Law School Discussion

Rumsfeld, other US officials facing war crimes charges in Germany   
Bernard Hibbitts at 10:19 AM

[JURIST] The New York-based Center for Constitutional Rights and four Iraqi citizens will file a criminal complaint in Germany Tuesday against Defense Secretary Donald Rumsfeld and seven other high-ranking US officials, seeking to hold the officials accountable for acts of torture allegedly carried out at Iraq's Abu Ghraib prison. German courts recognize the doctrine of universal jurisdiction, allowing prosecution of suspected criminals no matter where they are located, for crimes defined in the International Criminal Court's Rome Statute [PDF], including war crimes, genocide and crimes against humanity. The four Iraqis say they were victims of severe beatings, sleep and food deprivation, hooding and sexual abuse. CCR has background on the case and Reuters has more. Der Spiegel has local coverage (in German). More details are expected later Tuesday.

It is really a shame that 41 countries have not yet ratified the treaty. Not to mention that in 2002 the U.S. began to undertake measures to shield U.S. nationals from prosecution by the ICC. The Congress passed the American Service Members' Protection Act, which included a prohibition on the United States providing military aid to countries which had ratified the treaty establishing the court; however, there were a number of exceptions to this, including NATO members, major non-NATO allies, and countries which entered into an agreement with the United States not to hand over U.S. nationals to the Court.

Enter Article 98. As part of the U.S. campaign to exclude its citizens and military personnel from extradition by the ICC, the U.S. Bush administration has been approaching countries around the world seeking to conclude Bilateral Immunity Agreements, or "Article 98" agreements. The U.S. has a law requiring the suspension of military assistance and U.S. Economic Support Fund (ESF) aid to those States Parties which do not sign these agreements. The granting of such special favors is of course always subject to diplomacy. ESF funding entails a wide range of governance programs including international counter-terrorism efforts, peace process programs, anti-drug trafficking initiatives, truth and reconciliation commissions, wheelchair distribution and HIV/AIDS education, among others. In 2003, the United States stopped military aid for 35 countries (among them 9 European countries). U.S. law requires the cessation of such aid payments if a state is unwilling to sign the bilateral agreement (there are exceptions for NATO-members and allies such as Israel, Egypt, Australia and South Korea). In March of 2006, Condy admitted that the United States' position on Article 98 agreements was "sort of the same as shooting ourselves in the foot."

Amnesty International and the European Commission Legal Service, along with several other groups supporting the ICC, have claimed that these agreements the United States is attempting to negotiate are not valid under Article 98. They argue that the language in Article 98 is normally used in international law to refer to Status of Forces Agreements (SOFA), mission agreements and extradition treaties; hence they claim that Article 98 can only be used for these purposes, and not to create a general exclusion for other states' nationals from being handed over to the ICC. Romania was one of the first countries to sign an Article 98 agreement with the United States. In response to Romania's action, the European Union requested that candidate countries not sign Article 98 agreements with the United States until the EU ministers had met to agree upon a common position. In October 2002, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning U.S. military personnel, U.S. diplomatic or consular officials, and persons extradited, sent to their territories by the U.S. with their permission -- not the general protection of U.S. nationals that the United States sought; furthermore the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States. This was in agreement with the original position of the EU, that Article 98 agreements were allowed to cover these restricted classes of persons but could not cover all the citizens of a state. The U.S. has cut aid and development funding for many countries in retaliation for not signing bilateral Article 98 agreements. Countries who have so declined aid include Barbados, Brazil, Costa Rica, Peru, Venezuela, Ecuador, Saint Vincent and the Grenadines, South Africa, and several other Caribbean, Latin American and African countries.