Mr. Bush’s chief complaint against the ICC has been that it will unfairly target U.S. military personnel serving abroad. As Commander in Chief, he is worried that the thousands of U.S. military forces currently deployed around the world will face trumped up charges of war crimes and the like by a politicized Court. Yet countless officials, both American and European, have assured Mr. Bush that the Court is politically impartial, and furthermore, that even if U.S. military personnel commit war crimes, crimes against humanity, or genocide, they are very unlikely to be hauled into the ICC. This is because the ICC is by definition a court of last resort, meaning that it can only hear cases when national courts are destroyed or unable to handle the case, or are purposefully shielding the accused from justice.

Because the U.S. has a sound judicial system in place, in most cases the ICC will not have jurisdiction to try U.S. military personnel. Indeed, several British soldiers were recently charged with war crimes committed in Iraq under the UK ICC Act and are facing court-martial in Britain, not a judge in the ICC. Nevertheless, the Bush administration refuses these assurances and has made its animosity for the Court well known. Yet of all the drastic measures it has taken since the Court’s establishment in July 2002, none are as alarming as the administration’s recent push for Bilateral Immunity Agreements (BIAs) to be signed between the U.S. and state parties to the ICC. The latest ICC state party to be targeted by the U.S. to sign a BIA is Kenya.

It is critical to note that there are already existing agreements between the U.S. and countless other countries that address President Bush’s concerns regarding military personnel by granting the U.S. jurisdiction over its service members for acts they commit in the course of their military duties. These agreements are called Status of Forces Agreements, or SOFAs, which both the U.S. and Kenya signed in 1980, well before the establishment of the ICC. Under this SOFA, Kenya has agreed to turn over U.S service members and other military personnel accused of committing crimes in Kenya to the U.S. for prosecution, rather than prosecuting them in Kenya’s domestic courts or sending them to an international court or tribunal. Indeed, countries often agree on SOFAs, which regulate jurisdiction over the soldiers and diplomats of one country (the “sending state”) who are sent on official business to another country (the “receiving state”).

Yet in light of Kenya’s recent ratification of the ICC, the U.S. has put pressure on the African nation to go one step further and execute a BIA with the U.S. A BIA is much broader in scope than the existing SOFA and would require Kenya to turn over all U.S. nationals—not just military personnel—as well as any employee of the U.S—to the U.S. Employees include both U.S. nationals and other countries’ nationals (such as Kenyans themselves) who have worked or are currently working for the U.S., including contractors. These all-encompassing categories mean that Kenya would have to grant immunity to U.S. soldiers accused of atrocious crimes in other countries who are on Kenyan soil, even as tourists. It would also mean that the Kenyan government couldn’t decide to send a Kenyan national who happened to work for the U.S. government, or a U.S. citizen or national acting as a mercenary and involved in atrocities, to the ICC without the permission of the U.S.

Signing this BIA would put Kenya in clear violation of Article 98 of the Rome Statute and therefore international law. Contrary to arguments made by the Bush Administration, Article 98 of the Rome Statute recognizes the validity of SOFAs, not BIAs. In response to the existence of SOFAs, the Statute states that the ICC will not accept the surrender of an individual covered by one of these sending- and receiving-state agreements unless the sending state, which retains jurisdiction of the individual under the SOFA, agrees. However, the language of Article 98 expressly requires this sending and receiving relationship between states. That is, Article 98 only exempts individuals sent on official business to another state and received for that official business by that state. Only two classes of individuals fall under this category, namely military personnel who are sent on mission to another country, and diplomats who are sent on official state business (diplomatic immunity is also addressed in a different part of the ICC treaty). Because of the way the Statute has defined sending and receiving, it does not allow for private U.S. nationals or U.S. employees to fall under either the military or diplomat categories. Yet that is exactly what the BIA requires, namely that any and all U.S. nationals and current and former employees be immune from the ICC’s jurisdiction.

Putting aside the Rome Statute and Kenya’s legal obligations pursuant to this Statute, U.S. legislation itself does not call for the immunity of all U.S. nationals and employees. There are two pieces of legislation that could affect aid to Kenya, namely the 2002 American Servicemembers’ Protection Act (ASPA) and the Fiscal Year 2006 (FY06) version of the Nethercutt Amendment. ASPA, which is standing law, restricts military assistance to countries that join the ICC and do not sign a BIA with the U.S. The Nethercutt Amendment, which has to be renewed on a yearly basis, restricts Economic Support Funds in the same way. Originally passed in the FY05 Foreign Operations Appropriations Act as an amendment, it is now a provision in the draft FY06 bill, but is not yet law.

Both pieces of legislation prohibit the specified assistance to any country that is a party to the International Criminal Court and has not “entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country.” This means U.S. personnel currently present in that country – not former personnel, not contractors, and certainly not random U.S. citizens who don’t work for the government in any way. Why then is the U.S. demanding immunity for private citizens accused of committing the world’s very worst crimes in another country?

What’s more, both the ASPA and the proposed FY06 Foreign Operations Appropriations language grant the President a waiver: they allow the administration to give aid to countries if the President says that it’s in the U.S. national interest. Indeed, the Bush administration has been criticized for alienating Kenya, a nation that a White House funding request described as “the linchpin of East African stability and security.” What’s at stake for Kenya are Foreign Military Financing (FMF) funds that would be used for much needed military services and training, Economic Support Funds (ESF) that would promote the economy, infrastructure, development projects, and political stability in Kenya, and International Military Education and Training (IMET) grants which would pay for professional education in military management and technical training on US weapons systems. Given Kenya’s pledge to fight terrorism, its troops in Darfur, and commitment to regional security, wouldn’t it make sense for the Bush Administration to grant it a waiver?

Kenya is at a crucial juncture: it must either bow to U.S. pressure and abandon its obligations under the ICC, or hold steadfast to basic principles of domestic and international law and refuse to sign a BIA with the U.S. Kenya is not alone in making this decision—other African nations such as South Africa, Mali, Namibia, Tanzania, Lesotho, and Niger are also resisting the Bush administration’s strong-arm tactics. Kenya is a sovereign nation, and its government has the right to join the ICC. Signing a BIA with the U.S. would not only violate the Rome Statute, but would also go against overwhelming public sentiment in Kenya. The Kenyan government and people have made their wishes clear, and they must ask the U.S. to respect them, not threaten them.

Updated August 10, 2005

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