August 29, 2002
By John C. Hulsman and Brett D. Schaefer
About two months ago, the United States and the European Union
were locked in a showdown over the International Criminal Court
(ICC). The Court was scheduled to come into being on July 1,
despite U.S. objections to its claims of universal jurisdiction --
even over the citizens of nations that haven't ratified it.
U.S. officials correctly pointed out that "universal
jurisdiction" violates one of the bedrock principles of
international law -- that nations can't be bound by treaties they
haven't endorsed. So they vowed to veto renewal of U.N.
peacekeeping operations unless the Security Council agreed to grant
peacekeepers "immunity from [ICC] arrest, detention and
prosecution," although they could still be investigated and
prosecuted in their native countries. This would have provided
protection for U.S. participation in U.N. peacekeeping
Led by the European Union, other nations objected, arguing that
the ICC already contained ample protections and that such immunity
would unduly weaken the court. Instead of seeking immunity, they
said, the United States should negotiate "Article 98" agreements
(named after a provision in the ICC charter) with individual
nations to prevent the transfer of American citizens to the
"So we took that advice, and that's exactly what we are doing,"
U.S. Undersecretary of State for Political Affairs Marc Grossman
said. In the interests of trans-Atlantic relations, the United
States agreed to pursue this strategy after securing a one-year
immunity for U.N. peacekeepers on July 12.
Crisis averted until next year, right? Wrong.
After the U.S. successfully negotiated its first "Article 98"
agreements with Israel and Romania (an aspiring member of the
European Union), an EU spokesman expressed regret over the
agreements. Going the "Article 98" route was, he said, a "bad
political signal." Moreover, the EU urged the 10 nations aspiring
to EU membership in 2004 not to sign similar agreements until EU
bureaucrats in Brussels had an opportunity to assess the
consequences of such agreements.
"It doesn't make any sense for someone who wants to join a club
not to abide by the rules of that club," he said. This makes it
sound as if the EU had a common foreign policy, which is certainly
a fiction, and that the rules don't permit EU members to negotiate
agreements with other free, law-abiding nations.
The bottom line, though, is this: The European Union told the
United States to seek protection through provisions outlined in
Article 98 of the Court's charter. Then it told nations aspiring to
EU membership to avoid signing such agreements with the United
States, implying that it could harm their chances to join.
In addition to this duplicity, there's more than a little
hypocrisy at work here. Prior to sending troops to Afghanistan,
European nations themselves negotiated an Article 98 agreement with
the Afghan interim government.
Regardless of its public statements, the EU is clearly trying to
force the United States to abide by a treaty it hasn't ratified and
to which it has explicitly voiced its opposition.
But just as America respects the right of other nations to join
the ICC, other nations should respect our decision not to become
party to a document the Bush administration deems counter to U.S.
national interests. Pressuring EU candidate nations to adopt a
position taken by unelected EU bureaucrats -- who may or may not
have their interests at heart -- is clearly detrimental to the
Worse, it calls into question the respect of European Union
officials for the sovereignty of its member states and democratic
principles in general. Talk about a "bad political signal."
Hulsman is research fellow for European affairs in the
Davis Institute for International Studies at The Heritage
Foundation. Brett D.
Schaefer is the Jay Kingham fellow in international regulatory
affairs in Heritage's Center for International Trade and
Distributed nationally on the Knight-Ridder Tribune wire
Dealing with EU Doublespeak
John C. Hulsman
Read More >>
Brett D. Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
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