Setting America above the Law

Although Egypt was neither the first nor the only country to sign a bilateral agreement granting US officials immunity from prosecution by the International Criminal Court (ICC), Cairo's decision took many by surprise. For starters, Egypt was one of the countries actively involved in the 1998 negotiations that led to the drafting of the Rome Statute establishing the ICC. Since signing on to the treaty in December 2000 however, Egypt has delayed presenting it to the People's Assembly for ratification.

The revelation, two weeks ago, that Egypt had signed a bilateral agreement -- called Non-Surrender Article 98 -- with the US stipulating that neither of the two countries bring the other's officials or military personnel to the court for war crimes and crimes against humanity, came as a shock to some, and a disappointment to many.

"Egypt has not ratified the ICC agreement," Foreign Minister Ahmed Maher said on 3 July, and was thus not in contradiction of any of its legal obligations. Furthermore, said Maher, by way of defending Egypt's decision, the agreement is "reciprocal".

Diplomatic sources explained that the decision to abandon the ICC came after the treaty's drafters refused to include aggression and terrorism-related crimes in the court's jurisdiction. Cairo also wanted the Security Council to have more leeway when it came to placing a case in front of the court, sources said.

Since the court came into force in July 2002, Washington has been actively seeking to sign bilateral immunity agreements with numerous countries. It has threatened countries that refuse to do so with the scaling down of military assistance. 1 July marked the implementation of the American Service Members' Protection Act (ASPA). Passed by the United States Congress last year, the bill stipulates restricting military assistance to countries who are signatories to the ICC but who have not agreed to sign the immunity agreements. Thirty-five countries have not met the deadline.

Since most military aid for this fiscal year has already been allocated, only $47.6 million in aid and $613,000 in military education programmes would be lost to the 35 countries, a figure that would be much larger for 2004. The list includes nations from around the world, primarily Latin America, Africa and Eastern Europe. Perhaps the most important ally on the list, Colombia, is the third biggest recipient of US aid after Israel and Egypt, using its mixed package of $1 billion a year to combat a guerrilla insurgency and to fight the "War on Drugs". If it still has not acceded to American demands, Colombia alone could lose about $112 million in military aid in the fiscal year 2004.

The law, however, specifically exempts 27 states from the threat to cut military aid. These include 18 members of NATO as well as Israel and Egypt. The two countries, nonetheless, have signed bilateral agreements with the US. ASPA also gives the American president the right to waive the prohibitions where he deems it is in the American national interest to do so.

To date, over 50 countries have signed bilateral agreements with the US; 45 have been made public, while at least seven other countries have chosen to keep their agreements in the dark.

Many prominent Egyptian voices have attacked the government's decision. "In defending the Egyptian position some commentators have argued that... American soldiers are unlikely to commit such crimes [war crimes and crimes against humanity] in Egypt on a scale worthy of prosecution," wrote Al-Ahram columnist Salama Ahmed Salama. "The issue, though, is not about what American soldiers may or may not do on Egyptian soil; rather, it is a question of establishing an international judicial order, which in light of the crimes perpetrated by Israel against humanity should be a major regional priority."

By signing this agreement, said Abdallah El-Ashaal, Egyptian assistant foreign minister for legal affairs, "Egypt is helping the US increase the space of exceptions it has created for itself from international justice."

International lawyers and figures have also condemned the recent US decision to cut military aid. "Whatever the administration thinks of the ICC, its tactics in pursuing these bilateral agreements are unconscionable. Other governments can plainly see that punitive measures are being used primarily against poor and relatively weak states with few options other than to give in to the United States," said Kenneth Roth, executive director of Human Rights Watch.

The US, however, says it fears for its soldiers stationed around the world, who could be prosecuted with politically motivated charges. "This is a reflection of the United States's priorities to protect the men and women in our military – the men and women who serve," former White House Spokesman Ari Fleischer said on 1 July. "These are the people who are able to deliver assistance to the various states around the world. And if delivering aid to those states endangers America's servicemen and servicewomen, the president's first priority is the servicemen and servicewomen."

But a number of international lawyers and experts argue that these claims are baseless. Many point to the numerous safeguards in the Rome Statute that were installed to insure that politically motivated cases steer clear from the court. "No one really believes that Moreno Ocampo (an Argentine national who was recently sworn in as the court's chief prosecutor) is likely to indulge in unwarranted prosecutions of American citizens," says Richard Dicker, director of the International Justice Programme at Human Rights Watch. "It's really time for the Bush administration to wake up from its own nightmarish delirium."

Since July 2002, the US has repeatedly tried to undermine the court. Arising from the necessity of trying war criminals and based on the Nuremberg and Tokyo tribunals, the ICC is the first permanent court to try war crimes and crimes against humanity. In theory, the court can only hear cases in two instances -- if the individuals concerned are from states that signed the 1998 Rome Statute or if the Security Council refers a case to it. However, a state can request that a particular soldier -- American or from another non-signatory nation -- be tried at the ICC if it is believed the soldier committed crimes against humanity on its territory. Ninety states have thus far ratified the Rome Statute.

The US has resorted to several tactics in efforts to undermine the court. Last year, it began its battle by passing the ASPA and actively pursuing bilateral agreements with states. Earlier last month the US went to the UN Security Council to renew a resolution granting its peace-keepers immunity from prosecution by the court. In other instances, the US has tried to force states to not ratify the Rome Statute, as in the case of the Philippines and Georgia (both nations host American soldiers as part of the 'War on Terror'). US President George W Bush also signed a bill into law last year giving him the broad mandate to use "all means necessary and appropriate" to free American soldiers held by the court.

Many international lawyers have said the Article 98 agreements are illegal. Article 98 settles any discrepancies between a state party's obligations towards the court and its previous legal obligations. In a case where one state already has an extradition agreement with another state, then its extradition agreement overrides its obligations to the court.

According to some of these critics, the article was not meant to be applied the way the US is using it right now. "The US is misusing the article," insisted Nasser Amin, the regional coordinator of the Coalition for an International Criminal Court (an international NGO supporting the court's work). "The crafters never intended it to be used this way," Amin told Al- Ahram Weekly.

Amin was part of the delegations present at the crafting of the Statute. Article 98, he argues, was not meant to cover new agreements, but to protect existing agreements.

US efforts to sideline the ICC are seen by many as manifestations of its post-9/11 foreign policies. "There's a militarisation of American foreign policy which is a living reflection of the belief that military might overrides all other sources of power," says El-Ashaal. "Other sources of power -- diplomatic, cultural, economic -- all of these take time. But military power yields immediate results. Just like a bully. You pay or get killed," he told the Weekly.

Out of the 45 bilateral agreements signed with the US, only four have been ratified. Some analysts believe that these agreements could be shut down once they are confronted with the democratic accountability of these states' legislatures.

It is yet to be seen if this will be the case in Egypt. Last week, however, an MP submitted an interpellation for Maher to answer regarding the agreement.

Columnist Salama's questions perfectly summarise the matter as well: "Where is Egypt's national interest in this?" he wrote. "No one knows and no one is telling."