Opinio Juris notes that the US might be reconsidering its position on bilateral immunity agreements, whereby the US forces smaller countries to agree not to surrender US nationals to the ICC.

This would be great news. I argued in an essay that the agreements were illegal at international law, on three grounds, two relatively weak and one I believed quite strong. The weak grounds were that the agreements defeat the object and purpose of the statute, which is a weak argument because this ground of objection ceases to have effect once a country ratifies the treaty. Therefore, the more countries ratify, the less countries there are for this doctrine to operate between.

The other weak ground was that of universal jurisdiction, which is the idea that the ICC has universal jurisdiction over the crimes prosecuted under the Rome Statute, assuming their status as jus cogens offences at international law. I hope that this argument becomes stronger in future, because I firmly agree with Geoffrey Robertson's argument that no rogue leader will think twice about committing war crimes until there is a credible threat of their prosecution.

The strongest argument for the illegality was that an interpretation of Article 98 which allowed these agreements to be in force was not the intended interpretation of the treaty signatories. In effect, States are prohibited from acting in a way not contemplated by the drafters of the treaty, and I did not believe that agreements which allowed a State to circumvent the entire operation of the court were intended to be legal under the Rome Statute.

All this is nice in theory, but unless the US supports the ICC and allows its nationals to be prosecuted along with all others, it will lack legitimacy. I have noted this week the coming trial of Charles Taylor, which is great. However, whether these agreements are illegal or not, the US will use them and abide by them, and force others to also, until they decide not to.

This, of course, is the problem of powerful states in areas of international law in which they do not wish to be bound. A visionary US would realise that its interests are best served by having a legitimate international court in which to try alleged war criminals, rather than the kangaroo courts they have set up domestically.