The bilateral immunity agreements (BIAs) proposed by the U.S. government are illegal under the Rome Statute and are not required by U.S. law.

Text of Article 98(2) of the Rome Statute:
"The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for surrender."

Key Operative Clauses of U.S. Proposed Bilateral Agreement:

1. For purposes of this agreement, "persons" are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the expressed consent of the first Party,

   (a) be surrendered or transferred by any means to the International Criminal Court for any purpose, or

   (b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to the International Criminal Court.

Legality:
Article 98(2) refers to "sending" states and addresses Status of Forces Agreements (SOFAs) and other agreements involving a sending State/receiving State relationship. It is therefore meant to cover individuals officially sent by one country to another, such as peacekeepers, diplomats, and observers.

By including individuals not "sent" by the U.S. and "received" by another country, the U.S. bilateral agreements reach far beyond the scope of, and violate, Article 98(2). In fact, by exempting an entire class of people from the Court’s purview (all Americans and some non-nationals as well), these agreements undermine the fundamental purpose and intent of the Rome Statute (no immunity for the world’s worst crimes). Signatories and States Parties to the Rome Statute would thus breach their legal obligations to the treaty by concluding such agreements with the U.S. 

The European Union has concluded that "Entering into U.S. agreements – as presently drafted – would be inconsistent with ICC States Parties’ obligations with regard to the ICC Statute and may be inconsistent with other international agreements."  To bring the U.S. proposal back within the legal scope of Article 98(2), the EU would require at least four modifications:

• No impunity: A guarantee that the U.S. would investigate and potentially prosecute the accused in its domestic courts.
• No reciprocity: Nationals of ICC States Parties must be excluded from coverage.
• No universal scope: These agreements can only cover persons officially sent on government business by a State.
• Ratification: The agreement must be approved according to the constitutional procedures of each individual state.

U.S. Law: The American Servicemembers’ Protection Act (ASPA):
This law, signed by President Bush in August 2002, does not bind the Administration.  Broad waivers and exemptions allow the President to continue providing aid to countries that choose not to conclude these agreements.  Section 2007, which bars U.S. military assistance to States Parties after July 1, 2003 includes several waivers:

• The President can continue providing assistance to these countries if he or she deems it important for U.S. national security.
• The following countries are specifically exempted and will continue receiving U.S. military assistance in all circumstances: all NATO countries, Argentina, Australia, Bahrain, Egypt, Israel, Japan, Jordan, New Zealand, Philippines, the Republic of Korea, Taiwan, and Thailand.
• In addition, the President can issue a waiver if a country agrees to "prevent the International Criminal Court from proceeding against United States personnel present in such country." (This is a much more narrow scope, covering only U.S. personnel sent to another country, than what the Bush administration is demanding.)

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Additional Sources on Legality of BIAs:

• Wall Street Journal (Europe) op-ed by David Scheffer, former U.S. Ambassador-at-Large for War Crimes Issues who negotiated the inclusion of Article 98 into the Rome Statute
• Amnesty International's thorough legal analysis of Article 98 and the proposed U.S. text
• Human Rights Watch's legal analysis
• Legal conclusions of U.S. allies regarding BIAs

Last updated October 18, 2005

AT-A-GLANCE SUMMARY OF COUNTRIES THAT HAVE SIGNED BIAs
(PDF version)

THE AMERICAN SERVICEMEMBERS' PROTECTION ACT (U.S. restrictions on military aid)

THE NETHERCUTT AMENDMENT (U.S. restrictions on economic support funds)

DO BIAs VIOLATE INTERNATIONAL LAW?

SANCTIONING ALLIES: EFFECTS OF THE BUSH ADMINISTRATION'S ARTICLE 98 CAMPAIGN

FORMAL POSITIONS OF U.S. ALLIES ON BIAs

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