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

CRS Report for Congress
Received through the CRS W eb
East Central Europe: Status o f International
Criminal Court ( ICC) Exemption Agreements
and U.S. M ilitary Assistance
Specialist i n International Relations
Foreign Affairs, Defense, and T r ade Division
In a broad effort to obtai n U . S . ex emptions from International C riminal Court
(ICC) jurisdiction, the Bush Administration has sought to conclude bilateral agreem ents
worldwide t hat would prohibit t he transfer of U.S. citizens t o t he ICC. The European
Union h as strongly promoted the ICC and i s opposed to the U.S.- proposed agreements.
This report addresses t welve countries of eas t central Europe affected by the U.S. and
European policies – Albania, Bo snia-Herz egovina, Bulgaria, Croatia, Estonia, Latvia,
Lithuania, the f o rmer Yugoslav R epub lic of Macedonia, Romania, Serbia and
Montenegro, S lovakia, and S lovenia – and t he status of their v aried approaches to the
transatlantic disagreem ent ov e r t h e ICC. Many in this group are i n t he process of
joining NATO and the European Union by mid-2004. Legi slative prohibitions on U.S.
military assistance to non-all i e d IC C parties went i nto effect in J u ly 2003. However,
President Bush h as partially waived the p rohi bition’s application t o s even countries set
to join NATO i n 2004. Related CRS reports include CRS Report R L31495, U.S. Policy
Regarding the International Criminal Court ,andThe International Criminal Court and
U.S. Military Assistance (in t h e C R S Foreign Operations Appropriations Electronic
Briefing Book at [ h ttp://www.congress.gov/brbk/html/apfor40.html] ). This report m ay
be updated as n ecessary.
In J uly 2002, t h e R o m e S tatute that established t he In ternational C riminal Court
(IC C ) cam e i nt o force and o ffi ci al l y l aunc hed t he first p ermanent world court with
jurisdiction t o t ry individuals for war crimes and other s erious human righ ts abuses. 1 The
United S tates has object ed to el em ents of the C ourt’s S tatute and has sought to conclude
bilateral agreements with most countries of the world to ex empt U. S . citizens from

1 For more i nforma tion on t h e IC C , s e e CRS Report RL31495, U.S. Policy Regarding the
International Criminal Court .
Congressional Research Service ˜ The Library of Congress

possible s urrender t o t he ICC. These s o-called “Article 98 agreem ents” are named after
Article 98 (2) of t he Rome Stat ute, which bars t he IC C from requesting a surrender from
a s t at e t h at woul d requi re i t t o vi ol at e i t s i n t ernat i onal obl i gat i ons. In accordance wi t h a
U.S. law (P.L. 107-206) to restrict cooperation with the ICC , t h e Bu sh Administration
suspended U.S. military assist ance to certain IC C ratifyi ng states, effective J uly 1 , 2003.
Policy regarding the ICC is one of several i ssues in dispute bet ween the United S tates and
many European powers.
This report addresses t welve countries of eas t central Europe affected by the U.S. and
European policies – Albania, Bo snia-Herz egovina, Bulga r i a, Croatia, Estonia, Latvia,
Lithuania, the former Yugoslav R e p u b lic of Macedonia, 2 Romania, Serbia and
Montenegro, S lovakia, and S lovenia – and t he ir varied approaches to the s ituation arising
fro m t he transatlantic disagreem ent over the ICC. All are parties t o t he ICC’s R ome
Treat y. All wish t o m ai ntai n close relations with both t he United S tates and the EU; many
view the United S tate to be a key guarantor of t heir security, and al l aspire t o j oin t he EU
in the n ear or intermediate future. W ith respect to the ICC ex emption i ssue, three groups
of countries from t he regi on have emerged t hus far: those t hat h ave concluded ex emption
agreements with the United States (Albania, Bosnia, Macedonia, and Romania); those
that are ex p ected to accede t o t he EU and NATO b y mid-2004 (Estonia, Latvia, Lithuania,
Slovakia, and S lovenia, with Bul garia and R omania ex pect ed to join the EU at a later
date) and have not (ex cept for Romania) entered i nto such agr eem en t s with the United
States; and those (Croatia, and Serbia and M ontenegro) t hat are nei t h er si gn at ori es t o an
Article 98 agreement nor on the s hort list for EU or NATO m embership.
The United S tates i s not a party to the International C riminal Court and do es n o t
recogniz e IC C jurisdiction over U.S. citizens. Undersecret ary of S tate J ohn Bolton has
asserted that the C ourt runs “contrary to f undamental American principles” and has
“unaccept abl e consequences” for nat i onal s overei gnt y.3 As stated in the 2002 National
Security Strategy of the United S tates, the Bush Administration has pledged t o “work
together with other nations to avoid complications in our military operat i o n s and
cooperation, through s uch m echanisms as multilateral and bilateral agreements that will
protect U.S. nationals from t he ICC.” Accordingl y, the United S tates has sought immunity
provisions through t he U.N. S ecu r i t y Council for U.N.-authoriz ed peacekeeping
operations, and has pursued bilateral agreem ents with countries that are p arty to the ICC
to preclude ex tradition o r s urrender o f U.S. citiz ens from each respective country to the
ICC. To date, t he United S tates has reportedly concluded over 7 0 s uch agreements. 4 U.S .
officials h ave emphasiz ed t hat t he Adminis t r a t i o n will continue its gl obal campaign t o
conclude additional agreements.

2 FYROM, referred t o here a s M acedonia f or abbreviation purposes only.
3 Bolton’s address at t he American Enterprise Institute, “American J ustice and th e ICC,”
Nove mb er 4, 2003, i s avai l a bl e a t [ www.aei .or g] .
4 According t o t he State Department, some countries which have signed Article 98 agreements
have asked not to be identified. T he non-governmental Coalition f or the International Crimi nal
Cour t ma i nt a i ns a l i s t o f Ar t i c l e 98 a gr e e me n t s a t [ www.i c c now.or g] .

T h e N at i o nal S ecurity Strategy al so incl uded t he pledge to “implement fully the
American Service M embers Protection Act (ASPA, P .L. 107-206), which has p rovisions
intended t o ensure and enhance t he protection o f U.S. p ersonnel and officials.” S ection
2007 of the Act prohibits the United S tates fro m p roviding military assistance, effective
J u ly 1, 2003, to the government of a country that is a p arty to the International C riminal
C ourt (IC C ) and does not si gn an agreem ent t o ex em p t Am eri cans from IC C prosecut i on,
ex cept for NATO countries and o ther major allies. 5 On J uly 1, 2003, the Administration
suspended unallocated FY2003 funds for U.S. military assistance to 35 countries, t otaling
about $48 million. 6 The l i s t o f s a n c t i o n e d c o unt ri es i n cl uded s everal from east cent ral
Europe: Bulgaria, Croatia, Estonia, Latvia, Lithuania, Serbia and M ontenegro, S lovakia,
and S lovenia. The ASPA grants the P resident authority to w a i v e t he restrictions on
military assistance on national i nterest grounds, and includes additional waiver p rovisions.
In consideration of t heir agreem ents concluded and ratified with the United S t a t e s, the
President waived t he prohibit i o n with respect to Albania and Bo snia. He t emporarily
waived the prohibition with respect to Romania a n d M aced onia t o grant them time to
rat i f y t hei r agreem ent s . 7 In Novem b er, t he P resi d ent wai ved t he restrictions for Bulgaria,
Estonia, Latvia, Lithuania, Slovakia, an d S lovenia o n n ational i nterest grounds.
Since 2001, the European Union h as maintained a commo n position o n t he
International C riminal Court t hat s trongly emphasizes t he EU’s support for the C ourt’s
role in promoting respect for i nternational hum ani t ari a n l aw. The E U h as repeat edl y
reiterated its commitment to gi ve full support t o t he court and to preserve the i ntegrity of
the R ome S tatute. C ountries acceding t o and associated with the European Union claim
to have aligned t hemsel ves with the EU’s common position on t he ICC.
With regard to bilateral agreem ents conditioning the s urrender of persons to the ICC,
the EU i ssued gu iding p rinciples for such proposals i n S eptember 2002. They include the
principle t hat ex i sting i nternational agreemen ts, i ncluding those regarding status of forces
and ex t radition, should b e t aken into account. Ex emption agreements should not allow
persons who h ave committed crimes t o enjoy total impunity from p rosecu t i o n. They
should cover only p ersons “sent” to another country in an official capacity, as opposed to
blanket immunity for all citizens. They shoul d not be reciprocal to allow n ationals from
IC C s ignatory countries ex emption from ICC prosecution. W h ile the p rinciples d iffered
somewhat from t he U.S. approach , t he EU refrained from calling for an outrigh t b an of
ex em pt i o n agr eem en t s . 8 H o wever, no EU member state h as entered i nto s uch an
agreem ent with the United S tates t o dat e.

5 ASPA; title II of P.L. 107-206, the FY2002 supplemental a ppropriation act. M aj or non-NAT O
allies i nclude Australia, Egypt, Is rael, J apan, J ordan, Ar gen t i n a , Korea, New Zealand, and
6 The I nternational Cr iminal Court and U.S. Military Assistance, in the CRS Foreign Operations
Appropriations Briefing B ook, updated October 23, 2003.
7 Presidential Determi nation 2003-27, J une 30, 2003; 2003-28, J u l y 2 9 , 2003; 2004-07,
November 1, 2003. Macedonia has since r atified its agreement.
8 J udy Dempsey, “EU ministers back off over crimi nal court,” Financial Times , October 1, 2002,

European represent a t i ves h ave ex p ressed regret at t he si gn i n g o f t he ex em pt i o n
agreements with t h e U nited S tates b y Albania, Bosnia-Herz egovina, M acedonia, and
Romania. They assert that the agreem ents do not meet EU guidelines , are inconsistent
with the ICC Statute and international l aw, and should not be ratified. W h ile the EU h as
adhered t o its common position on t he ex em ption agreem ents, t he issue did not appear to
interfere with the E U-western Balkans summit at Thessaloniki, Greece, in J u n e 2003,
where t he E U e n d o rsed a regional s trategy t o p romote the eventual i ntegration o f all of
the wes tern Balkan stat es into the EU. Nevertheless, EU offici al s emphasize that future
EU candidate countries are ex p ected to share t he values and policy positions of the EU,
incl uding with regard to the ICC.
The following chart illustrates t he current stat us of the t welve eas t central European
countries with respect to the Article 98 agreements, EU an d NATO entry, and U.S.
military assistance (comprising t he Foreign M ilitary Fi nancing and International M ilitary
Education and Training accounts).
ICC Ar t . 98 NATO EU association F Y 03 FY04
part y agreement invitee allocated requested
(5/04) military military aid
Al bani a / 05/02/03 SAPb $8.8 $5.0
Bosnia / 05/16/03 SAP $3.3 $2.9
B ulgaria / -- / EU candidate $20.4 $9.9
Croatia / -- SAP $6.2 $5.8
Es t o ni a / -- / acceding 5/04 $10.4 $7.5
Lat v i a / -- / acceding 5/04 $10.1 $7.5
Li t huani a / -- / acceding 5/04 $11.6 $8.2
FYROM / 06/30/03 SAP $12.6 $10.7
Rom a ni a / 08/01/02c / EU candidate $26.4 $10.5
Mont -- SAP $0.9 $0.5
Slovakia / -- / acceding 5/04 $15.5 $9.0
Sl oveni a / -- / acceding 5/04 $5.0 $5.0
a estimates of combined FY03 regular a nd s upplemental appropriations; only portions
unallocated by 7/1/03 were affected by the s uspension f or the r est of FY03.
b EU Stabilization and Association process f or the western Balkan countries to promote
c not yet r atified.

Fo r t he seven countries invited t o j oin NATO i n 2004, the p rohibition under t he
ASPA on U.S. military aid funds will no longer apply once t hey b ecome full NATO
members. None of the NATO i nvitees has concluded an Article 98 agreem ent with the
ex ception o f R omania, which was t he first c ountry to conclude such an agreement with
the United S tates. Roman i a’s agreement of August 1 , 2002, took place several m onths
before the November 2002 NATO s ummi t i n P ragu e, where t he alliance ex t ended
invitations to the s even candidate countries . It also p receded the E U’s o fficial gu idance
o n t h e m atter. The R omanian government has s ubsequently decided not to submit t h e
agreem ent t o parliament for ratification until the EU and the United S tates come t o some
mutual understanding on the i ssue. As the s itua tion currently stands, R omania is set t o
becom e a ful l NATO m em ber b efore i t s current wai v er ex pi res. To address t he si t u at i o n
of the n ew alliance m embers, l egislation h as been introduced in Congress (H.R. 2550, S.
1317) that would lift t he prohibition on military aid t o candidate countries that had
concluded an accession protocol with NATO; in other words, all seven i n t he nex t round
of NATO enlargement. The Senate Fo reign R elations Committee reported out S. 1317
on November 6, 2003. After a reportedly ex t e nded debate within the Administration,9 the
Pres ident wai ved t he prohibition for Bulgaria, Estonia, Latvia, Lithuania, Slovakia, and
Slovenia o n November 21. The waiver only app l i es t o p roj ect s d eem ed by t h e P resi dent
to support NATO i ntegration o r t he military operations in Afgh anistan and Iraq.10
Most of the s ame countries set t o j oin NATO b y mid-2004 are s cheduled to accede
t o t he EU at t he same time (Estonia, Latvia, Lithuania, Slovakia and Slovenia). Their
deci sion not to enter i nto A rt i c l e 9 8 agreem ents with the United S tates i s reflective of
thei r imminent m em bership i n t he EU and des ire t o align t hemsel ves with EU policies.
Bu lgaria has also adopted this approach even though its entry i nto t he EU is not ex pected
until 2007 or later. Conversely, those countri es with the m ost remote p rospects o f EU
accessi on m ay b e v i ewed as h avi n g g r e at er i n t erest i n fost eri n g cl o se U.S . t i es and
security cooperation. Bosnia, M acedonia, and Albani a f a ce unstable regional
environments and enjoy no security gu arantees. They l ook to the United S tates t o bring
peace and s tability to the war-torn western Balkan regi on and continue to support a U.S.
military p r es ence within thei r borders (in t he cas e of Bosnia) or in cl ose prox imity
(Kosovo). 11 At the sam e time, t hese stat es em phasize thei r continued commitment to the
IC C and desire for close and i ntensified relations with the EU.
Outside o f both o f t hese groups are C roatia and S erbia and Montenegro, which have
nei t h er si gn ed an Art i cl e 98 agreem ent nor are p a r t o f t h e n e x t waves o f E U o r NATO
accessi on. Bot h seek t o st ri ke s o m e sort of bal ance o n t he m at t er b et ween t h e Uni t ed
S t at es and t he European Uni on, but appear to lean toward the EU position. In addition,
while Serbia and M ontenegro needs U.S. s upport i n o rder to join NATO’s P artnership for
P eace (P fP ), S e r b i a n P rime Minister Zi vkovi c h as noted that it would b e d ifficult to
ex plai n t o t he Serbian public why t he govern m e nt would agree to ex em pt U.S. citizens

9 J ackson Diehl, “Allies and Ideology,” Washington Post op-ed, November 24, 2003.
10 Presidential Determi nation 2004-09, Nove mber 21, 2003.
11 Macedonia may have been motivated by the agr eement’s r eference to the countr y’ s name as
“Macedonia,” i nstead of “the Former Yugoslav Republic of Macedonia,” which is the i nterim
name for t he country until its dispute with Gr eece over use of t he name “Macedonia” is resolved.
Stat e Department officials have s tated t hat no change i n U.S. policy on t he issue was intended
(State Department Daily Press Briefing, J uly 2, 2003).

from ex t radition t o t he IC C while the United S tates i nsists that Belgrade arres t and
ex tradite its own citizens t o t he In ternational C riminal Tribunal for the former Yugoslavia
(IC T Y). 12 The C roatian government has come under s imilar i nternational p ressure to
cooperate with the ICTY. Neither Serbia nor Croatia was included in the President’s
November 21 waiver determination.
The U.S. and European opposing positions on the Article 98 agreements have posed
a dilemma for m any eas t central European governments, forcing t hem t o m ake an ex plicit
c h o i ce on the m atter and face the consequences. M any h ave s ought some transatl a n t i c
accommodation o n t he issue t o allow t hem t o remain eligible for U.S. military assistance
as well as supportive o f t h e IC C and EU policy. U.S. Undersecretary o f S tate Bo lton
criticized the EU for imposing an “unfair choi ce” on EU aspirant countries in east central
Europe. 13 N evertheless, President Bush’s s ubsequent waiver of sanctions for Bulgaria,
Estonia, Latvia, Lithuania, Slovakia, and S lovenia (and earlier waiver for Romania)
resolved the i ssue for these countries, s ince they are all set t o j oin NATO i n 2004.
President Bush’s J uly 1 , 2003 determination with respect to the ASPA re p o r t edly
suspended a gl obal t otal of less than $50 million i n m ilitary assistance funds for t he
r e m a i n d er o f FY2003. Considerably greater funds for military assistance are at risk f o r
FY2004. Critics h ave argu e d t hat adherence t o t his policy would b e counterproductive
with respect to other U.S. objectives. For countries in east central Europe, a ban o n U.S.
assi st ance t h at i s i n t ended t o h el p reform , t rai n, and m oderni z e t he arm ed forces of NATO
candidate countries could impede t he ab ility of these countries t o m eet NATO military
standards. East central European states have cont ri but ed forces to multilateral military
operations in Iraq and Afghanistan. A continued s uspension of U.S. military assistance
could adversely affect the ability and/or willingn ess o f east central European countries to
contribute and sustai n t heir forces in Iraq, Afghanistan, or potentially el sewhere, at a time
when the Administration i s l ook ing t o i ncreas e i nternational participation i n s uch
missions. These consideration s may have i nfluenced the Administration’s deci sion in
November to waive t he sanctions for t he new NATO m embers.
On the o ther hand, s o m e supporters of th e ASPA argue t hat a better s olution for
affected countries is for t hem t o conclude Article 98 agreem e n t s that would p ermit a
pres idential wai ver of t he ai d res triction. Since t he issue i s likel y t o rem ai n an important
one for t he United S tates, they argue, a c ount ry’s unwillingnes s t o s ign a non-surrender
agreement m ay adversely affect U.S. support f or closer military ties and assistance to such
countries, i ncluding through NATO. Some IC C opponents are also critical of the apparent
U.S. focus on negotiating ex emption agreem ents with smal l nations rather than with larger
powers, incl uding key allies.14

12 Beta news agency vi a t he Br itish Broadcasting Corporation, J uly 20, 2003. It should be noted
that the ICT Y has no institutional r elationship t o t he ICC.
13 Bolton, op. cit.
14 Betsy Pisik, “Amnesty f or U.S. citizens boosted,” Washington Times , October 9, 2003.