Elsinor, 02/09/2002 (Agence Europe) - European Ministers of Foreign Affairs confirmed their wishes to reach a common position on the exemptions requested by the USA to protect its nations from the jurisdiction of the International Criminal Court. "We want to ensure that the Court is not weakened and at the same time, we want to find a response to US worries", declared the President of the council, Per Stig Moeller at the informal Gymnich meeting at Elsinor on the weekend.
The General Affairs Council is expected to adopt a common position by 30 September on the basis of an experts' report that should be submitted on 4 September to the International Law Committee's working group.
Meanwhile, the European Union and USA are expected to bring up the question in mid-September during the fringe meeting of the General Assembly of the United Nations in New York.
The objective of the meeting was to calm things down after the Summer heat, pointed out Christina Gallach, CFSP spokesperson for Javier Solana. The Americans are the first in the firing line, because of their role as superpower and their position should therefore not be ignored, commented diplomats during a Gymnich fringe meeting. "We understand US worries and that's why in a spirit of construction, we are looking for a pragmatic solution", was how the French Minister, Dominique de Villepin, summed up the situation.
In an aside, some diplomats pointed out that there is little chance that the Americans are taken to Court, but the American political class appears to be overwhelmed by a kind of "Kissinger syndrome", which can be interpreted as a US fear of proceedings from everywhere past and present".
This week, experts from Member States are expected to give their opinions on the compatibility of the statutes of the Court with bilateral agreements with the USA. While they are not in agreement on the International Court, in force since July, the USA has requested that signatory countries conclude bilateral agreements with them, which will protect their nationals against Court jurisdiction. Up till now, only Israel, Romania and East Timor have signed such agreements.
Switzerland and Norway have refused. At the beginning of the month, the European Commission protested to Romania, considering that the country had distanced itself from the EU common position on the ICC and supported by candidate countries.
AT Elsinor, both Italy and the United Kingdom did not rule out signing such agreements with the USA. Italian Prime Minister and Minister for Foreign Affairs, Silvio Berlusconi, believed that in the measure of the Treaty of Rome setting up the International Criminal Court had been signed by individual Member States, "every country could decided by themselves whether to sign a possible agreement (with the USA". He did, nevertheless, assure his counterparts that Italy would wait for the adoption of a common agreement before taking a decision.
The French Foreign Minister, Dominique de Villepin, stressed that France had a seven-year dispensation to protect it from any proceedings against its military personnel during peace keeping operations, which it had done within the framework of Article 124 of the Convention of Rome.
This Article had to be re-drafted at the request of the USA before the USA decided to withdraw from any agreement on the Court. If the USA wants to use this clause, they can do on the condition that they first approve the text, explained the French Minister.
Germany was quite clear in coming out against the kind of conclusion of agreements supported by Washington. The German Foreign Affairs Minister, Gunter Pleuger, explained to the press that these kind of agreements undermined the very foundations of the Court.
Commission legal services gave a negative recommendation in a note distributed by the press during the summer, which the College of Commissioners did not approve. The College believes that Article 98 of the Treaty of Rome (setting up the Court) does not allow for dispensation agreements between countries that are not signatory to the Treaty.
This Article sets out that proceedings by the Court could be carried out by the country that has sent its nationals into another country and not by the host country. Those suspected of crimes against humanity are therefore pursued, after all. Commission legal experts also pointed out that in certain cases where countries are not signatories to the Court statute, this guarantee did not apply. If this is the case, the very foundations of the Court, which is to prevent the perpetrator of a crime against humanity escaping from justice, is undermined.
Amnesty International has sent out a legal recommendation on the Internet (http://www.amnesty-eu.org ) that reaches the same conclusions: the agreements requested by the USA are both in breach of the spirit and the rules of the statute of Rome. Based on the example of the agreements signed between Countries of origin and host countries for sending peace-keeping forces ("statute of forces agreement"), Article 98 of the Court places responsibility for carrying out proceedings with the country of origin.
On the other and, the agreements demanded by the USA, "only include enquiries or proceedings carried out by the USA or other country, and therefore breach the obligations of Treaty signatories", underlined Amnesty in a press statement.