The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements

Abstract

This paper deals with two issues. First, Security Council Resolution 1422 (2002) whereby the Council requested the International Criminal Court (ICC) to suspend investigations and prosecutions concerning personnel of UN authorized or established operations belonging to States not Parties to the ICC Statute. It is argued that this resolution is grounded more in the ICC Statute than in the UN Charter; thus, it will be for the Court to interpret and determine its scope in light of the provisions of the Statute. Second, the paper discusses agreements proposed by the US based on Article 98 ICC Statute. Under these agreements an ICC State Party would be bound to obtain US consent in order to transfer an American national to the Court. It is submitted that these Agreements, as currently drafted, are incompatible with the Statute. Although, certain conditions (such as the duty of the ICC State Party to ensure that the alleged perpetrators of international crimes do not go unpunished) may be considered as implicit in agreements already made by States Parties with the US, new agreements should expressly provide for a specific obligation for the US to investigate and prosecute in the event of the other contracting party deciding not to prosecute the American national. If the US decides that prosecution is unnecessary, it should be required to give a detailed explanation to the other contracting State. Alternatively, such agreements should provide for a mechanism whereby the transfer to the US of Americans detained by the ICC State Party may only be effected with the authorization of the Court.