Criminal Law

AuthorInternational Law Group

The United States is asking various nations which have ratified the Statute of the International Criminal Court (ICC) to enter into bilateral agreements to refrain from handing over American citizens to the ICC for prosecution without U.S. consent. The U.S. has expressed two concerns: (1) that various nations might, for political purposes only, ask the ICC to prosecute U. S. peacekeepers for war crimes or crimes against humanity and (2) that the ICC prosecutors will not be accountable to any international organization or to U.S. laws or officials for the exercise of their discretion to file, or not to file, charges.

ICC Article 98 (2) authorizes bilateral arrangements of this type. It provides: "The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender."

According to the U.S., many of its allies have privately suggested the use of Article 98 agreements to meet the above U.S. worries. So far Romania and Israel have signed agreements with the U.S. On the other hand, Canada, Norway, Switzerland and Yugoslavia reportedly have declined to do so.

Philip Reeker, a U.S. State Department spokesman, cited the recently enacted American Servicemembers Protection Act (ASPA) [Pub. Law 107-206, 22 U.S.C.A. Sections 7421-7433 (Aug. 2, 2002)] as authorizing the President to stop providing military aid to countries that decline to enter into Article 98 arrangements.

"Military assistance" programs that could be cut off include (1) international military education programs that bring foreign officers and students here for professional military training and (2) finance deals to aid nations in buying American weapons and services. These restrictions do not apply to assistance to NATO member countries or major non-NATO allies or others. The Act also...

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