US-East Timor agreement on ICC Article 98 detrimental to the protection of human rights
SUARA No 3/02, October 2002
by Anett Keller
In September 2002, East Timor was the 79th state to ratify the Rome Statute of the International Criminal Court. However, before the ratification the East Timorese leadership had already signed a bilateral agreement which exempts US citizens from the applicability of several clauses of the Statute.
Rome Statute Logo
„East Timor is uniquely placed to recognize the importance of an International Criminal Court. (…) We are resolute in our conviction that lasting peace can only be bought with effective justice. By acceding to the Rome Statute we undertake to strive ensuring that justice is available to all.”
These words are part of the declaration, which East Timor gave on September 9th before the Constituent Assembly of the International Criminal Court (henceforth ICC) in New York. Three days earlier the government had solemnly proclaimed that it intended to ratify the Rome Statute as the 79th state.
Two weeks earlier, however, East Timor had followed in Israel’s and Rumania’s footsteps and signed a bilateral agreement with the US, the purpose of which is to protect US citizens from international prosecution. On August 23rd, Shari Villarosa, US ambassador in Dili, and the East Timorese Minister of Foreign Affairs, José Ramos Horta, had established facts by signing the US-ET agreement on ICC Article 98. Crucial clauses of the Agreement read: Persons of one Party present in the territory of the other shall not, absent the expressed consent of the first Party, (a) be surrendered or transferred by any means to the International Criminal Court for any purpose, or (b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to the International Criminal Court.
Understandably, human rights organisations were shocked. East Timor of all states, whose people had suffered for decades from human rights violations perpetrated by the Indonesian military and co-financed by the US, had nothing more pressing on her mind than to rush ahead and comply with George W. Bush’s wishes. „When joining the court, East Timor affirmed its commitment to human rights and universal justice. Now, with the stroke of a pen, the East Timorese government has undermined these principles,“ said John Miller of the East Timor Network (ETAN). For Miller it was obvious that US pressure had led to this decision: In June, Washington had threatened not to replace three UNMISET (UN Mission for East Timor) members whose time had been up, in the event that US citizens be subject to ICC jurisdiction. „Recently, the U.S. has used the UN peacekeeping mission in East Timor as a bargaining chip in its campaign to undermine the ICC”, Miller remarked. /ETAN: Rights Group „Deeply Disturbed“ by East Timor’s Grant of Immunity to U.S. Troops, August 27, 2002/
Before the US opted for agreements with individual states, she had already successfully managed to push through her interest within the UN framework: After weeks of tough deliberations and the very effective threat by George W. Bush that the US would otherwise no longer take part in UN missions, the United Nations subdued to the pressure and granted the United States and all other states, which had not ratified the Rome Statute, immunity from ICC rulings for twelve months. This sad capitulation will be remembered as Resolution 1422 concerning the International Criminal Court. With the coming into effect of the Statute as of July 1st, 2002, this twelve months period of impunity is valid – a carte blanche for states like the United States, Israel, Russia and China, which, by the way, may be extended annually. But as Resolution 1422 only grants immunity to members of UN missions, the United States still try to protect ‘their guys’ by way of bilateral agreements.
Since August, Amnesty International and Human Rights Watch had issued warnings concerning these US efforts. According to analyses by the human rights organisations, these so-called Article 98 Agreements violate provisions of the Rome Statute and may thus not be concluded by State Parties to the Statute. This explains why the US had been in such a hurry to obtain East Timor’s consent. There are types of bilateral Article 98 Agreements: The first two are concerned with extradition to the ICC. The third, however, is further reaching as it prohibits signatory states also the extradition to ‘third states’ that co-operate with the ICC. Note that East Timor is the only state that has signed the latter type of agreement.
As not even the UN managed to withstand US pressure, it does not surprise that also East Timor bowed to the Bush administration’s wishes. The United States are the largest donor country for the youngest member of the international community, which as one of the poorest nations is in dire need of international aid and investment. The US mission is one of the very few in existence there. Since 1999 East Timor has received approximately 25 million US$ annually in development aid from the United States. And with a contribution of 200 million US$, the United States provide about a quarter of the UNTAET (UN Transitional Administration for East Timor) budget. /La’o Hamutuk, The East Timor Institute for Reconstruction Monitoring and Analysis, Vol. 3, No. 2-3, April 2002/. According to diplomatic sources in New York, the US had engaged in some ‘special coaching’ during the weeks preceding East Timor’s signature to the bilateral agreement. – The threat to reduce reconstruction aid has surely been effective…
Speculations are still abounding that Bush plans to use the island as a military base for troop deployment. Perhaps these issues will be on the agenda when Xanana Gusmão meets George W. Bush in New York at the beginning of October. Already before his visit Gusmão had announced he would take care not to utter the word Iraq. „As a very small country, we would not like to stand on the fingers of (President Bush),“ Gusmão let it be known in advance. „We will just concentrate on our priorities.“ /Reuters: Tiny East Timor decides against advising Bush on Iraq, Wellington, Sept 19, 2002/
However, before the meeting with Bush the inaugural visit of the UN headquarter is on the agenda. On September 29th, East Timor had been admitted as the 191st member state of the United Nations. But as the East Timorese government neither wants to tread on the international community’s toes, the bilateral agreement has so far been signed, but not yet been ratified by East Timor. Already in the speech before the ICC Constituent Assembly, the representative of East Timor had pointed out: ”I would like to make it clear that, contrary to reports, the process has not reached any conclusion. As with all other international agreements, under the Constitution of East Timor, this agreement requires both Parliamentary approval and Presidential promulgation before it can come into force. Neither of these have been received to date.” This may have been a clever move by the tiny East Timor. That one can back off from an already signed agreement, the big US has only recently demonstrated – Kyoto may be recalled. <>
