisdiction over alleged offences to the state that supplies the soldiers (in January, the UK negotiated this kind of agreement with Afghanistan on behalf on the 19 states with a military presence in the country). Finally, it should also be pointed out that the ICC can only examine crimes committed after the entry into force of the statute, so contrary to the hopes of human rights campaigners, former US secretaries of state and intelligence chiefs are also immune from prosecution.

The bigger picture

Through the UN Resolution, the US has achieved immunity from ICC jurisdiction not just for its peace-keepers, but any personnel involved in planning or commanding the operations. And not just peace-keeping operations but any military action approved by the Security Council, (for example, the US led war in Afghanistan). This has all been done under the pretext of protecting US "peace-keepers" from injustice, despite their de facto position outside the ICC's jurisdiction anyway. The only logical conclusion is that the US wants to undermine the ICC and prevent it developing into the future world criminal court its supporters promote.

EU shows a different enthusiasm

While the USA wants little to do with the ICC, the EU appears a strong supporter. By mid-2002 all 15 member states had ratified the Rome Treaty and on 11 June adopted an EU Common Position pledging full support for the ICC (quite how the UK has interpreted this common position is unclear given that is now widely reported that it cooperated closely with the US on its demands for immunity from the outset).

On 13 June, the EU Justice and Home Affairs adopted a Decision setting up a network of contact points for ICC investigations, prosecutions and information exchange. This Decision went largely unnoticed until the Danish Presidency of the EU proposed that the network should be used to screen all applicants for asylum or residence - not just for "war crimes" but for "similar serious offences including terrorism". "War crimes", "terrorism" and "similar serious offences" are not defined. In an analysis of the proposal, Statewatch concluded that:

"The proposed Decision could have the Kafkaesque result that persons, including genuine refugees, EU citizens and their family members, are denied a residence permit without ever knowing the reasons why or having a chance to challenge these reasons".

Security services have been demanding open-ended powers to become involved in visa, asylum and residence applications since 11 September, despite the fact that any such powers contravene established processes and human rights.

The way the US and EU are going, the ICC appears not as the fledgling "world court" and neutral arbiter of international law the world was promised, but little more than another mechanism for the West to subject the rest of the world to their own visions of justice.

Sources: www.iccnow.org; EU Common Position 2001/443/CFSP on the ICC; EU Decision 2002/494 on exchange and information and contact points for ICC; Proposed EU Council Decision on the investigation and prosecution of war crimes etc., 10204/02, 19.6.02 (for analysis of this proposal see Statewatch News Online, July 2002