Global Policy Forum

The House of Representatives today passed the FY06 Foreign Operations Appropriations Act (H.R. 3057), containing a new version of last year's Nethercutt amendment. The provision in this year's bill, which was included in the committee draft, prohibits the U.S. government from granting Economic Support Funds (ESF) to countries that have not agreed to a bilateral agreement providing immunity for U.S. citizens from the International Criminal Court. (See full text of provision below.)

Congress established the ESF to promote economic and political stability in strategically important regions where the United States has special security interests. The funds are provided on a grant basis and are available for a variety of economic purposes, like infrastructure and development projects.

The draft contains new waivers (not present in last year's version) that allow the President to waive the restrictions on economic support funds for national security reasons. These waivers are similar to those in the American Servicemembers' Protection Act; however, the President has not used the national security waivers provided in previous legislation.

The legislation in which this language is included has been passed by the House, but not by the Senate. The Senate must pass its own version of the appropriations bill, which will then be reconciled with the House version in conference committee. It is unlikely that the Senate will include similar language, and it is possible that the House language may yet be removed during the conference committee negotiations.

The original amendment, attached to the FY05 Foreign Operations Appropriations Act, was introduced by Rep. George Nethercutt (R-WA) on July 15, 2004. The Amendment proposed cuts in Economic Support Funds for all parties to the ICC that refused to sign a bilateral immunity agreement (BIA) with the United States.

Countries that have been adversely affected by the Nethercutt amendment are confused by U.S. attempts to sabotage efforts to strengthen international law and eradicate impunity for war criminals. Through the Nethercutt Amendment, the United States imposes sanctions on its some of its closest allies in the war on terror and in the war against drug trafficking.

All of the countries affected are either democracies or in the process of consolidating democracy. They have refused to sign a BIA with the United States because it would put them in breech of their ICC treaty obligations. Many of the countries already have SOFA, or Status of Forces Agreements, or other diplomatic arrangements with the U.S. that reserve full U.S. jurisdiction over American personnel and officials operating on their territory.

U.S. insistence that state parties to the ICC sign a bilateral immunity agreement is rooted in illogical and unfounded fears. In recent months the ICC has demonstrated its ability to address humanitarian crises that threaten to destabilize entire continents. The ICC is investigating war crimes in the Darfur, Sudan following a referral by the U.N. Security Council. The ICC is also investigated war crimes in the war wracked regions of Northern Uganda and the Democratic Republic of Congo. U.S. attempts to undermine the ICC will damage the goodwill of our allies and subsequently undermine the success of the war on terror.

ESF Restriction as Passed by House of Representatives June 29, 2005:

LIMITATION ON ECONOMIC SUPPORT FUND ASSISTANCE FOR CERTAIN FOREIGN GOVERNMENTS THAT ARE PARTIES TO THE INTERNATIONAL CRIMINAL COURT

SEC. 574.

(a) None of the funds made available in this Act in title II under the heading "Economic Support Fund" may be used to provide assistance to the government of a country that is a party to the International Criminal Court and has not entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country.

(b) The President may, with prior notice to Congress, waive the prohibition of subsection (a) with respect to a North Atlantic Treaty Organization ("NATO") member country, a major non-NATO ally (Including Australia, Egypt, Israel, Japan, Jordon, Argentina, the Republic of Korea, and New Zealand), Taiwan, or such other country as he may determine if he determines and reports to the appropriate congressional committees that it is important to the national interests of the United States to waive such prohibition.

(c) The President may, with prior notice to Congress, waive the prohibition of subsection (a) with respect to a particular country if he determines and reports to the appropriate congressional committees that such country has entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country.

(d) The prohibition of this section shall not apply to countries otherwise eligible for assistance under the Millennium Challenge Act of 2003, notwithstanding section 606(a)(2)(B) of such Act.

Nethercutt Amendment as Included in 2004 in FY05 Appropriations:

"None of the funds made available in this act in title II under the heading "ECONOMIC SUPPORT FUNDS" may be used to provide assistance to the government of a country who is a party to the International Criminal Court and has not entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country."