Global Policy Forum

The White House plays hardball with foreign aid to ensure
that citizens are shielded from the International Criminal Court.

By Paul Richter

In their frequent visits to Colombia, top U.S. officials couldn't be more supportive of the government, repeatedly describing it as a friend and key ally in the war on drugs. But when Colombia refused to exempt all Americans from the jurisdiction of the newly formed International Criminal Court, U.S. officials took a hard line. They prepared to cut off all $150 million of the Pentagon's annual aid to Bogota, despite Colombia's protest that doing so would seriously set back its battle against drug gangs. Faced with the threatened cutoff, Colombia recently relented and said it would sign an agreement with the United States not to turn over Americans to the international court. The confrontation underscored the Bush administration's unyielding stance on an issue that has put it at odds for more than a year with some of its closest allies. The dispute has again raised charges that the administration is pursuing a go-it-alone approach to foreign affairs, and that it is steamrolling weak and dependent countries to get its way.

The tribunal, founded in 1998 by an international treaty and ratified by 90 nations, is meant to be the world's first permanent war crimes court. Though the Clinton White House supported the court in principle, the Bush administration views it as a threat, because it has the power to prosecute the citizens of any nation without appeal to national governments or the United Nations. Under a federal law passed a year ago, any nation refusing to sign an agreement exempting U.S. citizens from the court's jurisdiction risks losing U.S. military aid. The Bush administration has rigorously applied the law.

The court's declared mission is to handle the most serious cases of war crimes, genocide and crimes against humanity, where national courts are unable or unwilling to do so. The international court also can take cases in which it decides that the national court prosecution has been insufficient. The Bush administration believes it is particularly vulnerable to politically motivated trials in such a court because U.S. troops operate in more than 100 countries. The court will be based in The Hague, Netherlands, staffed by judges and prosecutors supplied by member states. The European Union and other key U.S. partners support the court, but the Bush administration, condemning it as illegitimate, is prodding countries to sign bilateral exemption agreements, and has begun cutting aid -- even to friendly nations -- if they refuse.

The vigorous campaign has outraged some of the court's supporters, who say the United States is undermining the court before it hears its first case, later this year. "This is another example of the superpower acting as if whatever it said, goes," fumed a senior diplomat from one close ally, who asked not to be named.

The dispute has trapped many Eastern European countries in an awkward position between the European Union, which they aspire to join, and the United States, whose backing they also want as part of their effort to enter NATO. The Europeans maintain that no European country should sign an agreement with the United States that would undermine the authority of the international court. The Bush administration has publicly protested the EU's position. Lincoln Bloomfield, assistant secretary of state for political-military affairs, recently complained that the EU was urging Eastern Europe "with ever increasing intensity" to stick to the EU's position on the exemption issue. In a Sept. 17 speech in New York, Bloomfield charged that the EU had broken a promise to Secretary of State Colin L. Powell not to block U.S. efforts to obtain exemptions.

Among those who have lost aid are 10 nations that were members of the coalition that took part in the war in Iraq with the United States -- including such "new Europe" governments as Bulgaria, Latvia, Lithuania, Estonia, Slovakia and Slovenia. The U.S. campaign is "a triumph of narrow ideology over the national interest," said Tom Malinowski, Washington advocacy director of Human Rights Watch. "The United States is begging countries to help America, yet cutting off assistance designed to help them," he said.

Not so, insist U.S. officials. They say they have worked hard to maintain good relations with allies as they have pressed to obtain the exemptions. "We have not been pressuring countries," said John R. Bolton, undersecretary of State for arms control and international security. He said the United States is making steady progress with other countries, pointing out that 63 countries have signed bilateral deals. Several dozen more will do so in the weeks ahead, Bolton predicted.

A key issue in dispute is how broad the U.S. exemption from court jurisdiction should be. Many countries are willing to grant exemptions for U.S. troops and civilians on official missions; many countries routinely grant such exemptions for peacekeepers. But they don't want to extend exemptions to all Americans, fearing it could put U.S. citizens employed as mercenaries, for example, beyond the reach of prosecution. The Bush administration, however, insists that all Americans should be exempt -- including government officials, business people, representatives of non-governmental groups and journalists.

Bolton said it was only a matter of fairness that, if U.S. officials should be exempt, so should other U.S. citizens. "We think our judicial system is perfectly capable of handling all of these cases," he said. Like many foreign policy issues, the battle against the court is controversial inside the administration, with some officials wanting the government to aggressively pursue the issue and others fearful it will damage other diplomatic efforts. Some U.S. officials acknowledge privately that asking for a U.S. exemption from the tribunal is tough when the United States has been a leader in organizing war crimes tribunals for defendants from the former Yugoslavia, Rwanda and Liberia. "This has been very, very unpopular with the diplomats," said one State Department official. Since formally withdrawing U.S. support for the court in May 2002, the administration has taken a number of steps to put Americans beyond its reach.

In June, U.S. diplomats threatened to stop participating in U.N. peacekeeping missions worldwide unless the Security Council granted Americans permanent immunity from prosecution. The United States won a one-year exemption after a skirmish that saw even Britain, its most dependable ally, on the other side of the issue. The main U.S. effort, however, has been in securing bilateral agreements and cutting off aid to countries refusing to sign them. Under the law, the White House could opt not to cut off aid. But few such waivers have been issued.

On July 1, the United States held up $48 million in military aid earmarked for 33 countries before the end of the fiscal year. An additional $110 million is at risk in the fiscal year that begins Oct. 1, congressional aides said. Although the sums involved are not large compared with the entire defense budget, the money means a lot to the countries -- most of them small -- that have been losing it.

Bulgaria, which has agreed to send 500 troops to Iraq, allowed U.S. forces to use its bases for operations during the Afghan and Iraqi wars. As a nonpermanent member of the U.N. Security Council, the country took the U.S. side against most of Europe over the Iraq war. Yet Bulgaria faces the loss of $10 million in aid this week, including money that was to cover the cost of protecting U.S. troops during their stay in the country. Croatia, which has $5.8 million at risk in 2004, also supported the Iraq war effort and offered the United States use of its air space. Its aid was in part to help it upgrade its military so it can join NATO, a goal the United States supports. But senior Croatian officials have said they can't grant the United States an exemption from war crimes rules when the United States has been pushing Croatia for years to surrender former officials to the Yugoslavia war crimes tribunal. "One can hardly expect us to extradite our people and at the same time refuse to extradite citizens of the United States or any other country," said Zarko Plevnik, a spokesman for the Croatian government.

The threatened loss of aid put Colombian President Alvaro Uribe in a difficult position. Although the $150 million represented only part of the total 2004 U.S. aid package of $690 million, it was badly needed to defend the country's main oil pipeline -- an important revenue producer -- from frequent rebel attacks. At the same time, Uribe could not afford to have it appear that he was bowing to pressure from the United States. "Aid cannot be aid with petty conditions or with pressures," he told the Colombian newspaper El Espectador in July. Announcement of the bilateral deal unleashed a storm of protest from the country's powerful human rights community. Jimmy Chamorro, a senator who led the campaign in Colombia to ratify the court treaty, assailed Uribe for not consulting with the country's congress and said the government was "defying and violating" the national constitution.

Colombian officials strongly defended their agreement, saying it would provide an exemption only in the unlikely circumstance that an American who is not a U.S. soldier, diplomat or contractor commits a crime in a third country and then enters Colombia. Other Americans who are not on official missions to the country would be tried in Colombian courts, they said. "No one is getting down on his knees in order to sign a nation-to-nation agreement," Luis Camilo Osorio, the Colombian attorney general, told reporters. Staff writer T. Christian Miller in Bogota contributed to this report.

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