INAF significant role in the promotion and protection of

INAF
U6765 EU&US, and International Human Rights

Instructor:
Prof. Jan Wouters

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Leren
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Fall 2017

In Retrospect: Conflicts and Compromises between the EU
Member States and the US on the making of International Criminal Law

Over the past few decades, a variety of multilateral
organizations constantly played a significant role in the promotion and
protection of international human rights. They include the United Nations, with
its range of human rights organs (such as the Human Rights Councils), and also
the International Criminal Court, the Council of Europe and the Organization of
American States, all of which had made great achievements in the protection of
international human rights in their specific areas.

However, being multilateral in nature, these
international organizations cannot avoid the conflicts with its member states
when organizations’ core legal treaties or provisions impair states’ interests,
and because of that, in the stage of establishing these organizations, some
prospective member states never ratify the agreements and ultimately never join
the organizations. On the other hand, some organizations choose to compromise
and amend its original treaties. This essay will focus on these conflicts and
compromises happening at the early stage of the development of the
International Criminal Court. More specifically, the emphasis will be given to
the role of EU Member States and the US in the making and modification of the
relevant International Criminal Laws. Two cases will be addressed in this
essay: First, the case of the Universal Jurisdiction Laws in Belgium and the
following amendments of this Law; Second, the crisis of Bilateral Agreements on
International Criminal Court Immunity initiated by the US. From these two
cases, we could not only clearly see the consistent styles of foreign policy
making from EU Member States and US, and their impacts on the establishment of
International Criminal Laws, but learn several lessons about how to use the
mechanism of multilateralism to protect and promote international human rights.

1.
      Background

The International Criminal Court (ICC) is the world’s
first international court designed to ensure individual accountability for the
most serious crimes under international law: genocide, war crimes and crimes
against humanity. It was established by the Rome Statute of 1998, which entered
into force on 1 July 2002.1

Before we delve into the two cases studies, let’s take a
brief look at what roles EU and the US had played at the early stage of the history
of the ICC. The EU has been consistently supporting the establishment and
functioning of the ICC. This support could be traced back to the early stage,
when EU Member States played a central role in the negotiation of the Rome
Statute in 1998.2
Soon after that, all the fifteen Member States back to that era signed and
ratified the Rome Statute, and most of them have adopted the necessary
implementing legislation.3

Three years after the close engagement with formulating
the Rome Statute, in June 2001, the Council of the European Union adopted its
first Common Position on the ICC. The agreement of The Common Position made a
clear clarification to the public of EU’s firm support for the ICC as well as
their motives and aims.

“The consolidation of the rule of law and respect for
human rights, as well as the preservation of peace and the strengthening of
international security, in conformity with the Charter of the United Nations
and as provided for in Article 11 of the EU Treaty, are of fundamental importance
to, and a priority for, the Union. … The Union is convinced that compliance
with the rules of international humanitarian law and human rights is necessary
for the preservation of peace and the consolidation of the rule of law.”4

In the agreement of The Common Position, the Council
emphasized the deep conformity between the Rome Statute and the EU Treaty for
multiple times. It is eminent that the Council not only pointed out directly
the functions of ICC and the practical benefits the ICC could bring to EU—the
preservation of the international security, the Council also focused on the
fundamental ideas of ICC—the protection of the international human
rights. In its following articles, The Common Position also expressed EU’s
future plan for their implementation of the Rome Statute. EU and its Member
States would “make every effort…raising the issue of the widest possible
ratification, acceptance, approval or accession to the Rome Statute…and in
negotiations or political dialogues with third States, groups of States or
relevant regional organizations”5
The idea of encouraging other states and organizations to join and closely
engage themselves with the ICC could explain EU’s decisions and reactions in
the following cases studies. Overall, EU’s consistent support for the ICC was
actually starting from the stage of the establishment of the ICC, and EU’s
motive should be linked with the protection of the international human rights and
the international security.

In a sharp contrast, the United States has never embraced
the ICC. Looking back to the stage of the negotiation of the Rome Statute, US government
had already gained many beneficial objectives it required, including the
principle of complementary jurisdiction, and the right of the United Nations Security
Council to defer cases.6
However, the US ultimately voted against the Rome Statute in 1998.
Interestingly, in 2000, President Clinton signed the Rome Statute three weeks
before leaving office, and regarding the statutes, he made a clarification to
explain US’s aims to:

“reaffirm our strong support for international
accountability and for bringing to justice perpetrators of genocide, war
crimes, and crimes against humanity. We do so as well because we wish to remain
engaged in making the ICC an instrument of impartial and effective justice in
the years to come.”7

In the Statement on
Signature of the ICC Treaty, President Clinton declared that motive of the US to support the ICC is to ensure its
“justice”. The US expected no excessive punishment for a relatively smaller violation or a wrong
accusation. More significantly, the concerns about the functioning of Court
still existed, and US clearly realized that “Court jurisdiction over U.S. personnel should come only with U.S.
ratification of the Treaty”8 Therefore, before completing a comprehensive assessment over the Court
jurisdiction, and ensuring that US citizens would be free from any charges
conducted by the Court, US would not take the risk ratifying the Rome Statute,
just as Clinton said at the end of the Statement: “I will not, and do not recommend that my
successor, submit the Treaty to the Senate for advice and consent until our
fundamental concerns are satisfied.”9
In the following years, the Bush Administration shifted to an attitude of
rejection toward the ICC, announcing that US government did not intend to
ratify the Statute and thus did not consider itself bound to comply with
its provisions.10 However, in the same period, the EU had already achieved its Common
Position in the ICC.

The backdrop roughly reveals the attitude of EU Member
States and US toward ICC at the early stage. And the following analyses of two
specific cases in EU-US dispute over the ICC laws happening in the same time
period would offer us more details about the conflicts and compromises between
them.

2.         Case Studies

Case 1 the Universal Jurisdiction Laws in Belgium and the
US reaction

On June 16, 1993,
Belgium passed the “Law Relative to the Repression of Serious Violations of the
International Conventions of Geneva of August 12, 1949, and of the Protocols I
and II of June 8, 1977.” The law allowed an individual to file a criminal
complaint in a Belgian court against any person for international crimes in
violation of the four 1949 Geneva Conventions and their additional Protocols.11
This new creation of law had made Belgium a
leader in the struggle for international justice.

Belgium’s several implementations of The
Universal Jurisdiction Law should be connected with the establishment and the
development history of the ICC since 1998. The Law was amended for three times
in total, which happened in the year 1999 and 2003. In the period between the year
1993 to 1999, the Law was presented to have a very optimistic future and gained
a wild-ranged support. On February 10,
1999, the law was amended cover genocide and crimes against humanity. Belgian
courts then were granted the Universal Jurisdiction to try the offences,
including the Crimes against humanity, and genocide. Any of these cases could
be brought before them, regardless of where the crime was committed.12 In the first amendment, Belgian courts
attached great importance to the punishment inflicted on the violation of human
rights, especially the crimes of genocide. Apparently, this amendment is in
line with the Rome Statute. Since the ICC officially entered into force later
in 2001, in that time period, the Belgian courts could be regarded as taking
the major responsibility to protect the international human with its advanced
legislation, before the emergence of any international organizations.

However, Belgium’s Universal Jurisdiction Law had only
been used successfully once in the so-called “Butare Four” case. The “Butare Four” consisted of
four Rwandans convicted in June 2001 for war crimes that occurred during the
Rwanda Genocide.13
By 2003, this Law kept causing the Belgian Government many problems, which was
deeply rooted in the basic idea if functioning. Since advocacy groups had the
right to initiate the criminal investigation in the Belgian court against any
officers of country and international personages, several US Governmental
officials were involved in these charges. Soon the US government showed a
furious reaction. The US government warned the Belgian government that the
status of Brussels as NATO Headquarters could be imperiled if its former and
current government officials continued to be targeted. Under such
circumstances, the Belgian Parliament finally compromised and decided to
radically amend the Universal Jurisdiction Law. In August 2003, Belgian
Parliament replaced the 1993 law with a much narrower jurisdiction scope. Later the law was amended again. The
Belgian Supreme Court dismissed all pending case against US officials.14 In the same year, the ICC had already entered into the force and EU had
achieved its Common Position in the ICC; Conversely, US did not join the ICC,
and by means of using its political power, US successfully impaired the
authority of the Belgian courts on their implementation of the Universal
Jurisdiction Law.

This case conveys rich indications. First, Belgian’s
creation of the Universal Jurisdiction Law reveals that Belgium, as an EU
Member State, once played a leading role in the development of the
International Criminal Law. The Belgian law was widely recognized as the most
far-reaching example of a state exercising Universal Jurisdiction. Secondly,
the later failure of the Law indicates US’s great threats to the development of
public criminal courts in any forms. This threat was also presented in US
government’s later rejection of the Rome Statute. Therefore, though the
Universal Jurisdiction stands for a beautiful wish of creating a useful new
tool in order to bring criminal perpetrators to justice, Belgium ultimately
chose to amend the law for three times under the pressure of the US government.
Third, the failure of the Belgian law, from another aspect, highlights the
necessity of establishing an intergovernmental organization, so that the
Universal Jurisdiction could be implemented with more supporting powers. The
collective support and dedication to the ICC became necessary for the EU Member
States. But do states with strong political power who reject the international
criminal laws, like the US, always prevail at the end and successfully guide disputes
over the international criminal laws to the direction of their advantage? In
the second case, we will read a different story.

Case 2: ASPA/BIAs Crisis

In the past few decades, the biggest challenge on the making of
International Criminal Law has been the US’s campaign for immunity from the ICC. In May 2001, the American
Service-members’ Protection Act (ASPA) was introduced to the US Congress, and in
its later statement in 2002, US government declared:

“The United States Government has an
obligation to protect the members of its Armed Forces, to the maximum extent
possible, against criminal prosecutions carried out by the International
Criminal Court.” 15

In June 2002, US Secretary of
Defense Donald Rumsfeld announced that Washington intended to pursue Bilateral
Immunity Agreements (BIAs) with governments around the world to protect US
citizens, government officials, military personnel and other employees from
surrender to the ICC.16
US officials argued that such agreements would be consistent with the second
provision of Article 98 of the Rome Statute.17
Ignoring EU and international objections and the outrage that swept human
rights and ICC advocates, President Bush signed the ASPA into Law while the US
diplomatic engaged themselves forcing third countries to sign as many BIAs as
possible.18

Later in the course of October 2002,
big EU Member States such as UK, France, Italy and Spain were targeted by US
diplomats, but in vain. In the end, no EU Member State signed a bilateral
agreement on ICC immunity with the US after the Council Conclusions were
agreed, and the US subsequently abandoned its effort to obtain such agreements.19

ASPA and the Bilateral Immunity Agreements could be regarded as the two
foreign policies of consistency. The Act indicated US appeal to protect
military heads from the prosecution of the ICC, the Agreements is the implementation
of ASPA. The fear of US regarding the ICC is actually quite understandable,
since in the decades before the establishment of the ICC, US Army had been
actively engaged in several overseas wars. Inappropriate military acts could be
easily suspected by third countries as the violation of the international human
rights. This fear brings up a most controversial topic on ICC. The issue of the
jurisdiction of the ICC is both a category of international criminal law and a
matter of international law. It relates to the sovereignty of States as well as
the relationship between international law and domestic law. However, whether
it is the complementary principle of the ICC or the initiation mechanism, what
kind of role it will eventually play in its concrete operation needs to be
answered by the practice of the ICC. No matter what ICC’s final explanations
and decisions are like, its reactions will, in turn, have a profound and
far-reaching effect on the development of international law as a whole,
international criminal law and international relations.

On the other hand, the resolution of ASPA/BIAs crisis indicates that the
ICC, as a multilateral organization, is advantaged to collect supports from numerous
member states, and successfully prevent damages, which are implemented by one
state, to organization’s authorities. In sharp contrast with the case of the
Belgian Universal Jurisdiction Law, the ICC ultimately managed to protect its
fundamental principles thanks to the collective support of the EU Member
States.

3.
      Conclusions

As analyzed in the previous texts, these two case studies
have a number of interesting implications. First, we could see that US
objection toward the International Criminal Court and its laws are very
consistent. During the 1990-2008 period, US played an active role in various
wars in the Middle East, which means that once the US accepted or ratified any
statutes from the International Criminal Court, the risk that US military
personnel being accused would be very high. In the first case, during the first
decade of the Belgian Universal Jurisdiction Law existence, some thirty legal
complaints were filed against a variety of government officials worldwide.20
US initiation of BIAs and ASAP, and the following movements of military
suspension of the third world countries who did not sign the BIAs are a clear
announcement that US will employ any means to hinder the functioning of the ICC
in order to warrant that no US citizens would be accused by the Court.

Second, EU State Members resistance to the BIAs indicates
a useful way to protect the International Criminal Court from the threat of the
US in the future. The EU Common Position in the ICC is generated by the very
nature of the EU as a community of states claiming common values and willing to
defend those collectively. Tough elusive, this factor has been particularly
apparent at the time of the ASPA/BIAs crisis. The fact that EU Member States
finally opted for a common approach has proven that such move has lowered the
costs of resistance to the US and heightened those of internal EU dissent. The
three amendments of Universal Jurisdiction in Belgium reveals the significance
of the Common Position as a tool for the protection of ICC form the opposite
angle.

Finally, the failure of the Belgian Universal
Jurisdiction and the resolution of the ASPA/BIAs crisis indicate the
significant role of the ICC, as a multilateral, legal-based international
organization, in protecting and promoting the international human rights.

Overall, from the two case studies about EU-US dispute
over ICC, we could estimate that there are two main challenges to the future
development of the ICC. The first challenge is from the US and the second
challenge might from the EU internal disputes. In the shaping of the new
International Criminal Law, the unification of the Member States of the EU is
crucial for overcoming the difficulties. Only when the EU Member States are
unified, EU can reinforce its self-identification in order to confront the
United States’ challenges.