"The European Union knew that the stakes were high for the credibility of the International Criminal Court and for the European Union's Common Foreign and Security Policy as a whole," said Lotte Leicht, Europe director for Human Rights Watch. "Yet the European Union failed to adopt a firm, unequivocal position in response to Washington's campaign to undermine the court."
At a Monday meeting of European Union foreign ministers, a set of vague benchmarks guiding bilateral agreements that any EU Member State signs with the U.S. government was adopted. The GAC claims the principles will "preserve the integrity of the Rome Statute of the International Criminal Court." Human Rights Watch said that, to the contrary, the GAC "guiding principles" adopted today do not ensure respect for the obligations of States Parties under the Statute.
"The European Union asked the rest of the world to wait while they set 'high threshold benchmarks,'" said Leicht. "But as adopted, these so-called benchmarks are so vague that they make a mockery of the European Union's common position on the ICC. In the process, the European Union has now also violated its own legally binding common position."
Since May the Bush administration has demanded that states sign bilateral agreements to immunize all U.S. citizens from investigation and prosecution by the ICC. In recent consultations with the European Union, the United States demanded total immunity for all American citizens and U.S.-connected personnel. Some governments have publicly stated their intention not to enter such agreements, which they believe contradict the purpose of the ICC. The ICC Treaty requires every State Party to surrender individuals sought by the court and expressly excludes any reservations.
"Now we expect national parliaments in EU countries to carefully scrutinize any agreement their respective governments may negotiate with the United States," Leicht said.
The European Union's adopted "guiding principles" fail to acknowledge the ICC's oversight role where national systems are unwilling to investigate or prosecute. Additionally, while containing a reference to "No Impunity," there is no provision elaborating a legally binding commitment by the United States to hold citizens sought by the ICC to account under U.S. law.
"Without an express guarantee of ICC oversight of national prosecutions, agreements with the United States would permit impunity," said Leicht. "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."
The principles cite the existence of "state and diplomatic immunity under international law," which could temporarily insulate sitting officials from prosecution where they are protected by such diplomatic immunity. At the same time, tracking the treaty's Article 98(2), the GAC principles limit the scope of persons who could be exempted to those actually "sent" to the territory of the ICC State Party by the United States. This would include only personnel sent to an ICC State Party. The principles contain a "sunset clause" that must be read to limit the duration of any agreement signed. The GAC principles also address ratification of any agreements signed and provide an important role for national parliaments to oversee negotiations.
The U.S. government is thoroughly opposed to the ICC. In May it announced an unprecedented diplomatic step - withdrawal of signature. In June and July U.S. officials battled for a Security Council Resolution to exempt any individuals participating in a U.N. peacekeeping operation from the authority of the court.
"Weak bilateral agreements with Washington could open the door to impunity for those accused of war crimes, crimes against humanity and genocide," Leicht said. "We look to every EU Member State to respect their obligations to the court and reject the contracts the American side is pressing."
To read an op-ed on ICC by Kenneth Roth, executive director of Human Rights Watch, on today's International Herald Tribune, please see: http://www.iht.com/articles/72208.htm.