Saturday, February 25, 2006

ICC and Aid Withdrawal

I wrote a very interesting essay on Article 98(2) Agreements in International Law last year. Well, interesting for me to write and research, rather than interesting to read.

In any case, you might ask, what is an Art 98(2) Agreement? Essentially, Article 98(2) restricts the jurisdiction of the International Criminal Court, so that where there is an existing agreement between States as to the treatment of their national armed forces accused of war crimes, the Court cannot require extradition of that national. Such extradition is effected by the issue of a Surrender Request to the country of which the accused is a national. The country can then refuse the request under Art 98(2). Put simply, a country is not obliged to act contrary to its existing international obligations, which includes obligations pursuant to treaty.

The problem is, the Article was written to cover Status of Forces Agreements signed before the Court came into existence. Usually, these agreements provide that where a member of the armed forces is accused of criminal behaviour, they are to be brought home and tried in the domestic jurisdiction, or by military tribunals. I am not sure, but think of the Abu Gharib soldiers who were tried in US Courts.

The Article was not intended to allow a State to oust the jurisdiction of the Court in the way the US is now doing. The US is forcing countries to sign agreements that provide that US nationals accused of war crimes will not be handed over to the ICC by the nation signing the agreement. The US threatens a withdrawal of aid and military assistance for countries who refuse to sign.

It is a blunt tool for the US to use and an extreme method of preventing the exposure of US nationals to the ICC. The agreements are actually illegal and invalid at international law, but as we know, the US doesn’t particularly care about international law unless it suits. And now, we have the first manifestation of the implications of this policy. Bolivia will be refused aid, because it had the temerity to tell the US that if an accused war criminal were found on its soil, it would hand the accused over the ICC.

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