In short, simply signing an BIA with the United States does not violate the law. Instead, the actual test for these states parties will take place when the ICC decides that U.S. BIAs exceed the scope of Article 98 and issue arrest warrants for each person covered by the immunity agreement. If the ICC so decides, these states parties will be subject to conflicting obligations and will have to decide whether to comply with their agreements with the United States or comply with the ICC`s request. In the case of Omar Bashir, the ICC concluded that once an arrest warrant has been issued by the ICC, states parties are required to comply with it, even if they believe that the arrest warrant violates Article 98, since the ICC retains final authority over the interpretation of the Statute in accordance with Article 119(1) of the Statute (read in accordance with Article 195). Article 98(2) of the Staff Regulations applies only to NAFAs and not to immunity agreements. THE VACs are by no means immunity agreements, but serve to regulate the division of competences between the host State and the sending State when personnel of the armed forces of a sending State participate in criminal acts in a host State. The NATO-SOFA agreement can be taken as an example. According to Article VII of the NATO-SOFA agreement, if a crime is committed by US forces that only violates US law, US courts would have exclusive jurisdiction. However, if it merely violates the law of the nato host member state, the host state would have exclusive jurisdiction. If the crime committed violates both U.S. military law and the law of the host country, the U.S. courts and the courts of the host state have concurrent jurisdiction.
NATO`s SOFA and other SOFA make it clear that they do not grant impunity to members of the armed forces of a sending State for crimes allegedly committed in the host State. ==References=====External links===BIAs are incompatible with Article 98(2) of the Statute because these agreements cover a broader list of persons, including current or former civil servants, employees or military or nationals of a Party, and even nationals of States Parties who currently work or have previously worked for the United States Government. In the wake of the ICC`s unprecedented decision, the legal status of U.S. bilateral immunity agreements would be of significant importance in the future and merits further investigation. Also known as Article 98 agreements, namely Article 98(2) of the Rome Statute of the ICC (“Statute”), BICs are international agreements between the United States and other states in which the latter commit to extradite a wide range of U.S. citizens to the United States instead of complying with an arrest warrant issued by the ICC. This article discusses the hostile approach of the United States. to the ICC since its inception, arguing that these controversial agreements do not limit the ICC`s power to request the surrender of persons covered by these BICs from any state party. US BIAs do not fall within the scope of Article 98(2) in two respects. First, such agreements apply to all U.S. citizens, not to government-seconded officials.
Second, these agreements do not guarantee proper investigations and prosecutions. The term “sending State” in article 98, paragraph 2, does not imply the “State of citizenship” claimed by the United States. On the contrary, the ordinary meaning of the expression “sending State” seems to indicate that the presence of the person in the territory of a host State must result from the official act of the sending State. In the case of Al Bashir, the ICC concluded that Article 98(2) of the Statute does not cover immunities, but only status-of-forces agreements (SOFA). The Guidelines issued by the Council of the European Union also suggested that U.S. BIAs should only cover persons residing in the territory of a host State and affected by the sending State. Reference is made on several occasions to the international agreements referred to in article 98, paragraph 2, of the Rome Statute, including agreements under article 98, bilateral immunity agreements (BIAs), impunity agreements and bilateral non-cancellation agreements. Since 2002, the United States has been negotiating these agreements with individual countries and has concluded at least a hundred. Countries that sign these agreements with the United States undertake not to subject Americans to the jurisdiction of the International Criminal Court. The Coalition for the International Criminal Court lists more than 100 agreements in its fact sheet on the status of U.S. bilateral immunity agreements.
One view is that Article 98(2) should only cover agreements that existed before the entry into force of the Statute and that, therefore, Article 98(2) cannot cover the confidentiality agreements of the United States, since such agreements were only formalised after the entry into force of the Statute. However, such a position does not appear to be consistent with the rules of treaty interpretation codified in the Vienna Convention, which states that the terms of the treaty must be regarded `in good faith in accordance with the ordinary meaning to be given to the provisions of the treaty in their context and in the light of its object and purpose`. The ordinary meaning of the expression `obligations under international agreements` in Article 98(2) does not mean that they are limited to existing agreements. Recourse to additional means of interpretation is not necessary, since the ordinary meaning of the contractual term does not give rise to ambiguity or absurd meaning. Furthermore, if the facilitators had intended to limit article 98 to existing agreements, the word “existing” would have been included in article 98, paragraph 2, next to the words “international agreements”. In particular, it should be noted that other articles of the Staff Regulations (i.e. Articles 90(6) and 93(3)) contain the word `present`, despite the absence of that word in Article 98(2). Researchers are often interested in the existence of an immunity agreement between the United States and another country. This Guide lists the agreements referred to in Article 98 on Thomas.gov referred to in the Treaties in force and the supplementary agreements published in the latest edition of the Acts of the Treaty. The full text of the agreements was compiled on the U.S. Department of State website on the State Department website reporting international agreements to Congress under the Case Act. They are listed below by country and all documents are in PDF format.
Article 98, paragraph 2, Cooperation in the waiver of immunity and consent to surrender: the Court may not grant a request for surrender that would require the requested State to act inconsistently with its obligations under international agreements requiring the consent of a sending State to extradite a person from that State to the Court; unless the Court may first seek the cooperation of the sending State in giving its consent to surrender. U.S. BIAs are more like impunity agreements. These agreements do not impose a legal obligation on the United States to investigate and, where there is sufficient evidence, to prosecute those accused of committing crimes within the ICC`s jurisdiction. In these agreements, the United States expresses its intention to investigate those accused of committing international crimes “if necessary.” The Parliamentary Assembly of the Council of Europe has also recommended the inclusion of appropriate provisions in US ordinary law agreements so that those who have committed crimes within the jurisdiction of the ICC do not enjoy impunity. . 3. Would signing the BIA with the United States violate States parties` obligations under the Rome Statute? The International Criminal Court (ICC) was established on July 17, 1998, when 120 countries adopted the Rome Statute, the treaty establishing the ICC. The Rome Statute entered into force on 1 July 2002. The Rome Statute contains article 98, which states: (a).
The people covered by U.S. BIAs are wider than THEACs. The 5. In March 2020, despite strong opposition from the United States of America (`the United States`), the Appeals Chamber of the International Criminal Court (“ICC”) authorized the Prosecutor to open an investigation into alleged war crimes and crimes against humanity committed on Afghan territory by the Taliban, Afghan government forces and US troops. The United States has already revoked the prosecutor`s visa and reacted to the decision as a “staggering action by an irresponsible political institution.” Amnesty International and Human Rights Watch have urged states parties not to enter into partnership agreements with the United States. . . .