Article 98 Agreements — Japan and Montenegro

by Kevin Jon Heller

Last week, I noted that Japan will become a member the ICC in October. Interestingly, the Japanese government has indicated that it will not consider signing an Article 98 agreement with the U.S. after accession. That refusal will not have much practical effect, although there are approximately 50,000 U.S. soldiers on Japanese territory, more than half of whom are stationed on Okinawa. Nevertheless, it should be interesting to see what the Bush administration’s reaction will be, given Japan’s symbolic importance to the ICC and Shinzo Abe’s open desire to form a closer military alliance with the U.S.

Indeed, the Bush administration continues to push for Article 98 agreements. Last month, the U.S. entered into an agreement with Montenegro, a move that — according to Condoleeza Rice — “establishes a basis for United States military personnel to operate in Montenegro for mutually agreed activities.” The Article 98 agreement will almost certainly worsen relations between the U.S. and Russia, which is already concerned with the Bush administration’s desire to construct an anti-missile defense system in Poland and the Czech Republic. (See Julian’s post here.)

Interestingly, neither the Czech Republic nor Poland have been willing to sign Article 98 agreements — unwillingness that John Bolton savagely criticized in 2005 when he was Under Secretary for Arms Control and International Security. I know nothing about the physical requirements of the ballistic-missile system, but I can’t help but wonder if the U.S. would consider relocating the system to Montenegro and/or its neighbors Albania or Bosnia-Herzegovina (which have also signed Article 98 agreements) if the Czech Republic and Poland do not start singing a different tune soon.

9 Responses

  1. How can a BIA affect US troops on Japanese territory?

  2. From former Yugoslav republics, Macedonia, Bosnia and Herzegovina, and recently Montenegro on 19 April signed Article 98 agreements with United States, whereas Slovenia and Croatia refused to sign such agreements some years ago. Macedonia, Bosnia and Herzegovina, and Montenegro were in no position to refuse signature and risk potential withdrawal of American military and economic aid. As long as situation in south-eastern Europe remains fragile, it is unlikely that United States would consider relocating ballistic-missile systems to Montenegro or elsewhere in the region.

  3. Once Japan formally accedes to the Rome Statute, the ICC will have automatic jurisdiction over any serious international crime committed on Japanese territory regardless of the nationality of the perpetrator. So if a US soldier were to commit a war crime, crime against humanity, or act of genocide on Japanese territory — an unlikely possibility, to be sure — the ICC would be able to prosecute that soldier notwithstanding the US’s opposition to the Court. An Article 98 agreement, however, would require Japan to refuse to turn the soldier over to the ICC despite its jurisdiction over him, thereby preventing the prosecution from going forward.

  4. Kevin,

    They way I understood the ICC to work was under the principle of complimentarity; meaning that the ICC holds jurisidiction if a country asks it to or is lacking a judicial system. I thought one of the reason for US opposition to the ICC was its use of the courts martial. If US citizen committed crimes against humanity on Japanese territory, he/she would be held accountable according to the UCMJ et al. Would’t the Japanese have to capture and detain a US soldier and then hand that solder over to the ICC?

    I never took jurisdictional measures to be of weight with international systems regarding nations such as the US or Japan. In cases such as FRY, for example, the country is restructuring and has a standing government that both needs and seeks out a body such as the ICC. If the case of the US and Japan, it seems highly unlikely that any violations of the laws of war require the ICC to intervene.

    Someone please clarify.

  5. Daniel,

    The ICC is based on the principle of complementarity, but the Court can assert jurisdiction if a country is not only unable to investigate and/or prosecute a case itself, but also if it “unwilling” to do so. So although the U.S. could in theory divest the ICC of jurisdiction over any case involving a U.S. national, it would have to satisfy the Court that it was genuinely willing to investigate and prosecute the case itself — under the Rome Statute, the ICC, not the country claiming jurisdiction, has the final say concerning whether complementarity applies. And although I don’t have time to get into all the details here, if the U.S.’s past practices regarding war crimes and crimes against humanity committed by U.S. forces in Iraq and at GITMO are any indication, I think it is highly unlikely that the ICC would conclude that the U.S. is “willing” to investigate and prosecute those crimes. Indeed, the simple fact that the U.S. has not incorporated the Rome Statute’s substantive law into its domestic. law may be enough for the Court to conclude that complementarity doesn’t apply.

    All of this is to explain why the U.S. feels that Article 98 agreements are so important: if the other country does not hand the U.S. national over to the ICC, complementarity will never be an issue.

    I hope this too quick and too brief explanation helps.

  6. Mr Heller is right on the mark. The ICC’s capability to charge US citizens even if the US judicial system feels the accusations are without merit is the primary reason the US did not opt to join the court (and most likely never will, even under Democratic rule.)

  7. Mr. Heller and others,

    Has anyone actually been able to confirm that the agreement signed between the US and Montenegro was in fact an “Art. 98(2) agreement”? The reports I have seen list the agreement as a SOFA agreement.

    The difference between Art. 98(2) and SOFA is one of scope. While both relate to the ICC via Art. 98(2), the former term is used by the Administration to refer to exemptions that include civilian personnel. SOFAs are very widespread (I believe Japan has already signed one, for instance), and most nations agree that SOFAs can be signed without violating the spirit of the ICC–the EU common position in 2002 said as much. The US has sought to negotiate “98(2) agreements” (their term) to also exempt civilian US nationals, which includes military contractors not covered by SOFAs (David Scheffer has a 2005 article that explains this).

  8. In addition,

    Mr. Gross is also not correct because he misunderstands the “preconditions” of jurisdiction under Article 12 of the ICC Statue. If a US national was detained by an ICC state for an accused crime committed in that state, the ICC jurisdiction claims to be able to try him. This is a major source of contention, obviously, and really is simply an unresolved point of law.

    Under commonly understood international law, the ICC country would be able to try the US national in a domestic court–the so-called territorial principle (see the Lotus case). However, the question is whether a state can delegate its jurisdiction to an international court to which the national state is not party. ICC proponents say yes, the US says no. There are good cases to be made by both sides, and it’s simply not clear what the answer is. I would suggest that SC Res. 1593 (sending Sudan to the ICC) probably suggests that the ICC position will prevail, but we’re not quite there yet.

  9. (cont.) I think that this was the major objection to the US. Complementarity was never really an issue, from what David Scheffer has accounted (see his 1999 AJIL article and his 2005 JICJ article). As we’ve seen from Mr. O’Campo’s statement about complementarity in regards to the UK and the Iraq campaign, the Court’s been very liberal in its understanding of complementarity.

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