American Justice and the International Criminal Court

There has been considerable debate in the United States about the International Criminal Court ("ICC"), much of it in this very room. Rather than rehearse many of those arguments, however, I thought it might be helpful to give you a report from the front, describing current efforts by the United States to protect its citizens from the illegitimate assertion of authority over them. As President Bush has argued as far back as the 2000 campaign, the problems inherent in the ICC are more than abstract legal issues; they are matters that touch directly on our national interests and security, and therefore also affect the security of our friends and allies worldwide. As a result, the United States is engaged in a global campaign to conclude bilateral agreements that will ensure U.S. persons are not subjected to the ICC’s jurisdiction.

For numerous reasons, the United States decided that the ICC had unacceptable consequences for our national sovereignty. Specifically, the ICC is an organization that runs contrary to fundamental American precepts and basic Constitutional principles of popular sovereignty, checks and balances, and national independence.

 

U.S. military forces and civilian personnel and private citizens are currently active in peacekeeping and humanitarian missions in almost 100 countries at any given time. It is essential that we remain steadfast in preserving the independence and flexibility that America needs to defend our national interests around the world. As President Bush said: "The United States cooperates with many other nations to keep the peace, but we will not submit American troops to prosecutors and judges whose jurisdiction we do not accept.. . . Every person who serves under the American flag will answer to his or her own superiors and to military law, not to the rulings of an unaccountable International Criminal Court."

Accordingly, in order to protect all of our citizens, the United States is engaged in a worldwide effort to conclude legally binding, bilateral agreements that would prohibit the surrender of U.S. persons to the Court. These Article 98 agreements, so named because they are specifically contemplated under Article 98 of the Rome Statute that created the ICC, provide U.S. persons with essential protection against the Court’s purported jurisdictional claims, and allow us to remain engaged internationally with our friends and allies.

Thus far, the United States has concluded and signed Article 98 agreements with 70 countries all over the globe, representing over 40 percent of the world’s population. Each Article 98 agreement meets our key objective--ensuring that all U.S. persons are covered by the terms of the agreement. This broad scope of coverage is essential to ensuring that the ICC will not become an impediment to U.S. activities around the world. We must guarantee the necessary protection to our media, delegations of public and private individuals traveling to international meetings, private individuals accompanying official personnel, contractors working alongside official personnel (particularly in the military context), participants in exchange programs, former government officials, arms control inspectors, people engaged in commerce and business abroad, students in government sponsored programs, to name just a few categories of persons. The orderly conduct of news reporting, diplomatic relations, economic activity, tourism, military operations, humanitarian programs, cultural and education exchanges, and other contacts between peoples around the world depend upon rules that are fair, well understood, and subject to appropriate due process.

Article 98 agreements serve to ensure that U.S. persons will have appropriate protection from politically motivated criminal accusations, investigations, and prosecutions. These straightforward agreements require that our partners agree, either reciprocally or non-reciprocally, not to surrender U.S. persons to the International Criminal Court, not to retransfer persons extradited to a country for prosecution, and not to assist other parties in their efforts to send U.S. persons to the ICC. We have worked hard to find mechanisms and formulations in these agreements that meet our requirement of blanket coverage while also responding to the needs of our bilateral partners.

Indeed, our current tally attests to the growing consensus worldwide that Article 98 agreements that provide for coverage of all U.S. persons are legitimate mechanisms provided for in the Rome Statute itself. Of the 70 countries that have signed Article 98 agreements with us, 50 are signatories or States Parties to the Rome Statute. Based on our extrapolations from negotiations currently underway, not only do we anticipate a rising number of total Article 98 agreements, but even more agreements from States Parties and signatories to the Rome Statute. Our ultimate goal is to conclude Article 98 agreements with every country in the world, regardless of whether they are a signatory or Party to the ICC, or regardless of whether they intend to be in the future.

The U.S. decision to seek these bilateral agreements originated during the open debate in the U.N. Security Council on Resolution 1422. A number of ICC proponents, including European Union members, encouraged us not to resolve these issues in the Security Council, but rather to do so on a bilateral basis. Following this advice from our European friends, we began in the late summer of 2002 to seek Article 98 agreements as an arrangement that would satisfy our concerns, but also fall within the Rome Statute provisions.

Ironically, the European Union ("EU") subsequently rejected the advice of some of its own members, and established a coordinated position that has made it difficult for its member states to conclude acceptable Article 98 agreements with the United States. Moreover, the EU is also now putting pressure on EU aspirant countries to apply restrictive conditions on such agreements with us. Some EU officials have argued that the wording of Article 98 of the Rome Statute limits the categories of persons that can be covered by bilateral non-surrender agreements, and the EU has imposed guidelines to this effect. On the contrary, the Rome Statute does not impose any obligation on States Parties to refrain from entering into non-surrender agreements that cover all their persons, while those who insist upon a narrower interpretation must, in effect, read language into Article 98 (2) that is not contained within the text of that provision.

From our perspective, the EU is imposing an unfair choice upon our friends and allies, particularly those countries seeking to join the EU. It is difficult to see how our attempt to use provisions of the treaty to protect U.S. persons would do unacceptable damage to the spirit of the treaty, when the treaty itself provides for such agreements. Indeed, parties to the Rome Statute have used Article 124 to exempt their nationals for a period of seven years from the Court’s war crimes jurisdiction, yet there has been no suggestion that triggering these treaty provisions will undermine the Court. One EU member, France, has already invoked that exemption in order to protect its citizens from accusations with respect to war crimes. We hope that senior EU officials in Brussels will reconsider their insistence on attaching overly restrictive conditions to Article 98 agreements, given the wide support we are receiving on this issue elsewhere in the world. We also continue to discuss, on a bilateral basis with EU member states, our desire to conclude properly-crafted Article 98 agreements with them.

Increasingly, Article 98 agreements play an important role in U.S. bilateral relationships regardless of whether a State is a Party to the Rome Statute. Of importance here is the decision by the Congress to ensure that these agreements are a foundation for military cooperation relationships around the world. The American Servicemembers Protection Act, which was enacted with strong bipartisan support by both houses of the Congress, prohibits military assistance to countries that have ratified the Rome Statute but not entered into Article 98 agreements with the United States. Additionally, there are strong reasons for entering into these agreements with States that are not Party to the Rome Statute. First, a State not currently a Party to the Rome Statute may become one at any time. Second, the ICC may request that a non-Party arrest and surrender to the Court a U.S. person on its territory. The Rome Statute contains no requirement for the State to notify the United States, or receive our consent, before such a surrender. Concluding an Article 98 agreement is thus important to future cooperation on a range of diplomatic, military, and security initiatives. It also sends an important political signal that American concerns are widely shared around the world.

It is a misconception that the United States wants to use these agreements to undermine the ICC. To the contrary, we are determined to be proper in our relations with the Court, proceeding in a manner specifically contemplated by the Rome Statute itself. Moreover, in each agreement, the United States makes clear its intention to bring to justice those who commit genocide, crimes against humanity and war crimes. This is the stated goal of ICC supporters, and a goal that the United States has and will maintain.

Proponents of the ICC refuse to concede that the Court poses any problems for the United States. One of the principal arguments of the ICC’s supporters has been that it will function, in effect, as a "court of last resort." For countries that have functioning judicial systems, they contend, there is no reason to question the legitimacy of those countries investigating and prosecuting their own nationals accused of crimes covered by the Rome Statute. Indeed, this concept, given the name "complementarity," was touted in the debates leading up to the Rome Statute, and in the lobbying campaign in the United States after the signing of the Statute, as perhaps the main reason the United States had nothing to fear from the ICC.

This is certainly the view that most European governments hold. They tell us in our bilateral discussions with them about Article 98 agreements that the ICC is mostly for use in "failed states," where there is no functioning judicial system, and where, absent the ICC, there would be no capacity whatever to administer justice, as defined in the Rome Statue. In many cases, these governments have told us that they would envision investigating and prosecuting their own citizens in their national courts, rather than resorting to the ICC in the first instance, thus asserting their prerogatives under the "doctrine" of "complementarity." One major problem with this view, of course, is that the "doctrine" itself is untested, and whether and under what circumstances the ICC’s Prosecutor will accept assertions of national jurisdiction remains essentially unknown.

What the United States is basically seeking, through Article 98 agreements, is nothing more than what States Parties to the Rome Statute claim they already have. If someone were to assert that the American judicial system was corrupt, incompetent or tolerant of war crimes and crimes against humanity, and therefore amounted to the kind of "failed state" for whose judicial system the ICC was intended to substitute, that would be one thing. We would, I can assure you, certainly be prepared to contest those assertions. Not surprisingly, however, no one seriously makes this argument. No one contends, openly at least, that the American judicial system would not, properly and diligently, perform its function in appropriate circumstances. Nor could they. As Secretary Powell has said: "We have the highest standards of accountability of any nation on the face of the earth."

Of course, since the United States is not even a party to the Rome Statute, there is even less reason why we should be treated more harshly than States Parties. It is neither reasonable nor fair that the crimes laid out in the Rome Statute should apply to a greater extent to States that have not agreed to its terms than to those that have. This aspect of the Rome Statute is, among other things, a fundamentally unfair and highly dangerous break from the long-established premise of the International Court of Justice that there is no jurisdiction without the consent of States Parties.

But let us return to the fundamental point that "complementarity," one of the supposed bedrocks of the ICC, is being denied the United States by those countries that do not accept Article 98 agreements. Here, we can only conclude that another agenda is at work, namely the continued determination of some ICC supporters who hope to cajole the United States into adhering to the Rome Statute, ironically under the rubric of better protecting its own citizens. This is an interesting approach, and one that is doomed to failure. We will not join the ICC, and we will continue to press for Article 98 agreements.

Subjecting U.S. persons to this treaty, with its unaccountable Prosecutor and its unchecked judicial power, is clearly inconsistent with American standards of constitutionalism. This is a macro-constitutional issue for us, not simply a narrow, technical point of law. Our concerns about politically motivated charges against U.S. persons are not just hypothetical. Recently in Belgium, allegations of war crimes were brought against the President, the Vice President, the Secretaries of State and Defense, and former President Bush under that country’s notorious and far-reaching universal competence statute. That problem was brought closer to home when senior Belgian officials themselves were charged under the statute, and the law was subsequently amended to limit its scope. Without sufficient protection against such frivolous charges, responsible officials may be deterred from carrying out a wide range of legitimate functions across the spectrum, from actions integral to our national defense to peacekeeping missions or interventions in humanitarian crises or civil wars, such as in Liberia. Simply launching criminal investigations has an enormous political impact. Although subsequent indictments and convictions are unquestionably more serious, a zealous independent Prosecutor can make dramatic news just by calling witnesses and gathering documents, without ever bringing formal charges.

Accumulated experience strongly favors a case-by-case approach to resolving serious political and military disputes, rather than the inevitable resort to adjudication. One alternative to the ICC is the kind of Truth and Reconciliation Commission created in South Africa. This approach was intended to make public more of the truth of the apartheid regime in the most credible fashion, to elicit admissions of guilt, and then to permit society to move ahead without the prolonged opening of old wounds that trials, appeals, and endless recriminations might bring.

 

Another alternative, of course, is for the parties themselves to try their own alleged war criminals, as the doctrine of "complementarity" supposedly contemplates. In fact, the fullest cathartic effect of the prosecutorial approach to war crimes occurs when the responsible population itself comes to grips with its past and administers appropriate justice. The international effort should encourage warring parties to resolve questions of criminality within national judicial systems, as part of a comprehensive solution to their disagreements. Removing key elements of the dispute to a distant forum, especially the emotional and contentious issues of war crimes and crimes against humanity, undercuts the very progress that these peoples, victims and perpetrators alike, must make if they are ever to live peacefully together.

We strongly support states fulfilling their sovereign responsibility to hold perpetrators of war crimes accountable rather than abdicating that responsibility to the international community. For this reason, the United States has been a major proponent of the special court in Sierra Leone because it is grounded in sovereign consent, combines domestic and international participation in a manner that will generate a lasting benefit to the rule of law within Sierra Leone and its regional environs, and interfaces with the truth and reconciliation commission of that country to address accountability for a wide range of perpetrators.

In the past, the United States has supported the establishment of ad hoc tribunals, such as those for Yugoslavia and Rwanda, which, unlike the ICC, are created and overseen by the U.N. Security Council, under a U.N. Charter to which virtually all nations have agreed. But we are now moving beyond that. The international community can help equip local governments to try cases domestically in a credible manner. We are doing this in the Balkans and in Rwanda. On October 30, the United States pledged $10 million at a donors’ conference in The Hague to support domestic war crimes trials in Bosnia and Herzegovina. We are supporting preparations for war crimes trials in Croatia and Serbia and Montenegro, something that would have been unthinkable a few years ago. We are also supporting such efforts in Rwanda. Now, the Security Council tribunals are beginning to look at transferring cases under their jurisdictions to domestic courts.

In matters of international justice, the United States has many foreign policy instruments to utilize that are fully consistent with our values and interests. We will continue to play a worldwide leadership role in strengthening domestic judicial systems and promoting freedom, transparency and the rule of law. We seek no immunity for our citizens, but only a simple, non-surrender agreement as contemplated in the Rome Statute. We fully commit ourselves, where appropriate, to investigate and prosecute serious, credible accusations of war crimes, crimes against humanity and genocide that have been made against any of our people.

We respect the decision of states to become parties to the Rome Statute, but they in turn must respect our decision not to be bound by jurisdictional claims to which we have not consented. As President Bush stated in his National Security Strategy, "We will take the actions necessary to ensure that our efforts to meet our global security commitments and protect Americans are not impaired by the potential for investigations, inquiry, or prosecution by the International Criminal Court, whose jurisdiction does not extend to Americans and which we do not accept." States Parties to the Rome Statute have created an ICC to their liking, and they should live with it. The United States did not agree to be bound, and must not be held to its terms.

Question and Answer

Barbara Slavin of USA Today: I’m going to ask you a question that is not about ICC per se but I think relates to it. You said there is no jurisdiction without the consent of states parties, this is an important principle in international law. My question is about the Proliferation Security Initiative, which the United States is organizing. What is the basis in international law for putting something like this together, how can you stop ships of countries that are not parties to this agreement, and how do you propose to give it some basis in international law if it does not have one already?

Bolton: Well actually there is a vast reservoir of authority, both national authority and international authority, for our ability to interdict shipments of weapons of mass destruction and ballistic missiles on sea, on land, and in the air. We have very carefully reviewed this in the course of our preparations for the Proliferation Security Initiative, many lawyers in the United States have looked into it, as have many lawyers in the other ten countries that have joined with us in the Statement of Interdiction Principles that was announced in Paris some weeks ago. These include countries like France, Germany, Japan, Australia, countries with a wide variety of legal systems, different political colorations to their government, different views about international law. We have all come to the conclusion that we have authority to conduct such interdictions under a variety of different circumstances. Now there are an infinite number of possibilities in which interdictions can take place and there’s no doubt, and we have discussed this among ourselves, where there are circumstances where our authority may be unclear or it may be lacking, and in those circumstances we have considered the possibility of seeking additional authority. One example of that is ongoing consideration in the international maritime organization of amendments to the Suppression of Unlawful Acts at Sea Convention, a convention that’s already subscribed to by over 90 countries. But there’s no doubt in our mind that there is a substantial amount of authority existing and that we’re prepared to use it. And that’s not just my view, that’s the view of the considered legal judgement of the entire American government and of the ten other governments that have subscribed to the PSI.

Slavin, USA Today: Despite what you say about U.S. willingness to prosecute people suspected of serious crimes and so on, our refusal to sign on to the ICC has contributed to a sense, perhaps, in the rest of the world that the U.S. makes the rules that it intends to enforce and it doesn’t want to be bound by anybody else’s ideas. Are you concerned that our failure to sign onto the ICC has made the United States even more unpopular abroad and contributed to the sense that we are not to be bound by anybody else’s ideas?

Bolton: As I said in my remarks, we have the strictest system of accountability under both military and civil law against persons accused of war crimes and crimes against humanity of any country on earth. I’d be happy to compare our judicial system with anybody else’s and compare our record with anybody else’s. The issue here is the critical issue of who makes the decisions on investigations and prosecutions, and what we believe is that it’s appropriate for American institutions to try and prosecute American citizens. And that is the same basis that most other countries that have joined the ICC have concluded that they’re going to follow, that their courts will investigate their citizens as well. So what we’re asking for here is not impunity, what we’re asking for is a proper allocation of responsibility for this function, and I don’t think its impaired American objectives anywhere in the world, as demonstrated by the fact that 70 countries have already shown they agree with us and many others are in very intense negotiations that will lead here in a matter of weeks or months to many more Article 98 agreements.

Ruth Wedgwood, SAIS: John, I had one question just on something you may want to do behind the scenes more than publicly perhaps, but, as I mentioned in my talk just a few minutes ago, some European lawyers hold to a doctrine of so-called double complementarity, that not just the case but the person would come home, so father Bush or Tommy Franks would just get a two-way ticket back to Washington. It does not do everything you want an Article 98 agreement to do, but if Luis Moreno Ocampo were to adopt that as his prosecutorial of the complementarity article, that I think could be very helpful to us, and I wonder if you might want to give some thought to that as a belt and suspenders safeguard.

Bolton: Well it’s a possibility. I think we’re working on the belt part of it now, and we’ll see what happens. Frankly, if the European Union would agree to the scope of coverage that we feel we need, and that is to protect all American citizens, not just government officials and military personnel, we’d have 180 of these agreements signed up almost over night and I think that would solve the problem right there.

Heather Hamilton, World Federalist Association: We’ve heard that funds, military assistance, is being withheld from several key American allies who have troops on the ground in Iraq. In particular, for example, Estonia stands to lose $2.75 million from the ’03 Iraq supplemental including $800,000 for night vision goggles, $500,000 for explosive demolition equipment, and $1.45 million for general equipment all for troops that they have deployed in Iraq, and that’s only one of several examples of countries losing assistance specifically for being in Iraq. Does the administration have any plans to issue waivers on the basis of national security as permitted in the American Servicemembers’ Protection Act for those countries that are there in Iraq with us on the ground as part of the Coalition?

Bolton: Well I guess the first answer I’d give to that is ask where you got those figures, but maybe I won’t press that particular point here today. The question of waivers is an authority provided by the terms of the American Servicemembers’ Protective Act, and the decisions that we make to provide temporary or programmatic waivers will be announced when we’re ready to announce them.

Harpinder Athwal, World Federalist Association: I’m curious to know the role that the United States will be playing in the Democratic Republic of the Congo. Especially as the ICC has announced its preliminary case collection, information collection proceedings in the Congo and is looking to national states working in the Congo at the moment and also organizations on the ground there who have been collecting evidence for a long time now. Will the U.S. be cooperating with the ICC on this issue?

Bolton: I think under the terms of the American Servicemembers’ Protection Act and our own policy that what the ICC does there it will pretty much do on its own, and they’ve announced that that is going to be one of their priorities and we’ll certainly watch it with interest.

Julia Graff, Independent Student Coalition for the International Criminal Court: I have two questions, first in your talk you mentioned the unaccountability of the prosecutor. I think in discussing fear of politicization of the court it’s important to recognize that there are built-in limitations to prosecutorial discretion, the most powerful of which is the Security Council’s power to defer investigations and prosecutions for 12 month periods which are renewable. I guess my question in trying to understand your concern about politicization of the ICC is do you feel that the Security Council is going to be too timid in invoking those powers?

Bolton: I think, as you surely know as a careful student of the court, the original draft of the Rome Statute gave the authority to the Security Council to initiate prosecutions, and therefore, that the authority to initiate prosecutions was subject to a veto by the five permanent members. Over the objection of the Clinton administration, that was changed to provide that the Council had only the authority to try and block investigations that the prosecutor had already started and which resolution itself, of course, would be subject to a veto. So I think that the risk of politicization and the risk to Americans in particular is quite intense because of that provision.

Graff: My second question was just that you had mentioned that the Rome Statute applies more harshly to citizens of non-states parties than to citizens of states parties, and I was wondering if you could explain in what way that is so.

Bolton: For all of the reasons I have just laid out for the last twenty minutes in the speech why we’re seeking Article 98 agreements. A state party to the Rome Statute can invoke the doctrine of complementarity and try one of its own nationals in its own court, but we, not a state party to it, are precluded from that unless we can get our citizens back, and that’s why the statute cuts unfairly and it is one mark of why the Rome Statute does constitute such a dangerous precedent, purporting to be a treaty that binds states that have not subscribed to it, which I think is intolerable.

Elyse Labatt, CNN: Just to follow up on the question about the Congo and how you said that the court would be acting on its own. I’m not sure if the Congo actually applies in this case but are you concerned that the U.S. decision not to become party to the court will affect U.S. national security interests by hampering U.S. ability to influence who might be prosecuted by the court and perhaps that those parties that are prosecuted by the court did some damage to U.S. national security interests?

Bolton: It is a conscious assessment of the calculus of the cost and benefits of joining or not joining the court that led to our conclusion that we were not going to join and there’s always an argument in international diplomatic circles that it’s better to be involved than not to be involved, and there’s at least a minimal element of validity to that, but the far greater risk consisted of giving this court any institutional validity at all, for all of the reasons that I’ve expressed here today plus all of the other reasons that I’ve expressed in earlier speeches in my official capacity, fully cleared across the entire United States government, about the problems that we have with this court. On balance I think it was pretty clear to us that the risks posed by this court are such that we’re far better off not participating.

Christina Hartman, Independent Student Coalition for the International Criminal Court: We are one of those groups that are proponents of the ICC but we also work to present both sides of the issue and give both sides a platform from which to debate on the International Criminal Court. You indicated in your speech that the intention of the Article 98 agreements was not to undermine the court. And one of the things that our group does is work to maintain a positive relationship between the United States and the ICC. I’m wondering what is the U.S. government doing to make sure that, despite the negative implications of the Article 98 agreements that there is going to be a positive relationship between the United States and the court.

Bolton: Well, I can’t guarantee that there will be. I think we have demonstrated by our use of the Article 98 mechanism that we are prepared to act within the constraints that Article 98 provides. We could have simply said we’re not going to engage in these discussions at all. And, in fact, I can tell you even for large numbers of countries with which we have not yet signed Article 98 agreements they have given us very solemn political assurances that they’re not going to turn any Americans over to the court. Our success, I think, in protecting Americans by at least politically binding statements is as substantial, perhaps in some cases even more so, than our success with the 70 Article 98 agreements that we’ve signed. But that is not sufficient in our judgment; that’s why we continue to seek the Article 98 agreements.

Richard Griffiths, United Church of Christ: This morning in our panel discussions there was quite a lot of discussion about complementarity and you made a comment and I copied it down and I wonder if you’d comment on your sense of the concept of it, that it is a doctrine that is still untested fundamentally.

Bolton: Would you care to elaborate the circumstances in which it has been tested?

Richard Griffiths: No, but I think that you’re lifting this up (unintelligible.)

Bolton: Seriously, let’s talk here for a minute about this. Where has the doctrine of complementarity been used before? I mean, I’ll throw the question out to the whole audience, where has this doctrine been used before? It is a theory, it’s an interesting theory, and it’s a completely untested theory, as I think I have just demonstrated.

Maggie Gardiner, World Federalist Society: You emphasized in your talk that we have the full intent with the Article 98 agreements to prosecute these individuals in the United States, which I would hope we would do. But at the time the administration announced its intent not to be bound by its signature on the Rome Treaty, the administration also said that we would be addressing the gaps in our laws that do not allow us to prosecute all the crimes that are covered by the ICC. Even though it’s based largely on our own military code, there are other places in our criminal code where it does not match up exactly. I was wondering if you could comment on what progress has been made on that project, if any?

Bolton: First let me say that the scope of the substantive offenses listed in the Rome Statute are really quite vague. They have frequently taken the language from existing treaties and turned them into what they purport to make as criminal offenses. I suggest one difficulty with that approach is that if you had that language enacted in the form of criminal statutes in the United States they would almost surely be subject successfully, I think, to challenges under the void for vagueness doctrine because they don’t give fair warning to the defendant, and all of you who are worried about civil liberties I’m sure will care about that as well. So part of what we’re trying to do in the research that the Department of Justice is conducting is see what is appropriate in these vague and nebulous provisions of the Rome Statute that requires modification under existing American criminal law. But, as I said before, quoting Secretary Powell, we have the highest standard of accountability on these crimes against any country in the world, and I am very confident in making that statement.

David Wallace, Edelman Public Relations: You had said in your speech that you had hoped that EU bureaucrats would stop...

Bolton: Senior EU officials.

David Wallace: Senior EU officials would stop, I guess, trying to force or coerce new EU countries from not signing bilateral Article 98 agreements with us. Is there an "or else" there? Is there some sort of sanction that we would do if this activity does not stop?

Bolton: No, I think what we’re trying to do is show to the Europeans that their view of Article 98 is unnecessarily constrained and as of this moment with 70 other countries that have agreed with us in our interpretation of Article 98 I think it’s clear from just a simple legal analysis that there’s more than one permissible reading of Article 98. Accordingly, a decision to enter into an Article 98 agreement with us or not is fundamentally a political decision, not a legal decision. That’s why we’ll continue our bilateral negotiations with individual EU members in the hope and I think, ultimately, the expectation that we will conclude acceptable Article 98 agreements with them.

John Bolton is a senior fellow at AEI.

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