I. Legal Analysis
Article 98(2), which provides that the ICC may not proceed with a request for surrender that would require the requested state to act inconsistently with its obligations under international agreements, 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 agreements that secure exemption for its citizens or otherwise undermine the effective functioning of the Court.
Any State That Has Ratified the Rome Statute May Not Lawfully Sign an Agreement Providing Immunity from ICC Prosecution with a State that Has Repudiated or Has Not Signed the Rome Statute; To Do So Would Violate the Rome Statute.
The Rome Statute grants the Court jurisdiction over the crimes of genocide, war crimes and crimes against humanity if they occur in the territory of a state party or were committed by its nationals (See article 12). While the Statute allows a state party to conduct its own investigation and prosecution, the Court still retains the authority to investigate or prosecute if a state is unwilling to do so. This authority acts as a guarantee against impunity and is fundamental.
Article 98(2) cannot be read to permit a non-state party (and particularly, one that has repudiated the Rome Statute) to benefit by removing its nationals from the ICC's jurisdiction. This would undercut the jurisdictional regime established in the Rome Statute.
In the instances covered by an impunity agreement, the ICC would be unable to prosecute individuals over which it should have jurisdiction. By turning over a person under an impunity agreement, a state party would be preventing the Court from stepping in and exercising jurisdiction if the government requesting the person proves unwilling to conduct an appropriate investigation or prosecution. By definition, any state that has repudiated the Rome Statute is unwilling to subject its investigations and prosecutions to ICC scrutiny. By granting a repudiating state exclusive jurisdiction over the ICC crimes, states would be opening the door to impunity. Therefore, the so-called "Article 98" agreements effectively alter the jurisdictional regime as established under the Rome Statute. For this reason, entering into an impunity agreement would violate a state party's obligations under the Rome Statute; the agreement itself would not be legally valid under Article 98.
So that Articles 98(2) and 12 may be read consistently, Article 98(2) must be construed as a routing mechanism. Only state parties can benefit from an agreement that allows them first chance at prosecuting their own nationals for ICC crimes committed on the territory of another state. While Human Rights Watch does not favor such agreements, such a jurisdiction-routing mechanism is consistent with the overall goals of the Rome Statute to ensure that crimes covered by the ICC Statute are prosecuted by national courts subject to ICC scrutiny or by the ICC itself. Such agreements would still respect this guarantee against impunity, which is fundamental to the Rome Statute.
Any State That Has Signed But Not Yet Ratified the Rome Statute May Not Lawfully Sign an Agreement Providing Immunity from ICC Prosecution with a State that Has Repudiated or Has Not Signed the Rome Statute; To Do So Would Violate the "Object and Purpose" of the Rome Statute.
Any state that has signed the Rome Statute is, according to Article 18 of the Vienna Convention on the Law of Treaties, "obliged to refrain from acts which would defeat the object and purpose" of the Rome Statute.
The "purpose" of the Rome Statute, as made clear in the Preamble and Articles 12 and 27, is to establish a system of individual accountability for the most serious international crimes. As mentioned above, the treaty is also predicated on ICC review of national prosecutions to remove the possibility of impunity.
States that have repudiated the Rome Statute have rejected the complementary role of the ICC; they have not agreed to the ICC's authority to assess national prosecutions and step in where appropriate and, in effect, they have not taken steps to eradicate impunity.
Signatory states cannot lawfully confer exclusive jurisdiction over ICC crimes to repudiating or non-signatory states. Entering into impunity agreements would violate the signatory states' obligations under the Vienna Convention to refrain from acts that would defeat the object and purpose of the Rome Statute.
II. Policy Assessment
Facilitating widespread immunity for U.S. nationals through negotiated bilateral agreements with the United States would provide a dangerous precedent. By signing an impunity agreement with the United States, states parties and signatory states would be endorsing a two-tier rule of law: one that applies to U.S. nationals; another that applies to the rest of the world's citizens. This would significantly weaken international law and states should resist the Bush administration's ideologically driven attack on the ICC.
If the United States is successful in obtaining impunity agreements from many states, it may encourage other nations, particularly those opposed to the ICC, to pursue similar immunity for their own citizens. This would fundamentally undermine the Court.
It is also important for states parties and signatory states to recall that Article 98(2) was essentially inserted into the Rome Statute at the behest of the United States. States agreed to its insertion in order to retain U.S. involvement in the ICC project. Given that the U.S. has now officially repudiated the ICC, Washington has eliminated the underlying rationale for a bilateral 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.
These policy concerns complement the legal arguments and provide states with additional reasons to reject impunity agreements with the United States.
U.S. efforts to exploit Article 98(2) of the Rome Statute by entering into impunity agreements with states parties and signatory states must be opposed to ensure that the ICC is respected. At stake is the integrity of a vital instrument for international justice.