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EU condemned for failing to stand up to US on International Criminal Court (1)

01 October 2002

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

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US/EU/ICC
Farcical birth of International Criminal Court

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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-ru