An Introduction To The International Criminal Court - Institute for ...

22 introduction to the international criminal court
This was only a precursor for more aggressive challenges to the Court.
Most of this took the form of measures aimed at protecting what were
euphemistically referred to as ‘US peacekeepers’. 69 The United States pressured
a number of States to reach bilateral agreements whose purpose was
to shelter American nationals from the Court. These were made pursuant to
Article 98(2) of the Statute, which prevents the Court from proceeding with
a request to surrender an accused if this would require the requested State
to breach an international agreement that it has made with another State.
The provision was actually intended to recognise what are known as ‘host
State agreements’ and ‘status of forces agreements’. Such instruments give
a kind of immunity to foreign military forces based in another State, or to
various international and non-governmental organisations. The new agreements
that the United States was pushing went much further, because they
applied to all of its citizens within the State in question. Perhaps these were
consistent with a technical reading of Article 98(2), although they were not
at all what was meant when the provision was adopted. American diplomats
succeeded in bullying a number of States – many of them not even Parties
to the Statute – into signing these agreements. 70 However, those States
with the most significant numbers of American residents, such as Canada,
Mexico and those of western Europe, for whom there might be some real
significance to the possibility of enforcement of surrender orders issued by
the Court, have refused to entertain what they have understood as a more
or less indirect attack on the Court. On 25 September 2002, the European
Parliament opposed the bilateral immunity agreements being proposed by
the United States, saying that they were inconsistent with the Rome Statute.
Worse was yet to come, however. Within a few days of the Statute’s entry
into force, the United States announced that it would veto all future Security
Council resolutions concerning peacekeeping and collective security operations
until the Council adopted a resolution that would, in effect, exclude
members of such operations from the jurisdiction of the Court. 71 As early
as May 2002, it had threatened to withdraw peacekeeping troops from East
69 See Sean D. Murphy, ‘Efforts to Obtain Immunity from ICC for US Peacekeepers’, (2002) 96
American Journal of International Law 725.
70 As of 1 April 2003, agreements had been made with Afghanistan, the Dominican Republic, the
Gambia, Honduras, India, Israel, Kuwait, the Marshall Islands, Mauritania, Micronesia, Nepal,
Palau, Romania, Sierra Leone, Tajikistan, Timor Leste and Uzbekistan.
71 UN Doc. S/RES/1422 (2002). See Mohamed El Zeidy, ‘The United States Dropped the Atomic
Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution 1422’,
(2002) 35 Vanderbilt Journal of Transnational Law 1503.