- The Washington Times - Wednesday, October 8, 2003

NEW YORK — The Bush administration has negotiated agreements protecting Americans from prosecution by the International Criminal Court with more than five dozen nations, knitting together a partial shield to protect U.S. citizens from politically motivated prosecutions.

As of this week, 68 governments have signed treaties with the United States promising not to surrender American soldiers, lawmakers or civilians to the court’s jurisdiction. About half of these countries are parties to the ICC.

The so-called Article 98 agreements have outraged legal analysts who support the ICC. The pacts also have created rifts in the European Union; some governments in the bloc would like to sign them but cannot because of a negotiated common position in support of the court.

So sensitive is the issue in some countries that more than a dozen governments, including those of Egypt, Nigeria and Pakistan, have signed agreements but declined to announce that to their publics.

Other countries that signed such pacts in confidence include Kuwait, Morocco and Bangladesh, U.S. officials told The Washington Times.

The officials say the bilateral agreements are not an ironclad protection for U.S. citizens but are the best the Bush administration can do right now.

“It covers us in a lot of regions in the world,” said John Bolton, undersecretary of state for arms control and international security. “There may be other protections we need to seek — no one says the Article 98 agreements are all we need. But for now, that’s what we’re pursuing.”

The two-page agreements — named after Article 98 of the ICC treaty that provides for such exemptions — essentially say that the other government will not turn over to the international court any American soldier, official, businessman, journalist, aid worker or other person accused of a war crime.

Some nations have sought, and received, a reciprocal assurance. But other nations that have signed on to the court statute feel they cannot request amnesty for their own citizens.

U.S. officials have negotiated immunity deals with roughly one-third of the members of the United Nations, including with nations where U.S. soldiers are deployed, such as Afghanistan, the Philippines and Bosnia-Herzegovina.

The State Department announced yesterday that Liberia, which was host to U.S. forces earlier this year, has become the latest country to sign an Article 98 agreement with Washington.

Critics say that small nations and recipients of U.S. military aid figure disproportionately on the list. Few agreements have been negotiated with Western European capitals or strategic powers.

“I’d feel better if I saw France and Russia on that list instead of, uh, Tuvalu,” said one congressional staffer. “Is this significant protection for our soldiers? I don’t know.”

The agreements were reached during two years of intense but low-key military and diplomatic negotiations in which U.S. officials wielded a variety of carrots and sticks. A half-dozen of the agreements were signed last month, and administration officials said a half-dozen more will be inked shortly.

A pro-ICC umbrella organization said recently that more than $80 million in U.S. foreign aid and military assistance was jeopardized by the refusal of certain governments to shield Americans from the court’s reach.

The United States was an early supporter of the ICC, which was conceived as a permanent tribunal to prosecute crimes against humanity, genocide and other atrocities of war.

But as the court took shape, negotiators gave it “universal jurisdiction,” meaning that it has the right to try citizens of nations that have chosen not to recognize the court’s jurisdiction.

Last year, Congress passed the American Servicemembers Protection Act, which forbids U.S. cooperation with the tribunal and appears to authorize the use of force to rescue U.S. citizens in the dock.

That law also cuts off military assistance to non-NATO allies unless they agree not to transfer American citizens to The Hague-based court.

Despite significant pressure from the United States, 92 nations have ratified the treaty creating the ICC, called the Rome Statute after the city where the drafting convention was held.

There is no statute of limitations for war crimes, but the court cannot hear cases that predate its entry into force on July 1 last year. ICC Prosecutor Luis Moreno Ocampo has said the court’s first investigation will deal with war crimes committed since then in Congo.

Since the ICC came into force, Washington has undertaken several negotiations to defang the court. U.S. diplomats have amended U.N. Security Council resolutions to bar ICC prosecution of any citizen or soldier connected to peacekeeping missions in East Timor and Bosnia-Herzegovina.

Another U.S.-backed resolution exempts all soldiers in U.N.-authorized peacekeeping missions and multinational forces. That one-year exemption was recently renewed, and the Bush administration says it expects it to be rolled over annually.

But the efforts have angered nations that support the court and resent Washington’s efforts to protect its citizens. They say the protections are not needed in any case.

It would be almost impossible for U.S. soldiers serving in Iraq to come before the court, legal experts say, since the country is not a signatory and cannot refer purported crimes to the court.

But U.S. officials point out that any country can arrest and turn over a person accused by the court, and warn that as the ICC becomes better established, more governments are likely to join.

For that reason, U.S. officials plan to continue negotiating exemptions with any government that will discuss them, even if it is not a party to the court.

“If you find a rock with a flag on it, we’ll negotiate an agreement,” one U.S. official said last week.

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