Growing EU-US rift over the International Court

The Bush administration has warned the EU that the US role in NATO will change if the Union refuses the US request for agreements to give Americans immunity from the new International Criminal Court.

The US ambassador for war crimes issue Pierre-Richard Prosper said that if the EU ruled against the US its participation in joint peacekeeping operations would be in doubt. He also said that if countries that were candidates for NATO membership did not sign such an agreement, “it will be an issue that we will have to discuss in the NATO context”.

A confidential legal opinion, drafted by the Commission’s legal services, advises against the US request. The document is reported to conclude that the bilateral agreements proposed by the US are not covered by Article 98 of the ICC treaty. Article 98 exempts countries from extraditing citizens of another country to the court if this would conflict with an existing agreement with that country.

The US-EU rift over the court complicates Washington’s search for allies in a possible action against Iraq. US Vice President Dick Cheney warned that the Iraqi leader Saddam Hussein would “fairly soon” have nuclear weapons, and would “seek domination of the entire Middle East, take control of a great portion of the world’s energy supplies, directly threaten America’s friends throughout the region and subject the United States or any other nation to nuclear blackmail.” He underlined that the risks of inaction are far greater than the risk of action.

The EU members are divided on the prospect of a possible military intervention by the US to oust Saddam Hussein from power. Only British Prime Minister Tony Blair has expressed his support for a US strike, but he has come under serious criticism from within his own party to change his stance.


Lotte Leicht, the Brussels director of Human Rights Watch, called on the EU foreign ministers to "deal with these 'impunity agreements' with a sharp legal analysis". "There is no lawful basis in the ICC treaty's Article 98 for such agreements with the United States. The European Union has a Common Position to defend the integrity of the treaty and now it is time to stand by that position," she underlined.


The EU members are strong supporters of the International Criminal Court (ICC), which opened in July in The Hague. The ICC is the first permanent court for trying people charged with genocide and other crimes against humanity.

The US is concerned that the International Criminal Court (ICC) could be used for politically motivated prosecutions against American peacekeepers serving abroad. Washington is seeking permanent immunity from prosecution by signing bilateral agreements with ICC signatory countries. Washington has warned that it would cut US military aid to countries who refuse to sign the immunity agreement under the new US antiterrorism law.

The candidate countries for EU membership have come under pressure from the US to give American peacekeepers immunity from the International Criminal Court. While Washington is using military aid and its consent to NATO enlargement as leverage, the EU has warned the candidates not to sign any agreements with the US before the EU has taken its position on the issue.

Romania is the only candidate country so far to sign such a bilateral agreement with the US. The Romanian Government has been criticised by the Commission which said that Romania should have consulted the EU before signing the agreement.


The Foreign Ministers of the 15 Member States will discuss the issue at their informal meeting in Elsinore on 31 August. The US Secretary of State Colin Powell urged individual European governments to ignore Brussels' request to wait for a common EU position on the issue. In a letter, sent on 16 August, he asked them to sign separate agreements with the US.

The issue of Iraq will also be discussed at the Elsinore meeting.


Subscribe to our newsletters