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

294 Chapter 13
either reciprocal or non-reciprocal, is to effectively remove USA citizens
and military personnel from the jurisdiction of the ICC. The agreements
prohibit the surrender to the ICC of a broad scope of persons including
current or former government officials, military personnel and US
employees including contractors and nationals. Notably, these bilateral
immunity agreements do not include an obligation to subject the persons
concerned to investigation and prosecution should a state surrender them
to the USA and not the ICC. Malawi, it must be stated, entered into a
bilateral agreement with the USA in September 2003. 85
The precise effect of the bilateral immunity agreements remains hotly
contested. From the American perspective, the agreements are framed
within the principle of complementarity on which the ICC is founded. The
underlying assumption seems to be that the USA would want to retain
primary jurisdiction over all its citizens with respect to crimes under the
Statute irrespective of where the offences were committed. The other
perspective, however, argues that the bilateral immunity agreements are
contrary to international law and the Rome Statute itself. 86 It remains to
be seen how Malawi will marry its obligations under the Rome Statute
with those that it has undertaken under the bilateral immunity agreement.
Again, the direction that the country will take on the matter will best be
manifested in the provisions of legislation that domesticates the Rome
Statute.
Importantly, however, the fact that a country has entered into a
bilateral immunity agreement with the USA does not mean that such a
country cannot adopt domesticating legislation. It then becomes a matter
for the domesticating state to balance the obligations that it has under the
two instruments in a manner that does not defeat the purpose of either
instrument. Therein lies the potential conflict between the bilateral
immunity agreements and the Rome Statute. The only emerging solace at
present seems to be that the position of the USA on the Rome Statute may
be changing and the protection of USA citizens under the bilateral
immunity agreements may, in future, be limited to acts done by USA
citizens in their official capacities.
85
http://www.ll.georgetown.edu/guides/documents/Malawi03-131.pdf (accessed 22
86
March 2010). The agreement between Malawi and the USA is rather in the form of an
executive agreement, it may nevertheless fall under the definition of a treaty under art 2
of the Vienna Convention on the Law of Treaties.
From this perspective it is generally argued that the bilateral immunity agreements
seriously threaten the existence and effectiveness of the court – DDN Nsereko
‘Triggering the jurisdiction of the International Criminal Court’ (2004) 4 African Human
Rights Law Journal 256 262.