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
- ACP-EU Joint Parliamentary Assembly Urgent Resolution on the Situation in West Africa (affirming principle of compensation for developing countries suffering consequences of BIA campaign) (October 15, 2003)
- 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)
- European Union Council Common Position on the International Criminal Court (doc.10400/03)CFSP (strengthening position in opposing BIA agreements) (June 2003)
- 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)
- Argentine Senate, "Proyecto de Declaracion" (Declaration) (regarding the request made by the American Government on the ICC) (March 6, 2003)
- European Parliament, Resolution on the General Affairs Council's position concerning the International Criminal Court, P5_TA-PROV(2002)0521 (October 24, 2002)
- National Congress of Uruguay Resolution Submitted on Bilateral Immunity Agreements (October 17, 2002)
- Council of the European Union, 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)
- UN Sub-Commission on the Promotion and Protection of Human Rights, Resolution on Establishment of the International Criminal Court, E/CN.4/Sub.2/2002/L.11 (August 12, 2002)
- Presidency of the European Union, Declaration on the UN Security Council's Unanimous Decisions Concerning Bosnia-Herzegovina/International Criminal Court (July 13, 2002)
Statements and Reports
- Government of Brazil, Press release, US Military Aid and the International Criminal Court (July 2, 2003)
- President of the Parliamentary Assembly of the Council of Europe Peter Schieder, Speech at the 4th Parliamentary Conference on the Stability Pact for South-Eastern Europe, Brussels (May 21, 2003)
- European Report, EU/Albania: Commission Expresses Concerns Over Criminal Court Deal with US (May 10, 2003)
- Member of House of Deputies (Mexico) Tarcisio Navarette, Letter to Foreign Minister Luis Ernesto Derbez (urging Mexico to oppose both BIAs and the renewal of UN Security Council Resolution 1422 (April 24, 2003)
- Parliament of the United Kingdom, Debate on the International Criminal Court (February 25, 2003)
- Minister of Foreign Affairs J.G. de Hoop Scheffer, Article 98.2 Statute ICC - Overview of 'Existing Treaties' Relevant for US Citizens Staying in the Netherlands, The Netherlands (January 21, 2003)
- Foreign Minister of Denmark Per Stig Moller, Ottawa Citizen (November 5, 2002)
- Government of Germany, Supportive Interpretation of and Commentary on the EU General Affairs Council Conclusions on the International Criminal Court of 30 September 2002 (October 24, 2002)
- Governments of Australia, Canada, Croatia, Costa Rica (on behalf of the Rio Group), Denmark (on behalf of the European Union), Ghana, Lesotho, Liechtenstein, Macedonia, Mexico, New Zealand, Philippines and Sierra Leone, Statements in the UN General Assembly and Assembly of States Parties (on 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 (September 25, 2002)
- Mr. Pattern, European Commissioner for DG External Relations, European Parliament (September 25, 2002)
- President of the Republic of Trinidad and Tobago Arthur N.R. Robinson (concerning the United States administration's campaign against the International Criminal Court) (August 23, 2002)
- Legal Service of the European Union Commission, Effective Functioning of the International Criminal Court (ICC) Undermined by Bilateral Immunity Agreements as Proposed by the US (August 13, 2002), in 23 Hum. Rts. L. J. 158 (2002)
Legal and Policy Analysis
- World Federalist Association, Factsheet: Effects of the Article 98 Campaign (December 2003)
- World Federalist Association, Factsheet: Breakdown of Countries (September 23, 2003)
- James Crawford SC, Philippe Sands QC and Ralph Wilde, Joint Opinion, In the Matter of the Statute of the International Criminal Court and in the Matter of Bilateral Agreements Sought by the United States Under Article 98(2) of the Statute (June 2003)
- Fédération Internationale des Ligues des Droits de L'Homme (FIDH), No to American Exceptionalism - Under Cover of the War Against Terrorism, a Destructive US Offensive Against the ICC (an authoritative view of the BIA campaign from the European perspective (December 2002)
- Amnesty International, International Criminal Court: The Need for the European Union to Take More Effective Steps to Prevent Members from Signing US Impunity Agreements (October 10, 2002)
- Coalition for the International Criminal Court (CICC), Memo: Bilateral Agreements Proposed by US Government (August 23, 2002)
- Human Rights Watch, United States Efforts to Undermine the International Criminal Court: Article 98 Agreements (August 2, 2002)
- Amnesty International, International Criminal Court: US Efforts to Obtain Impunity for Genocide, Crimes Against Humanity and War Crimes (August 2002)
- Human Rights Watch, United States Efforts to Undermine the International Criminal Court: Article 98(2) Agreements (July 9, 2002)
- Editorial, Courting Ill Will, The Los Angeles Times (November 26, 2006)
- Ari Berman, Axing the ICC, The Nation (December 20, 2004)
- Judith Kelley, Big-Stick Diplomacy Ill-Serves Our Cause, The News & Observer (Raleigh, North Carolina) (December 4, 2004)
- Chris Stephen, EU Bolsters ICC: Credibility of International Criminal Court Maintained by European Union Decision to Allow American Nationals Limited Immunity, Institute for War and Peace Reporting (IWPR): Tribunal Update, No. 285 (October 14-19, 2002)
- David J. Scheffer, Original Intent at the Global Criminal Court, The Wall Street Journal Europe (September 20, 2002)