East Central Europe: Status of International Criminal Court (ICC) Exemption Agreements and U.S. Military Assistance

East Central Europe: Status of International Criminal Court (ICC) Exemption Agreements and U.S. Military Assistance

Order Code RS21612
Updated November 25, 2003
CRS Report for Congress
Received through the CRS Web
East Central Europe: Status of International
Criminal Court (ICC) Exemption Agreements
and U.S. Military Assistance
name redacted
Specialist in International Relations
Foreign Affairs, Defense, and Trade Division
Summary
In a broad effort to obtain U.S. exemptions from International Criminal Court
(ICC) jurisdiction, the Bush Administration has sought to conclude bilateral agreements
worldwide that would prohibit the transfer of U.S. citizens to the ICC. The European
Union has strongly promoted the ICC and is opposed to the U.S.- proposed agreements.
This report addresses twelve countries of east central Europe affected by the U.S. and
European policies – Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Estonia, Latvia,
Lithuania, the former Yugoslav Republic of Macedonia, Romania, Serbia and
Montenegro, Slovakia, and Slovenia – and the status of their varied approaches to the
transatlantic disagreement over the ICC. Many in this group are in the process of
joining NATO and the European Union by mid-2004. Legislative prohibitions on U.S.
military assistance to non-allied ICC parties went into effect in July 2003. However,
President Bush has partially waived the prohibition’s application to seven countries set
to join NATO in 2004. Related CRS reports include CRS Report RL31495, U.S. Policy
Regarding the International Criminal Court, and The International Criminal Court and
U.S. Military Assistance (in the CRS Foreign Operations Appropriations Electronic
Briefing Book at [http://www.congress.gov/brbk/html/apfor40.html]). This report may
be updated as necessary.
Introduction
In July 2002, the Rome Statute that established the International Criminal Court
(ICC) came into force and officially launched the first permanent world court with
jurisdiction to try individuals for war crimes and other serious human rights abuses.1 The
United States has objected to elements of the Court’s Statute and has sought to conclude
bilateral agreements with most countries of the world to exempt U.S. citizens from
1 For more information on the ICC, see CRS Report RL31495, U.S. Policy Regarding the
International Criminal Court.
Congressional Research Service ˜ The Library of Congress

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possible surrender to the ICC. These so-called “Article 98 agreements” are named after
Article 98 (2) of the Rome Statute, which bars the ICC from requesting a surrender from
a state that would require it to violate its international obligations. In accordance with a
U.S. law (P.L. 107-206) to restrict cooperation with the ICC, the Bush Administration
suspended U.S. military assistance to certain ICC ratifying states, effective July 1, 2003.
Policy regarding the ICC is one of several issues in dispute between the United States and
many European powers.
This report addresses twelve countries of east central Europe affected by the U.S. and
European policies – Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Estonia, Latvia,
Lithuania, the former Yugoslav Republic of Macedonia,2 Romania, Serbia and
Montenegro, Slovakia, and Slovenia – and their varied approaches to the situation arising
from the transatlantic disagreement over the ICC. All are parties to the ICC’s Rome
Treaty. All wish to maintain close relations with both the United States and the EU; many
view the United State to be a key guarantor of their security, and all aspire to join the EU
in the near or intermediate future. With respect to the ICC exemption issue, three groups
of countries from the region have emerged thus far: those that have concluded exemption
agreements with the United States (Albania, Bosnia, Macedonia, and Romania); those
that are expected to accede to the EU and NATO by mid-2004 (Estonia, Latvia, Lithuania,
Slovakia, and Slovenia, with Bulgaria and Romania expected to join the EU at a later
date) and have not (except for Romania) entered into such agreements with the United
States; and those (Croatia, and Serbia and Montenegro) that are neither signatories to an
Article 98 agreement nor on the short list for EU or NATO membership.
U.S. Policy
The United States is not a party to the International Criminal Court and does not
recognize ICC jurisdiction over U.S. citizens. Undersecretary of State John Bolton has
asserted that the Court runs “contrary to fundamental American principles” and has
“unacceptable consequences” for national sovereignty.3 As stated in the 2002 National
Security Strategy of the United States, the Bush Administration has pledged to “work
together with other nations to avoid complications in our military operations and
cooperation, through such mechanisms as multilateral and bilateral agreements that will
protect U.S. nationals from the ICC.” Accordingly, the United States has sought immunity
provisions through the U.N. Security Council for U.N.-authorized peacekeeping
operations, and has pursued bilateral agreements with countries that are party to the ICC
to preclude extradition or surrender of U.S. citizens from each respective country to the
ICC. To date, the United States has reportedly concluded over 70 such agreements.4 U.S.
officials have emphasized that the Administration will continue its global campaign to
conclude additional agreements.
2 FYROM, referred to here as Macedonia for abbreviation purposes only.
3 Bolton’s address at the American Enterprise Institute, “American Justice and the ICC,”
November 4, 2003, is available at [www.aei.org].
4 According to the State Department, some countries which have signed Article 98 agreements
have asked not to be identified. The non-governmental Coalition for the International Criminal
Court maintains a list of Article 98 agreements at [www.iccnow.org].

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The National Security Strategy also included the pledge to “implement fully the
American Service Members Protection Act (ASPA, P.L. 107-206), which has provisions
intended to ensure and enhance the protection of U.S. personnel and officials.” Section
2007 of the Act prohibits the United States from providing military assistance, effective
July 1, 2003, to the government of a country that is a party to the International Criminal
Court (ICC) and does not sign an agreement to exempt Americans from ICC prosecution,
except for NATO countries and other major allies.5 On July 1, 2003, the Administration
suspended unallocated FY2003 funds for U.S. military assistance to 35 countries, totaling
about $48 million.6 The list of sanctioned countries included several from east central
Europe: Bulgaria, Croatia, Estonia, Latvia, Lithuania, Serbia and Montenegro, Slovakia,
and Slovenia. The ASPA grants the President authority to waive the restrictions on
military assistance on national interest grounds, and includes additional waiver provisions.
In consideration of their agreements concluded and ratified with the United States, the
President waived the prohibition with respect to Albania and Bosnia. He temporarily
waived the prohibition with respect to Romania and Macedonia to grant them time to
ratify their agreements.7 In November, the President waived the restrictions for Bulgaria,
Estonia, Latvia, Lithuania, Slovakia, and Slovenia on national interest grounds.
European Policy
Since 2001, the European Union has maintained a common position on the
International Criminal Court that strongly emphasizes the EU’s support for the Court’s
role in promoting respect for international humanitarian law. The EU has repeatedly
reiterated its commitment to give full support to the court and to preserve the integrity of
the Rome Statute. Countries acceding to and associated with the European Union claim
to have aligned themselves with the EU’s common position on the ICC.
With regard to bilateral agreements conditioning the surrender of persons to the ICC,
the EU issued guiding principles for such proposals in September 2002. They include the
principle that existing international agreements, including those regarding status of forces
and extradition, should be taken into account. Exemption agreements should not allow
persons who have committed crimes to enjoy total impunity from prosecution. They
should cover only persons “sent” to another country in an official capacity, as opposed to
blanket immunity for all citizens. They should not be reciprocal to allow nationals from
ICC signatory countries exemption from ICC prosecution. While the principles differed
somewhat from the U.S. approach, the EU refrained from calling for an outright ban of
exemption agreements.8 However, no EU member state has entered into such an
agreement with the United States to date.
5 ASPA; title II of P.L. 107-206, the FY2002 supplemental appropriation act. Major non-NATO
allies include Australia, Egypt, Israel, Japan, Jordan, Argentina, Korea, New Zealand, and
Taiwan.
6 The International Criminal Court and U.S. Military Assistance, in the CRS Foreign Operations
Appropriations Briefing Book, updated October 23, 2003.
7 Presidential Determination 2003-27, June 30, 2003; 2003-28, July 29, 2003; 2004-07,
November 1, 2003. Macedonia has since ratified its agreement.
8 Judy Dempsey, “EU ministers back off over criminal court,” Financial Times, October 1, 2002,
p. 12.

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European representatives have expressed regret at the signing of the exemption
agreements with the United States by Albania, Bosnia-Herzegovina, Macedonia, and
Romania. They assert that the agreements do not meet EU guidelines, are inconsistent
with the ICC Statute and international law, and should not be ratified. While the EU has
adhered to its common position on the exemption agreements, the issue did not appear to
interfere with the EU-western Balkans summit at Thessaloniki, Greece, in June 2003,
where the EU endorsed a regional strategy to promote the eventual integration of all of
the western Balkan states into the EU. Nevertheless, EU officials emphasize that future
EU candidate countries are expected to share the values and policy positions of the EU,
including with regard to the ICC.
Current Status
The following chart illustrates the current status of the twelve east central European
countries with respect to the Article 98 agreements, EU and NATO entry, and U.S.
military assistance (comprising the Foreign Military Financing and International Military
Education and Training accounts).
ICC
Art. 98
NATO EU association
FY03
FY04
party
agreement invitee
allocated
requested
(5/04)
military
military aid
/
Albania
05/02/03
SAPb
$8.8
$5.0
/
Bosnia
05/16/03
SAP
$3.3
$2.9
/
/
Bulgaria
--
EU candidate
$20.4
$9.9
/
Croatia
--
SAP
$6.2
$5.8
/
/
Estonia
--
acceding 5/04
$10.4
$7.5
/
/
Latvia
--
acceding 5/04
$10.1
$7.5
/
/
Lithuania
--
acceding 5/04
$11.6
$8.2
/
FYROM
06/30/03
SAP
$12.6
$10.7
/
/
Romania
08/01/02c
EU candidate
$26.4
$10.5
Serbia-
/
Mont
--
SAP
$0.9
$0.5
/
/
Slovakia
--
acceding 5/04
$15.5
$9.0
/
/
Slovenia
--
acceding 5/04
$5.0
$5.0
a estimates of combined FY03 regular and supplemental appropriations; only portions
unallocated by 7/1/03 were affected by the suspension for the rest of FY03.
b EU Stabilization and Association process for the western Balkan countries to promote
c not yet ratified.

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For the seven countries invited to join NATO in 2004, the prohibition under the
ASPA on U.S. military aid funds will no longer apply once they become full NATO
members. None of the NATO invitees has concluded an Article 98 agreement with the
exception of Romania, which was the first country to conclude such an agreement with
the United States. Romania’s agreement of August 1, 2002, took place several months
before the November 2002 NATO summit in Prague, where the alliance extended
invitations to the seven candidate countries. It also preceded the EU’s official guidance
on the matter. The Romanian government has subsequently decided not to submit the
agreement to parliament for ratification until the EU and the United States come to some
mutual understanding on the issue. As the situation currently stands, Romania is set to
become a full NATO member before its current waiver expires. To address the situation
of the new alliance members, legislation has been introduced in Congress (H.R. 2550, S.
1317) that would lift the prohibition on military aid to candidate countries that had
concluded an accession protocol with NATO; in other words, all seven in the next round
of NATO enlargement. The Senate Foreign Relations Committee reported out S. 1317
on November 6, 2003. After a reportedly extended debate within the Administration,9 the
President waived the prohibition for Bulgaria, Estonia, Latvia, Lithuania, Slovakia, and
Slovenia on November 21. The waiver only applies to projects deemed by the President
to support NATO integration or the military operations in Afghanistan and Iraq.10
Most of the same countries set to join NATO by mid-2004 are scheduled to accede
to the EU at the same time (Estonia, Latvia, Lithuania, Slovakia and Slovenia). Their
decision not to enter into Article 98 agreements with the United States is reflective of
their imminent membership in the EU and desire to align themselves with EU policies.
Bulgaria has also adopted this approach even though its entry into the EU is not expected
until 2007 or later. Conversely, those countries with the most remote prospects of EU
accession may be viewed as having greater interest in fostering close U.S. ties and
security cooperation.
Bosnia, Macedonia, and Albania face unstable regional
environments and enjoy no security guarantees. They look to the United States to bring
peace and stability to the war-torn western Balkan region and continue to support a U.S.
military presence within their borders (in the case of Bosnia) or in close proximity
(Kosovo).11 At the same time, these states emphasize their continued commitment to the
ICC and desire for close and intensified relations with the EU.
Outside of both of these groups are Croatia and Serbia and Montenegro, which have
neither signed an Article 98 agreement nor are part of the next waves of EU or NATO
accession. Both seek to strike some sort of balance on the matter between the United
States and the European Union, but appear to lean toward the EU position. In addition,
while Serbia and Montenegro needs U.S. support in order to join NATO’s Partnership for
Peace (PfP), Serbian Prime Minister Zivkovic has noted that it would be difficult to
explain to the Serbian public why the government would agree to exempt U.S. citizens
9 Jackson Diehl, “Allies and Ideology,” Washington Post op-ed, November 24, 2003.
10 Presidential Determination 2004-09, November 21, 2003.
11 Macedonia may have been motivated by the agreement’s reference to the country’s name as
“Macedonia,” instead of “the Former Yugoslav Republic of Macedonia,” which is the interim
name for the country until its dispute with Greece over use of the name “Macedonia” is resolved.
State Department officials have stated that no change in U.S. policy on the issue was intended
(State Department Daily Press Briefing, July 2, 2003).

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from extradition to the ICC while the United States insists that Belgrade arrest and
extradite its own citizens to the International Criminal Tribunal for the former Yugoslavia
(ICTY).12 The Croatian government has come under similar international pressure to
cooperate with the ICTY. Neither Serbia nor Croatia was included in the President’s
November 21 waiver determination.
Implications
The U.S. and European opposing positions on the Article 98 agreements have posed
a dilemma for many east central European governments, forcing them to make an explicit
choice on the matter and face the consequences. Many have sought some transatlantic
accommodation on the issue to allow them to remain eligible for U.S. military assistance
as well as supportive of the ICC and EU policy. U.S. Undersecretary of State Bolton
criticized the EU for imposing an “unfair choice” on EU aspirant countries in east central
Europe.13 Nevertheless, President Bush’s subsequent waiver of sanctions for Bulgaria,
Estonia, Latvia, Lithuania, Slovakia, and Slovenia (and earlier waiver for Romania)
resolved the issue for these countries, since they are all set to join NATO in 2004.
President Bush’s July 1, 2003 determination with respect to the ASPA reportedly
suspended a global total of less than $50 million in military assistance funds for the
remainder of FY2003. Considerably greater funds for military assistance are at risk for
FY2004. Critics have argued that adherence to this policy would be counterproductive
with respect to other U.S. objectives. For countries in east central Europe, a ban on U.S.
assistance that is intended to help reform, train, and modernize the armed forces of NATO
candidate countries could impede the ability of these countries to meet NATO military
standards. East central European states have contributed forces to multilateral military
operations in Iraq and Afghanistan. A continued suspension of U.S. military assistance
could adversely affect the ability and/or willingness of east central European countries to
contribute and sustain their forces in Iraq, Afghanistan, or potentially elsewhere, at a time
when the Administration is looking to increase international participation in such
missions. These considerations may have influenced the Administration’s decision in
November to waive the sanctions for the new NATO members.
On the other hand, some supporters of the ASPA argue that a better solution for
affected countries is for them to conclude Article 98 agreements that would permit a
presidential waiver of the aid restriction. Since the issue is likely to remain an important
one for the United States, they argue, a country’s unwillingness to sign a non-surrender
agreement may adversely affect U.S. support for closer military ties and assistance to such
countries, including through NATO. Some ICC opponents are also critical of the apparent
U.S. focus on negotiating exemption agreements with small nations rather than with larger
powers, including key allies.14
12 Beta news agency via the British Broadcasting Corporation, July 20, 2003. It should be noted
that the ICTY has no institutional relationship to the ICC.
13 Bolton, op. cit.
14 Betsy Pisik, “Amnesty for U.S. citizens boosted,” Washington Times, October 9, 2003.

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