A New Translatlantic Crisis

John de Boer (Research Associate, GLOCOM)

A new transatlantic crisis has unfolded and could potentially erupt today (12 June) at the United Nations Security Council. Accusations of the US bullying weaker and poor nations are flying and the ‘coalition of the willing' seems to be at work once again. In Europe, Britain, Spain and Italy are taking a more conciliatory approach towards US demands and France and Germany have adopted a hard-line. The set up sounds very much like Iraq, however, this time Saddam Hussein is out of the picture. In his stead, it's the integrity of international law and more specifically the International Criminal Court (ICC) that is at stake.

An open debate is scheduled at the United Nations tomorrow concerning resolution 1422. After having renounced its signature of the Rome Statute (the legal framework that underpins the ICC) in May 2002, the Bush administration worked quickly to pass UN Security Council resolution 1422, which exempted all of its personnel serving on UN missions from trial and arrest. The resolution went into force on 1 July 2002 and is due to expire on 1 July 2003. The debate will focus on whether or not a US draft resolution seeking to extend 1422's mandate should be accepted, but its implications go beyond the UN.

Human rights activists, politicians and regular citizens interested in seeing people who are responsible for crimes against humanity, genocide and war crimes face justice, worry that the US is sabotaging the only universal legal instrument capable of trying these most heinous crimes known to mankind by creating a two-tiered legal system: one for the US and one for the rest.

Since 2002, the US has been on a global mission to arrange what are referred to as "bilateral impunity agreements" (otherwise known as Article 98 agreements) that will exempt all US citizens, whether they are soldiers, politicians or civilians, from ICC jurisdiction. According to John Bolton, the US Undersecretary for Arms Control and International Security, the US's "ultimate goal is to conclude Article 98 agreements with every country in the world, regardless of whether they have signed or ratified the ICC, regardless of whether they intend to in the future".

The problem with these bilateral agreements is that they conflict with the Rome Statute. Article 27 of the Statute states that, "no one is immune from the crimes under its jurisdiction". They also contravene article 18 of the Vienna Convention on the Law of Treaties, which obliges states to refrain from acts that would defeat the objective and purpose of the Statute. The overall purpose of the ICC is clear, "to ensure that genocide, crimes against humanity and/or war crimes be addressed either at the national level or by an international judicial body". Bilateral impunity agreements not only seek immunity for a wide-class of people (even potentially non-US citizens) but provide no guarantee that the crimes mentioned above will be addressed at the national level, thereby, possibly ensuring impunity.

These bilateral agreements are what lie at the core of the emerging transatlantic rift. The EU has been one of the strongest advocates behind the creation of a strong and viable ICC. Not only did member states work hard to draft the Statute but they sent legal experts around the world, including Japan (9-11 December 2002), to hold consultations with governments, academics and the general public with the objective of increasing international awareness and commitment to work against impunity. To date a total of 137 countries have signed the Rome Statute with 90, including all 15 EU member states, having ratified it. The Statute came into force on July 1 2002, the court was inaugurated in March 2003 and is scheduled to try its first case in a matter of months.

However, over the past year the US has been engaging in what EU diplomats have called "bullying tactics" to convince countries, including EU candidates, to sign a bilateral agreement. According to press and NGO produced reports the US has managed to sign these agreements with 37 countries, including Romania which is expected to join the EU in 2007. Negotiations are also reportedly ongoing with Slovenia, which will join in 2004. Other European countries currently being approached by the US include Croatia, Macedonia, Bosnia, Serbia and Montenegro. Press reports indicate that these war torn and needy countries are being threatened with the withdrawal of US aid if they don't sign the agreement. Human Rights Watch claims that the US ambassador to Croatia stated that this country would lose $19 million in military assistance and issued a veiled threat to prevent Croatia's accession to NATO if it refused to sign the agreement. This comes as no surprise considering that President Bush signed the American Servicemembers' Protection Act last August, which authorized the withdrawal of US military assistance from certain non-NATO allies supporting the ICC.

The point is that, the most vulnerable European countries are being threatened by the US to sign a treaty that goes against the very spirit and viability of an International Criminal Court that the EU has worked tirelessly to create. Furthermore, Europeans concerned about human rights are particularly appalled that the US is pressuring countries which have seen hundreds of thousands of their fellow citizens raped and murdered under a policy of genocide led by people such as Slobodan Milosevic (incidentally, the US has also signed an agreement with Rwanda).

Peter Schieder, the President of the Assembly of the Council of Europe, has come out publicly to state that, "we [the EU] cannot allow this to happen in a region where the wounds of war have not yet healed, economies are in tatters and ethnic tensions are still running high". He insists that the EU must be "ready, willing and able to take the role of the US in case its military assistance is withdrawn". The urgency in his words reflects a determination to rid the region of a culture of impunity.

The EU is not alone in its opposition to the US. Canada led a group of countries last year, which publicly condemned the US for seeking exemption when it comes to crimes against humanity, genocide and war crimes. However, there are countries such as Japan that have yet to sign the Rome Statute. Nevertheless, the main source of tension continues to cut across the Atlantic. The outcome of which will no doubt not only affect EU-US relations but all mankind.

* The countries that have signed bilateral agreements with the US as of 10 June 2003 are: Romania, Israel, East Timor, the Marshall Islands, Tajikistan, the Dominican Republic, Pulau, Mauritania, Uzbekistan, Honduras, Afghanistan, Micronesia, Gambia, El Salvador, Sri Lanka, India, Nepal, Djibouti, Bahrain, Tuvalu, Georgia, Azerbaijan, Nauru, the Democratic Republic of Congo, Tonga, Sierra Leone, Rwanda, Thailand and Bolivia.