Australia Set To Exempt US Nationals From Int'l Court

By Patrick Goodenough | July 7, 2008 | 8:12 PM EDT

Pacific Rim Bureau ( - Australia may become the latest country to sign a pact agreeing not to hand over U.S. citizens to the International Criminal Court (ICC).

Foreign Minister Alexander Downer said the government had agreed in principle to the U.S. request, but was obtaining "final legal advice" on the matter.

Although Australia's conservative government has ratified the treaty establishing the ICC, some cabinet ministers and lawmakers share Washington's concerns about the court's potential impact on national sovereignty.

The U.S., which has refused to ratify the ICC treaty, wants Australia to agree that neither country will hand over the other's citizens to the court without that government's approval.

The reciprocal agreement would also forbid the handing over by the U.S. and Australia of each other's citizens to a third country for the purposes of their transfer to the ICC.

Four other countries have so far signed so-called "article 98" bilateral agreements with the U.S.

Downer said he understood Washington's argument that the ICC could jeopardize American participation in peacekeeping missions.

While he did not agree with the U.S. decision not to ratify the treaty, he said, "I don't want this issue to mean that the United States will no longer participate in peacekeeping operations anywhere in the world. Obviously that would be a very negative development."

Some critics have accused the U.S. of trying to secure "impunity agreements" for its citizens, but Downer pointed out that the ICC statute itself gave priority to national courts to act against offenders.
\ldblquote There is not an argument about the American court system or the Americans' capacity or willingness to prosecute people who commit war crimes," he said.

The ICC, which is empowered to hear cases of genocide, war crimes and crimes against humanity, came into force on July 1, and will begin fully functioning around mid-2003.

Eighteen judges, one each from 18 member nations, will consider cases where the countries concerned are unable or unwilling to act themselves.

The Clinton administration signed up, but President Bush withdrew his support, arguing the institution could be used to bring politically motivated cases against Americans, particularly U.S. forces abroad.

After long supporting the idea, Australia's government also found itself mulling membership last June, as concerns about the ICC's impact on its sovereignty surfaced.

It eventually decided to ratify as a founding member, despite a cabinet split over the issue.

The foreign affairs spokesman for the official opposition Labor Party, Kevin Rudd, said any Australian agreement to exempt Americans would help undermine the court's effectiveness, and give dictatorships a loophole too.

"If we have an International Criminal Court, it has to be international in its nature. There can be no national exceptions because if there are national exceptions, the entire system collapses," he said.

Successes, failures

"Article 98" refers to the clause in the ICC statute, which the U.S. says allows countries to negotiate such exemption agreements. Some legal commentators have disputed that interpretation.

U.S. efforts to reach the agreements with as many countries as possible have so far been successful in the cases of Israel, Romania, Tajikistan and East Timor.

Canada and several European countries are among those that have turned down the request.

European Union foreign ministers are to meet in Copenhagen in the days ahead to discuss the issue, and in particular whether the bloc's 15 members should consider the U.S. requests individually or take a joint decision affecting them all.

Attempts to get agreement from Colombia - where U.S. military trainers are deployed as part of a joint anti-narcotics drive - have run into difficulties, with a commission of local jurists urging President Alvaro Uribe not to cooperate.

According to the State Department, U.S. diplomats are concentrating on those countries where it's most likely U.S. troops may be deployed or passing through.

"Places where U.S. [military] personnel are not likely to ever be located in the foreseeable future are not high on the list," department spokesman Richard Boucher said this week.b.

'Article 98' agreements - permitted or not?

Boucher told a press briefing in Washington on Tuesday that the bilateral agreements were totally compatible with the ICC treaty.

"They respect the right of members to participate in the treaty and the court, and they respect the right of people like the United States not to participate for what we think are very important reasons," he said.

But human rights groups and other non-governmental organizations disagree.

According to an NGO grouping called the Coalition for the International Criminal Court, the agreements being sought by the U.S. were contrary to the language and intent of article 98 of the ICC statute.

The agreements would defeat the object and purpose of the statute, and were therefore not allowed, it argued in a memo.

"It is clear that the U.S. is only concerned with preventing the ICC from fulfilling its mandate."

The coalition also expressed concern that the accumulation of "article 98" agreements may leave some countries reluctant to ratify the treaty, as they "begin to perceive the ICC as meting out justice only for some nationals and not others."

Human Rights Watch has also rejected the "article 98" agreements, saying countries had a legal obligation not to sign them. "At stake is the integrity of a vital instrument for international justice," it said in a statement earlier this month.

The announcement earlier this week that East Timor had become the third country to sign an "article 98" agreement - Tajikistan was fourth - stunned rights campaigners long involved in the tiny country's struggle for independence.

"The history of East Timor demonstrates why a single standard of justice and strong enforcement mechanisms are vital," said John Miller of the U.S.-based East Timor Action Network.

He said the ICC was designed to prosecute crimes similar to those committed in East Timor. The country became independent last May after more than two decades of repressive Indonesian rule.

"We are concerned that East Timor, which struggled so valiantly for many years to achieve independence and rule-of-law, is being asked to abandon these principles," Miller said.

Administration officials have denied reports that diplomats have threatened withdrawal of military aid if countries failed to exempt from the ICC's jurisdiction U.S. troops serving in their countries.

Secretary of State Colin Powell said earlier this month that the U.S. was "not bludgeoning or threatening any of our friends."

Nonetheless, a law aiming to protect U.S. soldiers serving abroad, passed by Congress and signed by Bush, does provide for the possibility of military aid being withheld.

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Patrick Goodenough
Patrick Goodenough
Spencer Journalism Fellow