Argument: The BIAs were only granted following bully tactics from the United States

The United States has been accused of using bullying tactics in the pursuit of gaining Article 98 Agreements by, amongst others, Human Rights Watch [1] .

This has included significant reductions in non-military, development aid, including to countries such as South Africa, the Bahamas [2] and Peru [3] , as well as making threats to accession to NATO in the case of Croatia. [4]

By signing up to Article 98 Agreements, European nations help contribute to a climate where smaller nations can also be strong-armed in to harming the International Criminal Court by signing them, even if they were not subject to blackmailed in to it themselves.

[1] Roth, Kenneth, “Letter to the US Secretary of State Colin Powell on Bully Tactics against the International Criminal Court”, Human Rights Watch, 2003 http://www.hrw.org/en/news/2003/06/29/letter-colin-powell-us-bully-tactics-against-international-criminal-court

[2] Roth, Letter to Colin Powell, 2003

[3] Keppler, Elise, “The United States and the International Criminal Court: The Bush Administration’s Approach and a Way Forward Under the Obama Administration”, Berkeley Journal of International Law, 2009, 2, p12, http://bjil.typepad.com/Keppler_forPDF_[RC][1].pdf

[4] Roth, Letter to Colin Powell, 2003

Candidate 1: "The US is not focusing on encouraging existing NATO members to withdraw from the ICC. Existing NATO members are not subject to the aid-cutting provisions of US law (before and after the Presidential waiver was created), neither are major non-NATO allies – indeed, all EU member states in NATO are ICC members, with the exception of Romania none have signed an Article 98 agreement.

Much of the US antagonism to the ICC came during the Bush administration, when the ICC was an unproven organization in its infancy.

Since then, US Policy towards the ICC has softened, as can be evidenced by the US voting in favour of referring the situation in Libya to the ICC (compared to abstaining in the referral of Darfur), so it would be unlikely to do much harm to bilateral relations if other states were to expand their co-operation. No EU member state other than Romania has entered in to an Article 98 Agreement with the US. [1]

[1] Barbour, The International Criminal Court, 2010"
Candidate 2: "While they undermine the court, they are an inevitable quid pro quo of part of diplomatic relations with the US, the last remaining superpower. While impunity is not ideal, it is better than not signing and taking part in international criminal justice at all. Creating BIAs does not mean that the countries in question will absolve their own citizens of wrongdoing instead they are likely to be tried at home and in some cases may still be handed over to the ICC."
Candidate 3: "The text of the Rome Statute is clear. Article 98(2) is unspecific as to the variety of international agreements that it covers, unlike the narrower Article 98(1) covering diplomatic immunity.

Article 98 Agreements are a tool that is a legitimate method of the US ensuring that US citizens are not subject to trial and punishment by a court which the United States is not a part of. This would run against the principle that a treaty only affects states that have signed and ratified it, rather than any others."
Candidate 4: "Theoretical impunity is still impunity. The concept that any entity should be given special treatment by the law runs contrary to principles of the rule of law. If such immunity is not going to be needed then there is very little reason for the agreements in the first place and there should be little objection to getting rid of them."
Candidate 5: "The Rome Statute itself does not bind any state to be put on trial – it binds individuals. Individuals violating the criminal law of a state (the Rome Statute also integrating the international criminal law in to the national criminal law) have always been subject to trial and punishment by that state, barring cases of diplomatic immunity or other separate cases. This is nothing new – the Rome Statute respects the sovereignty of a nation within its territory. If anything, it is the use of coercive tactics by a state to give its citizens immunity from the ordinary law that is the violation of national sovereignty.

Even without the BIAs it would only be possible to prosecute Americans if they commit an international crime in the jurisdiction of another state. When this occurs due to the principle of territoriality it has traditionally been the case that the state upon whose territory the act was committed is able to try those who committed the act. It is not a violation of sovereignty to allow the ICC rather than the other state the right to bring the defendant to trial."
Candidate 6: "The United States is not under any form of responsibility to other states to provide them with military and other aid. Aid has always been provided with strings attached to those whose receipt of aid is considered beneficial. It is within the purview of the US to decide who they give aid to, based on their own priorities. This is simply part of the diplomatic process. If the US wishes to provide aid to countries that sign up to treaties then this is its right, it is perfectly normal to provide a sweetener to encourage states to sign up while punishing those that don’t.

This then is a good reason why these European states should not pull out of their BIAs. To do so would mean losing the financial benefits being provided. At the same time it would also show that these states are not to be trusted when they sign up to international agreements."

The United States is not under any form of responsibility to other states to provide them with military and other aid. Aid has always been provided with strings attached to those whose receipt of aid is considered beneficial. It is within the purview of the US to decide who they give aid to, based on their own priorities. This is simply part of the diplomatic process. If the US wishes to provide aid to countries that sign up to treaties then this is its right, it is perfectly normal to provide a sweetener to encourage states to sign up while punishing those that don’t.

This then is a good reason why these European states should not pull out of their BIAs. To do so would mean losing the financial benefits being provided. At the same time it would also show that these states are not to be trusted when they sign up to international agreements.
