To kill a court

Print edition : January 31, 2003

Indian Foreign Secretary Kanwal Sibal (right) and U.S. Ambassador to India Robert Blackwill after the signing of a `non-surrender' agreement in New Delhi, on December 26, 2002. - PRAKASH SINGH /AFP

A quiescent India toes the U.S. line in the battle over the International Criminal Court.

THE Bush Administration has been straining every nerve to nullify the potential of the International Criminal Court (ICC). `Impunity agreements' are the most recent tactic it has deployed in its aggressive attempts to derail the ICC, and to keep an exceptional position for the U.S. in any system of accountability and deterrence that may develop in the international arena. These agreements - variously termed `exemption', `Article 98' or `non-surrender' agreements - are bilateral treaties which provide that neither country will surrender any current or former government official or national of the other country to an international tribunal without the express consent of that country. This is not limited to the nationals of the two states, but could include anyone in the pay of either state, including for instance those involved in espionage or undercover operations. The impunity agreement amounts to an express assertion of non-cooperation with the court.

President Bush, speaking to reporters in the last week of September, explained the rejection of the ICC and the pursuit of impunity agreements: "I strongly reject the ICC. I'm not going to accept an ICC. I'm not going to put ourselves in a position where our soldiers and diplomats get hauled into a court over which we have got [no control] - the prosecutors whom we don't know, the judges - I mean, we're not going to allow ourselves to do that. And our friends shouldn't want us to be put in that position. Therefore, we're seeking Article 98s from our friends." On December 26, 2002, India became the 15th country to enter into such a bilateral agreement with the U.S.

Although the U.S. had voted against the statute in Rome in June 1998, President Bill Clinton signed it on to the multilateral treaty in December 2000: a parting gift before he set down office. The Bush Administration was relatively low-key on the ICC issue until the 60 ratifications needed to establish the court came in in April 2002. There was some effort to bully countries not to sign or ratify the ICC; but this manoeuvre, essayed through U.S. consulates around the world, did not prevent the signatures and ratifications from building up beyond the magic number that would ensure its establishment. Since then, the Bush Administration has shown enterprise and arrogant genius in its efforts to render the ICC redundant even before it is constituted. On May 6, 2002, the U.S. launched its attack on the ICC by `un-signing' itself from the statute. It is a procedure not known to international law. In June-July 2002, it threatened to withdraw from peacekeeping operations in East Timor and in Bosnia and Herzegovina unless U.S. peacekeepers were granted impunity from prosecution. It succeeded in extracting a resolution from the Security Council on July 12, 2002 that would restrain the ICC from starting or proceeding with investigations or prosecutions of peacekeepers and other officials of non-state parties for a period of 12 months. On August 2, 2002, George Bush signed into law the American Servicemen's Protection Act (ASPA). Acquiring recognition as the `Hague Invasion' Act, it authorises the President to retrieve American nationals "using all means necessary" if they are held in The Hague for trial before the ICC. Dutch protests over this have left the American establishment unrepentant.

The impunity agreements are a continuation of this strategy of intimidation. In the first week of August 2002, the U.S. State Department briefed foreign ambassadors on U.S. opposition to the ICC. They were warned that ASPA prohibits military assistance to countries that are party to the ICC treaty, but allows the President to waive the ban if the state were to enter into an impunity agreement, or where he finds it to be in the U.S. national interest. Since the end of August, the U.S. has been on the offensive, procuring bilateral agreements. Israel, Romania, East Timor, Tajikistan, the Marshall Islands, Afghanistan, Honduras, Uzbekistan, Mauritania, the Dominican Republic, Palau, Micronesia, Gambia, Sri Lanka, India and Nepal have so far signed the bilateral agreement. Pressure has been mounting on other countries too to sign the treaty, and the European Union's (E.U.) weak protest, which ended in a conciliatory whimper at the end of September, is symbolic of the bulldozing capacities of the U.S. After much hemming and hawing, on September 30 a deeply divided E.U. set down three guidelines to be followed by countries that may decide to enter into bilateral agreements with the U.S. The first guideline was that there should be no immunity for any individual who is alleged to have committed crimes against humanity, war crimes or genocide. The second was that if they were U.S. personnel, and they were not to be surrendered to the ICC, the U.S. was obliged to try them in their courts. And, the E.U. ruled out reciprocity. The U.S., of course, reportedly finds this formula inadequate as this does not provide blanket immunity to all U.S. citizens living or serving away from home.

According to the U.S., Article 98 provides the space within the ICC statute to accommodate these impunity agreements. Legal opinion is not quite so categorical. Article 98 cautions the court against proceeding with a request for surrender that may require a requested state to act in a manner that is inconsistent with its obligations under international agreements. But this, experts point out, was a provision introduced into the statute in the final stages at the Rome Conference, and it was intended to deal with existing Status of Forces Agreements (SOFAs); SOFAs only apply where there is a `sending state' which sends its troops to be stationed in another state under an agreement. The U.S. attempts to extrapolate this provision to mean that all agreements into which it may enter are not in conformity with the statute. It may be a misnomer to term these treaties `Article 98 agreements'.

On November 14, 2002, John Bolton, the U.S. Under Secretary of State for Arms Control and International Security and who is leading the U.S. effort to find bilateral signatories, was reported to have said: "In the near future, we will also be holding discussions on the issue with several countries in the Middle East and South Asia." That was the first indication that the focus was shifting out of Europe and moving southwards. U.S. officials had been avoiding identifying specific countries with which they were seeking immunity deals, evidently in order to avoid pressure being exerted on the governments not to negotiate them.

IN India, the signing of this treaty was a closely held piece of information. There was no public information of the impending deal, no discussion which could have elicited public opinion. And, now that the treaty has been signed, sealed and delivered, there is no means of retracting even if the agreement were to meet with public opprobrium. Treaties concluded by the executive do not have to be sanctified by parliamentary acceptance, nor may they be dislodged by parliamentary disapproval. The potential for irresponsible conduct that may tie down the whole polity has no checks when the executive is exercising its treaty-making power. In non-governmental circles, there has been an apprehension for some time now that the U.S. will push through agreements with countries where it plans to base its operations in its future militaristic ventures. The stopover by two planes on Indian territory in the first week of January this year, while on their way to the Iraq theatre where the U.S. is bent on staging war, tells its own story.

A spokesman for the Indian government talked warmly of the "strongest possible commitment to bring to justice those who commit war crimes, crimes against humanity, genocide" that is shared by India and the U.S., and of the accord being "emblematic of the strides that continue to be made in transforming India-United States relations". The claim lacks conviction. Even given India's opposition to the ICC, it is plain that the initiative for these impunity agreements has come solely from the U.S., and that India has signed it like any of the other countries that have buckled under U.S. pressure. While the U.S. goes about its mission of nullifying the ICC in relation to its officials and citizens, India shares this reciprocity with just the U.S. This, in other words, is a U.S. campaign, with India contributing to the U.S. being able to realise its aims. If, therefore, U.S. personnel commit grave crimes on Indian soil, or are found on Indian territory having participated in such crime, the Indian state would not retain the option of the use of an international tribunal to try and punish the criminal.

As for the claim of commitment to justice, despite the 1984 anti-Sikh riots, and the more recent carnage in Gujarat, the crime of genocide finds no place in Indian law. Nor have the large numbers of disappeared persons in Punjab and in Kashmir given such disappearances legislative recognition. The record of the Indian state in the matter of crimes of grave import is far from impeccable.

U.S. peacekeepers in Bosnia (a file picture). In July 2002, the U.S. succeeded in extracting a resolution from the U.N. Security Council, which restrains the ICC from prosecuting peacekeepers and other officials of non-state parties for 12 months.-LAURENT VANDER STOCK/GAMMA

Bolton calls the impunity agreements "non-surrender agreements". The Washington Post has termed it the `non-extradition pact'. In effect, by means of these agreements the U.S. is seeking to ensure that the ICC will be unable to set eyes on any accused person over whom the U.S. asserts an interest. From its original expression of concern that its peacekeepers should be protected from any threat of prosecution before an international tribunal, it has now stretched the logic to cover all officials and nationals. And there is no guarantee that they would be tried in the U.S. In entering into these reciprocal treaties with states that have ratified the ICC statute, a conflict of obligation arises; Romania and Tajikistan and East Timor are, for instance, state parties to the ICC statute and have an obligation to cooperate with the court. Cooperation includes the surrender of the accused if found on their territory, and where the court, having applied the principle of complementarity, asks for such surrender. The bilateral agreement would deny the state the right to cooperate with the court thus.

John Bolton said: "Signatories of the Statute of Rome have created an ICC to their liking, and they should live with it. The United States did not agree to be bound, and must not be held to its terms." What he is also saying is that, especially in getting states parties to the statute to sign the treaty with it, the U.S. is not merely working at providing protection to its nationals and officials, but is actively engaged in undermining the court. Having failed to prevent a multilateral ICC treaty from emerging, the U.S. is attempting multiple bilateralism in order to kill the court. This cynical disdain of the very real problem of impunity is perhaps not surprising at a time when the U.S. is expanding its militaristic horizons.

In the meantime, the number of states becoming parties to the statute has continued to rise, and with Barbados joining up on December 10, 2002, it has reached 87. Israel, which had signed but not yet ratified the statute, has now chosen the U.S. path. Bolton explained in a speech delivered to the Federalist Society on November 14, 2002: "There seems little doubt that Israel will be the target of a complaint in the ICC concerning conditions and practices by the Israeli military in the West Bank and Gaza. Israel recently (on August 28) decided to declare its intention not to become a party to the ICC or to be bound by the statute's obligations."

Between February 3 and 7, 2003, the election of 18 judges to the ICC will be held at the United Nations headquarters in New York. The profile of the court that has been established to deal with impunity will then begin to emerge. Nobody expects the court to provide a cure for all the ills that blight a violent, unequal and often irrational world. But it could be the first steps towards rending the shield of impunity that has protected mass murderers and violators in the past. The U.S. continues to demand an exclusivity which, if it cannot get it by acquiescence, it warrants it can by intimidation. India stands among the quiescent, sharing a distrust of the ICC and a touching faith in the honourable intentions of the U.S. The tug-of-war between the proponents of the ICC and the U.S. has, plainly, escalated into a battle.

Usha Ramanathan is a New Delhi-based researcher in law.

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