International Criminal Court: EU foreign ministers agree to bilateral agreements with the United States, October 2002

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Series Details 1.10.02
Publication Date 01/10/2002
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Foreign ministers from across the European Union agreed on 30 September 2002 that its Member States may negotiate bilateral agreements with the United States over immunity for Amercian official and soldiers from the new International Criminal Court.

Opened in The Hague on 1 July 2002, the International Criminal Court is the first court with worldwide jurisdiction to punish those who commit crimes against humanity and war crimes. It differs from the International Criminal Court of Justice because it can prosecute individuals rather than states and it may intervene when national authorities cannot or will not prosecute individuals responsible for the worst crimes - genocide, crimes against humanity and war crimes - committed anywhere in the world.

However, the powers of the Court have been questioned becuase it does not have the support of the United States who withdrew its signature from the ICC treaty in May 2002 becuase it feared that American peacekeepers serving abroad could be at risk of being prosecuted by hostile states. Instead of supporting the ICC, the US government is seeking permanent immunity from prosecution by signing bilateral agreements with ICC signatory countries and warning that it will cut US military aid to countries who refuse to sign the immunity agreement under the new US antiterrorism law.

Up until the meeting of foreign ministers, the European Union had not agreed on a common approach to signing bilateral agreements with the United States concerning the ICC. This led to controversy when Romania - an EU applicant - became the first country to conclude a bilateral agreeement over immunity from the ICC with the US on 1 August 2002. Speaking about Romania's decision, European Commission spokesman Michael Curtis told a news conference:

'We deplore that a candidate country to the EU has not waited for the European Union to establish its final position, which I believe will be taken in early September. We remain in contact with the Romanians on this issue ...to gain clarification on why they took this step, but also to make clear our regret that this has actually taken place'

In order to prevent any such problems in the future, foreign ministers agreed on 30 September that EU members may conclude bilateral agreements with the US but must follow a set of comon guidelines when considering the necessity and scope of possible agreements or arrangements in responding to the United States' proposal. The conditions are as follows:

  • they will apply only to American officials or soldiers sent abroad;
  • the US must agree to prosecute Americans accused of war crimes and crimes against humanity in US courts;
  • there will be no reciprocity, so that EU citizens are not granted immunity in return.

Diplomats have suggested that the EU agreement may not satisfy President Bush, who had sought immunity for all Americans, since the EU's guidelines would not cover mercenaries or retired officials. However, human rights organisations have already criticised the EU for not adopting a tougher stance, fearing that such bilateral agreements could further weaken a Court already lacking US support. Human Rights Watch called the guidelines 'vague benchmarks' and expressed their deep dissatisfaction at the EU's action, saying:

'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, yet the European Union failed to adopt a firm, unequivocal position in response to Washington's campaign to undermine the court. The European Union asked the rest of the world to wait while they set 'high threshold benchmarks, 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'.

Human Rights Watch is now expected to join forces with other human rights organisations such as Amnesty International, who also criticsed the Council's decision, to levy pressure on the Member States' national parliaments not to sign any bilateral agreements with the US concerning immunity from the International Criminal Court.

Links:

Council of the European Union:

Danish Presidency of the European Union:

Rome Statute of the International Criminal Court:

The Coalition of the International Criminal Court:

Human Rights Watch:

The European Policy Centre:

BBC News Online:

European Sources Online: Financial Times:

  • 01.10.02: EU ministers back off over criminal court
  • 30.09.02: Europe 'fudge' predicted on criminal court controversy

European Sources Online: Financial Times:

  • 29.08.02: EU tries to avoid court conflict with US
  • 28.08.02: Bilateral pacts with US a violation, says EU

European Sources Online: In Focus:

  • International Criminal Court opens in The Hague, July 2002

Helen Bower
Compiled: Tuesday, 1 October 2002

Foreign ministers from across the European Union agreed on 30 September 2002 that its Member States may negotiate bilateral agreements with the United States over immunity for American official and soldiers from the new International Criminal Court.
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