Your Excellency,

We are writing in light of a new U.S. attack on the International Criminal Court (ICC), the third in the last few months. We believe the Bush Administration's intensifying opposition to the ICC is indefensible. We are writing to share our assessment of U.S. intentions regarding the Court and to make several recommendations for how to counter them.

However, the U.S. government is determined to continue obstructing the Court. Having failed during the recent U.N. Security Council session to secure an iron-clad exemption from the Court's jurisdiction for U.S. personnel, the Bush Administration has signaled its intention to request states around the world to approve bilateral agreements ("Article 98 agreements") requiring them to send any American national sought by the Court to the United States instead of surrendering him or her to the ICC. We understand that in recent weeks a number of governments have been approached by the U.S. government regarding such agreements.

For the legal and policy reasons explained below, Human Rights Watch urges your government to:

(1) Reject any proposed Article 98 agreement with the United States because it is inconsistent with your government's legal obligations under the Rome Statute not to undermine the objectives of that treaty.
(2) Engage regional partners with the aim of formulating a multilateral, coordinated response for states facing U.S. demands to enter into Article 98 agreements.
(3) At a minimum, defer any substantive negotiations on an Article 98 agreement for several months to analyze fully its legal implications.
(4) Articulate the importance your government attaches to the ICC at the upcoming General Debate at the United Nations Fifty-Seventh General Assembly.

Article 98 Agreements

Human Rights Watch believes ICC States Parties and signatory states have a legal obligation that prevents them from entering into Article 98 agreements with non-State Parties, particularly the United States, the only country to have officially repudiated the Rome Statute.

Article 98 was included in the Rome Statute to provide an orderly and rational process for the handling of suspects among states cooperating with the Court. It was not intended to allow a state that has refused to cooperate with the Court to negotiate a web of agreements to secure exemption for its citizens or otherwise undermine the effective functioning of the Court. Signing such an agreement with the United States, given its current policy of non-cooperation with the Court, would contravene the obligations that governments undertook upon signing or ratifying the Rome Statute.

In this context it is important to recall Article 98's negotiating history. The provision was inserted into the Rome Statute on the insistence of the United States at the Rome Diplomatic Conference. U.S. negotiators argued that Article 98 would increase Washington's "comfort level" with the Court and keep the U.S. engaged in the ICC process. States agreed to include Article 98 on this basis. Given the Rome Statute's preference for good-faith national investigations and prosecutions, this rule made some sense: governments could have "first crack" at any of their nationals who were suspects, on the understanding that the suspect would be surrendered to the ICC if the Court found that national proceedings were not conducted in good faith. However, in light of the U.S. government's repudiation of the Court, Washington has eliminated the underlying rationale for any Article 98 agreement with the United States, since the Bush Administration would refuse to surrender an American suspect to the ICC even if the Court found the U.S. investigation or prosecution to have been a complete sham. Thus, your government would be justified in refusing to enter into such agreements with the United States.

To elaborate our legal views:

(1) Article 98 must be construed narrowly and consistently with the jurisdictional regime in the Rome Statute, which is based on the nationality of the accused or the state where the crimes occurred.
(2) Article 98 does not override the requirement that national prosecutions for Rome Statute crimes be subject to ICC scrutiny to determine whether investigations and prosecutions are conducted in good faith.
(3) States Parties and signatories of the Rome Statute are legally required to ensure that these basic and important aspects of the Rome Statute are not violated: States Parties by virtue of their legal obligations in the Rome Statute to cooperate with the ICC; signatories of the Rome Statute by virtue of their legal obligations under the Vienna Convention on the Law of Treaties to "refrain from acts which would defeat the object and purpose" of the Rome Statute.
(4) Article 98 permits a State Party to enter into jurisdictional-routing agreements with another State Party that allow it first chance at investigating and prosecuting. Such agreements are technically consistent with the complementarity principle in the Rome Statute, although Human Rights Watch discourages States Parties from entering into them with other State Parties.
(5) Article 98 does not permit a non-State Party (and particularly one that has repudiated the Rome Statute) to effectively provide immunity from the ICC's jurisdiction and to obstruct the efforts of the ICC either to prosecute the most serious international crimes or to ensure that good faith national prosecutions occur.
(6) States Parties and signatories of the Rome Statute should not sign an agreement providing immunity from ICC prosecution with a country that has repudiated or has not signed the Rome Statute - to do so would undermine the "object and purpose" of the treaty.
(7) Agreements ("Article 98" agreements or Status-of-Forces Agreements) that purport to require States Parties and signatories of the Rome Statute to turn over military personnel suspected of committing crimes within the ICC's jurisdiction to a country that has repudiated or has not signed the Rome Statute are thus not valid.

Beyond the legal arguments, Human Rights Watch urges your government to reject Article 98 agreements for important policy reasons. The effective widespread exemption of a certain class of persons - U.S. nationals - from the jurisdiction of the Court would cause a serious breach in the regime of international criminal responsibility envisioned by the Rome Statute. The exemption could also serve as a dangerous precedent to encourage other states to seek similar immunity for their citizens. This would undermine the effectiveness and credibility of the Court.

If your government is unable to promptly reject a U.S. request for an Article 98 agreement, we urge you to defer the matter for at least several months to allow time to consider your government's obligations under the Rome Statute. The European Union has adopted this approach, recognizing the complex legal and policy issues involved. In reality, the Court will not be able to request the surrender of anyone for at least a year, so it is unreasonable to demand that your government be rushed into negotiations.

The American Servicemembers' Protection Act

U.S. diplomats approaching your government about an Article 98 agreement may refer to U.S. legislation known as the American Servicemembers' Protection Act of 2002 (ASPA), which became law on August 2, 2002. Human Rights Watch has criticized the APSA as an effort to intimidate countries that support the Court. However, it is important to understand the law signed by President Bush contains waivers that could nullify or at least minimize its punitive provisions.

For example, Section 2007 of the ASPA prohibits U.S. military assistance to countries that join the Court - but does not apply to NATO members and such non-NATO countries as Australia, Egypt, Israel, Japan, Jordan, Argentina, Republic of Korea, and New Zealand. Even for other governments, section 2007 allows the U.S. president to waive the prohibition if either: 1) the state signs an Article 98 agreement or 2) the president decides that a wavier is in the U.S. national interest. It is essential to understand the alternative basis for waiver: ASPA does not require a state to sign an Article 98 agreement for its military assistance to continue. When the administration determines that U.S. national interests are at stake, ASPA allows a waiver of the military assistance sanction even if there is no Article 98 agreement. The U.S. government does not ordinarily extend military assistance when its national interest is not served.

For these reasons, Human Rights Watch urges your government to resist Washington's use of the ASPA as leverage in negotiations for an Article 98 agreement.

A Multilateral Response; the General Debate at the United Nations General Assembly

Human Rights Watch recognizes that the United States is capable of exerting considerable pressure on individual governments to sign bilateral accords. We urge your government to work with regional or sub-regional partners to explore a coordinated approach for rejection of U.S. efforts to undermine the ICC. We are pleased that the European Union, for its part, has indicated that it will provide a unified response on this issue.

For similar reasons, Human Rights Watch urges you to include a strong reference to the ICC in your intervention at the forthcoming General Debate at the United Nations Fifty-Seventh General Assembly. In the last two years, the General Debate has provided a valuable forum for states to highlight the importance they attach to the ICC. This is the first General Assembly General Debate since the entry into force of the Rome Statute on July 1, 2002. It is also the first session since the Bush Administration's unprecedented "unsigning" of the Rome Statute and its attacks on the Court in the U.N. Security Council and elsewhere. For these reasons, we believe the General Debate presents an especially appropriate moment to celebrate the Court's coming into being. Strong statements of support will track the many positive interventions made during the extraordinary plenary session of the ICC Preparatory Commission on July 3 as well as the statements made at the open meeting of the U.N. Security Council on July 10. We urge you to include a strongly worded statement of support at the forthcoming General Assembly to help underscore the breadth and depth of support for the ICC.

Human Rights Watch appreciates your government's contributions to the establishment of the International Criminal Court. We are confident that your government, in concert with other like-minded states, will develop the appropriate approach, grounded in principle and honed by effective tactics, to support the Court in this crucial period.

Sincerely,