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Tajikistan: Article 98 Accord With Washington Seen As Another Setback For International Criminal Court

Tajikistan this week became the fourth country to accede to Washington's request to sign a so-called Article 98 agreement. The accord would exempt U.S. troops in Tajikistan from possible prosecution by the new International Criminal Court. ICC supporters deplore such deals, saying they undercut the work of the court -- the world community's most serious attempt to deal with war crimes and genocide.

Prague, 30 August 2002 (RFE/RL) -- The U.S. State Department announced this week that Tajikistan has signed an agreement that will grant immunity to any U.S. troops serving there from potential prosecution by the newly created International Criminal Court, or ICC, in The Hague. The ICC is the world's first permanent tribunal to prosecute genocide and other egregious war crimes.

The move brings to four the number of countries that have concluded so-called Article 98 agreements with Washington. The others are Romania, Israel, and East Timor. Only two of the four countries, Romania and Tajikistan, are parties to the Rome Statute of the International Criminal Court.

Professor Ahmed Ziauddin is a founding member and adviser of the Bangladesh-based Asian Network for the ICC. He told RFE/RL that the Article 98 agreement with Tajikistan could handicap the ICC in its quest to expand the number of countries in the region to ratify the Rome Statute. "Our worry is that in Asia, not many countries have signed and ratified the Rome Statute. And Tajikistan is the only country in Central Asia that has ratified it so far. So it certainly will have a negative impact on those countries which already have ratified, [as well as] the countries that are thinking seriously about it," Ziauddin said.

Uzbekistan and Kyrgyzstan are Rome Statute signatories but have not yet ratified it. Turkmenistan and Kazakhstan have not signed the statute.

The U.S. began its diplomatic drive to conclude bilateral immunity deals with countries after the ICC formally came into being in July. Washington argues that the ICC might someday be used as a tool to target U.S. military personnel for political reasons. It has warned that it may withdraw military aid to countries that do not sign Article 98 accords.

The United Nations Security Council agreed to give U.S. peacekeepers a one-year exemption from prosecution by the ICC. But the U.S. still wants states to sign bilateral accords under Article 98 of the Rome Statute, which it says does allow countries to negotiate for separate immunity for their forces.

Supporters of the ICC deplore what they see as U.S. pressure on countries to sign such deals. The U.S. has come under criticism for what is perceived as quid pro quo agreements, in which Washington would support, for example, NATO membership for Romania or further U.S. aid for Central Asian countries in return for signing Article 98 agreements. "That's what we are worried about because many of these states have got good military relationships [with the U.S.]. And these countries are usually not in a position to withstand any suggestion of withdrawal of U.S. support, of U.S. military support in particular," Ziauddin said.

The U.S. has developed closer relations with many Central Asian states as part of the international war against terrorism. U.S. economic and military assistance to these states has dramatically increased.

Ziauddin noted the Central Asian states need foreign assistance to build up their defense structures so they are able to deal the threats they are facing. "There is no really easy answer to that [situation] because we cannot suggest that the countries [don't sign Article 98 agreements because their] military interests would be put at risk, if that is the case. And that's why we are appealing to the U.S.'s good sense. They should not be doing these kinds of things [because] it certainly is against American interests," Ziauddin said.

A Tajik Foreign Ministry official contacted by RFE/RL said that Dushanbe would have no official comment on signing the Article 98 agreement with the U.S.

According to the New York-based Human Rights Watch (HRW), Article 98 of the Rome Statute was premised on the ICC's ability to take jurisdiction of a case should it find that an investigation or prosecution was not conducted in good faith.

HRW says that because the administration of U.S. President George W. Bush refuses to cooperate with the court and rejects that oversight function, the Dushanbe government and others would violate their treaty obligations if they surrender American suspects to the U.S.

Lotte Leicht is the director of Human Rights Watch in Brussels. "They are not in conformity with the ICC's Article 98-2 that actually provides the possibility for signing agreements for the purpose of, what you could say, directing the routing of nationals of those countries that are state parties to the ICC -- basically reinforcing the ICC principle of national courts having first choice. The problem here is that the United States is not a state party to the ICC. And on top of that, it is a country that both in actions and in statements has gone out of its way to make it abundantly clear that it will in no way cooperate with the ICC," Leicht said.

But Colin Warbrick, a professor of law at the University of Durham in the U.K., told RFE/RL that he believes Article 98 does allow such bilateral agreements. "The statute allows these kinds of agreements to have legal consequences for the court. I think it's undesirable, but I don't think it's unlawful or something politically reprehensible. [The U.S. is] a state taking advantage of an opportunity given to it by other states. And the states didn't have to agree to this provision to go in the statute, but they did," Warbrick said.

According to Warbrick, such agreements take priority over cooperation obligations with the court. In practice, he noted, Tajikistan does not have the obligation to return to the ICC a U.S. national detained in Tajikistan.

There is, however, a degree of obscurity, Warbrick said, and a lot depends on the details of the agreements. "It's a very interesting and complicated question as to what precisely Tajikistan's obligations are in those cases. Whether, for instance, it has to be sure that there will be a trial somewhere or at least an investigation into the alleged offenses either in the United States or in Tajikistan itself," Warbrick said.

HRW's Leicht urges governments to take the time to analyze the political and legal consequences of Article 98 agreements. In that sense, Leicht said, the European Union -- whose 15 members have ratified the Rome Statute -- can play an important leadership role for smaller countries that are not in a position to stand up to the U.S.

The European Commission stated earlier that signatories to the ICC would violate the Rome Statute if they signed bilateral accords with the U.S. At a meeting starting today in Denmark, the 15 EU foreign ministers are expected to discuss a common policy on the ICC. The issue will be further discussed at a meeting of EU legal experts next week.

Some diplomats argue that member states, not the European Commission, should have the final word on how the accords should be legally interpreted.