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The Government of Jamaica intends to ratify the Rome Statute of the International Criminal Court (ICC), which would make Jamaica a State Party to the ICC, which has power to investigate and prosecute those who commit genocide, crimes against humanity and war crimes. But the Government must also grapple with the issue of whether to sign a bilateral agreement with the United States of America, granting US citizens exemption from the ICC.
If the Jamaican government does not sign this latter agreement, often referred to as an Article 98 agreement, it faces sanctions from the USA, in the form of the withdrawal of military assistance to the island.
The announcement was made on Wednesday (Feb. 18), by Minister of Justice and Attorney-General A. J. Nicholson, at a workshop on the Rome Statute of the International Criminal Court. The workshop was hosted by the Ministry of Justice and the Ministry of Foreign Affairs and Foreign Trade, in collaboration with the International Centre for Criminal Law Reform and Criminal Justice Policy. The event took place at the Jamaica Conference Centre in downtown Kingston.
Minister Nicholson, who addressed the audience of attorneys-at-law and parliamentarians, told them that Jamaica, consistent with its commitment to the rule of law, was part of the CARICOM delegation that went to Rome. “We have signed, but we have not ratified the Rome Statute,” he said, adding, “We intend to ratify that Statute”.
He noted though, “There are hurdles to be crossed.in our attempt to ratify that statute”.
Dr. Stephen Vasciannie, Senior Consultant, International Relations in the Attorney-General’s Office, who explained the Article 98 agreement, said it was so called, partly because there was a provision in Article 98, paragraph 2, of the Rome Statute, which states that your country may not surrender people found within your borders, who have been sent there by another country, without the consent of the country which sent them. Hence, he explained, “America is saying, we want a bilateral agreement with you, that you won’t surrender [our people to the ICC]”.
The Senior Consultant said that he believed part of the bilateral agreement would be compatible with the Rome Statute.
However, he pointed out, a difficulty could arise, where Americans or US employees were in Jamaica, but who were not “sent” to the island, such as persons on vacation. If such individuals are in the island for any non-governmental function, he stressed, they have not been “sent”. In such a case, Jamaica could not claim that it had an agreement not to send such persons to the ICC. Thus, if a situation were to arise, where the ICC was to request that Jamaica send them a US government employee who may be on the island, on non-governmental business, and the US government was also to request that Jamaica not send that person to the International Criminal Court, then there would be a conflict and incompatibility, between the ICC and a bilateral agreement with the United States, Dr. Vasciannie explained.
“Under one treaty we would be obliged to send, and under another treaty, we would be obliged not to send,” he pointed out.
Outlining the implications of not signing the Article 98 agreement with the USA, Dr. Vasciannie told the attorneys and parliamentarians, that Jamaica would not get military assistance from the northern neighbour. “In the post 9-11 world, you can be sure that military assistance will be broadly defined,” he warned.
He noted that it would mean that the police force would get fewer resources through US channels than before, adding that the US police sometimes carried out activities, which could be regarded as military.It would also mean that in respect of cooperation in the fight against drug trafficking, Jamaica could lose some of the “shiprider-type assistance” that was now available.
The Senior Consultant also explained the American position on the International Criminal Court. “The Americans take the view that the Rome Statute.would make them vulnerable to politically motivated charges. They say that as the world’s lone superpower at this time, they have all sorts of international obligations, all sorts of responsibilities with respect to international peace and security . therefore they don’t want their soldiers to be open to all sorts of charges all over the world,” he said.
To sign or not to sign the bilateral agreement with the Americans, Dr. Vasciannie said, was a challenging decision, and primarily a political one, though it had legal aspects. “To stand up and say we defend the Rome Statute in its purest form, or to say, there are certain realities that we face as a small developing country, 170 miles from the United States,” are the choices, which face the government of Jamaica,” he said.
He also noted that there were a number of positives to ratifying the Rome Statute. These include the fact that the Court seeks to bring to justice those who would commit serious crimes with impunity; the court goes to great lengths to see that due process in law is observed; there is equitable geographical representation among the judges; and equitable gender representation.
Other Caribbean countries which have ratified the Rome Statute on the International Criminal Court are Trinidad and Tobago, Antigua and Barbuda, Barbados, Belize, Dominica, St. Vincent and the Grenadines. A total of 92 countries have so far ratified the Statute.The International Criminal Court, which is now fully established, has as its primary objective, the removal of impunity surrounding atrocious crimes committed internationally. These have been determined as genocide, war crimes and crimes against humanity. A definition for a fourth category, termed ‘crimes of aggression’ is still being determined.
Minister Nicholson noted that the workshop and the public forum held on February 17 at the Norman Manley Law School, were designed to engage public participation in the decision making process in governance. “Those who are mandated to make laws for the peace, order and good governance of Jamaica cannot ignore the events taking place globally,” he said.

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