Prosecuting International Crimes in Africa - PULP - University of ...

158 Chapter 6
(b) US legislation to prevent a Hague invasion
The systematic adoption by the US of domestic legislation precluding
cooperation with the ICC is another illustration of American
exceptionalism in the US-ICC relationship. These pieces of legislation
include the American Service Members Protection Act (2002), also known
as the ‘Hague Invasion Act’ that provides for a mechanism of penalising
any country that hands over a US national to the ICC, including the use of
military force. 42 Despite the complete absurdity of this position clearly
meant to undermine the universality of international criminal law and
frustrate the work of the ICC, the Court has not publicly expressed a
position condemning it. This loud silence may be interpreted as
acquiescence and is deafening to Africa. Predictably, this state of affairs
bolsters the AU’s sentiments that the ICC is being used as a whip by former
colonial masters to discipline weaker and poorer developing countries in
impoverished continents such as Africa. Moreover, during the Bush
Administration, the US used its powerful position in the global community
to negotiate article 98 agreements with developing countries wherein
promises were made not to hand over American nationals to the ICC
without the US consent. As would be expected, a failure or refusal to enter
into such agreements would have dire consequences, including the loss of
financial, military and humanitarian aid. In fact, human rights activists
coined the term ’bilateral impunity agreements’ for these agreements. 43
3. 3 Note on UN Security Council composition
The composition of the UN Security Council, the body meant to be the
decider of what is in the interest of justice and peace, according to the
Court Prosecutor comprises the US, China and Russia, neither of which is
a party to the Rome Statute. This body was at the centre of the process that
referred Sudan to the ICC. Of relevance here are the remarks already
mentioned above of ICC Prosecutor who considers the Security Council to
be the ultimate custodian of the political implications of any case that he
may intend to prosecute through their powers as conferred in the Statute.
These now seemingly imprudent remarks buffer the AU’s view that the
ICC is but a neo-colonial stooge, given the immense criticism the Security
Council’s has faced regarding its impartiality. 44 In the midst of these
criticisms and in a bid to curb the impartiality of the Council, the AU has
42 ‘US Congress Passes Anti-ICC Hague Invasion Act’ Coalition for the International
Criminal Court, Press Release, 26 July 2002 http://www.iccnow.org/documents/
07.26.02ASPAthruCongress.pdf (accessed 15 May 2009).
43 Coalition for the International Criminal Court ‘USA and the ICC: Bilateral Immunity
Agreements’ http://www.iccnow.org/?mod=bia (accessed 15 May 2009) and Human
Rights Watch ‘Briefing Paper on Bilateral Immunity Agreements’ New York, 20 June
2003.
44 S Odero ‘A Liberal-realist conception of international relations: A pragmatic approach
to understanding the United Nations’ www.scribd.com/.../Steve-Odero-Ouma-PhD-
International-Relations-Theory (accessed 9 April 2010).