Global Policy Forum

By Jim Lobe

In a new effort to exempt the United States from international law, the Republican leadership of the House of Representatives has approved a measure that would ban certain kinds of economic aid U.S. allies if they fail to sign a bilateral accord forbidding them from transferring U.S. citizens or foreign nationals working for the United States to the jurisdiction of the one-year-old International Criminal Court (ICC).

The so-called Nethercutt Amendment, named after its chief sponsor, Washington State Rep. George Nethercutt, the provision was attached to the fiscal year 2005 foreign aid bill Thursday by a vote of 241-166 despite the fact that the Bush administration and the chairman of the House Foreign Operations Subcommittee, Rep. Jim Kolbe, opposed it.

The right-wing Republican House leadership, however, urged its passage, with House Majority Leader, Tom DeLay, describing the ICC, which is backed by nearly 100 countries, including Canada, and all of Washington's traditional European allies except Turkey, as "UN Secretary General) Kofi Annan's Kangaroo Court" whose legitimacy was "laughable." "The ICC presents a clear and present danger to the war on terror and to Americans that are fighting it all over the world," said DeLay, one of Congress' staunchest foes of the United Nations and other multilateral institutions.

Backers of the ICC, which claims jurisdiction over cases involving war crimes, crimes against humanity, and genocide in countries that have signed the 1998 Rome Statute, denounced the measure in strong terms noting, in particular that it could cut aid, in some cases counter-terrorism assistance, to more than 50 countries, some of which are considered key partners in the "war on terror." "We would have to cut off all the economic assistance to Jordan," said Kolbe. "I don't see how that will help us in the war against terrorism." "This measure targets democracies that uphold the rule of law and work alongside the U.S. to further our foreign-policy priorities, said Don Kraus, executive vice president of Citizens for Global Solutions (CGS). "We should not be punishing them over agreements that are not necessary do not provide any additional protection for our troops than they already have through existing (bilateral) Status of Forces Agreements (SOFAs) and Status of Mission Agreements (SOMAs)" for U.S. soldiers and diplomats."

Although the measure must still be approved in the Senate and signed by Bush to become law, the Nethercutt Amendment is virtually certain to renew criticism by U.S. allies of Washington's unilateralism. The House move coincided with the administration's announcement that, for the third year running, it would not contribute any of the 34 million dollars approved by Congress earlier this year for the UN Population Fund (UNFPA), another multilateral program strongly backed by Washington's traditional allies.

It also follows the administration's decision two months ago to cut off military aid to about three dozen countries that have ratified the Rome Statute and refused to sign a bilateral immunity agreement (BIT) with the U.S. that would guarantee that they would not turn over to the ICC U.S. citizens or foreign nationals working for the U.S. to the ICC.

Some 95 countries, including virtually all of Europe, and most of the Caribbean, Latin America, and a substantial number of African states have ratified the statute which took formal effect in 2002 but formally opened for business in The Hague, the Netherlands, just over a year ago. The ICC prosecutor has since agreed to investigate alleged war crimes in the Democratic Republic (DRC) and Uganda. In one of his last acts as president, Bill Clinton signed the Rome Statute in late 2000. In May, 2002, however, the Bush administration formally renounced his signature and launched a campaign to persuade as many countries as possible - about 90 to date, according to the State Department, to sign BITs. It also demanded that the UN Security Council grant an across-the-board exemption to U.S. troops and officials participating in UN peacekeeping missions from the ICC's jurisdiction, a demand that was granted despite growing resentment and anger in both 2002 and 2003. In the wake of the prison scandals touched by photos of abuses committed by U.S. soldiers in Iraq and a strong public statement against renewing the exemption by Annan himself, the U.S. withdrew its bid for extending the exemption for a third year.

In a symbolic move, however, it withdrew nine soldiers and observers from UN-backed missions in Ethiopia, Eritrea, and Kosovo. "The real problem would be if the United States decides to go beyond the rhetorical point of withdrawing a few soldiers and starts targeting funding or other support for UN peacekeeping missions," Heather Hamilton, CGS' vice president for programs, told OneWorld. The administration argues that the ICC lacks adequate safeguards to protect against "politically motivated" prosecutions, and, given Washington's unique responsibility to maintain global security and the vast number of countries where U.S. forces operate, its soldiers and officials will be particularly tempting targets for ambitious prosecutors. Backers of the ICC, including Britain, Washington's staunchest ally, have insisted that the U.S. has nothing to fear since the ICC may act only when the responsible country is unable or unwilling to do so.

While the administration's campaign against the ICC and its efforts to win exemptions have clearly alienated many of its friends and allies, especially in Europe, Latin America, and Africa, they have not gone as far as the House is now pushing. The military-aid cuts implemented earlier this year, for example, did not apply to Washington's NATO partners or other close allies. But, under the Nethercutt Amendment, NATO members, as well as some three dozen other countries, including Brazil, Ecuador, Paraguay, Bolivia, Peru, Costa Rica, virtually all of the English-speaking Caribbean countries, South Africa, Poland, Cyprus, among others, would be ineligible to receive Economic Support Funds (ESF), a particular category of economic assistance available to strategic U.S. partners.

Among the most affected would be Jordan, a key Middle East ally that receives $250 million in ESF each year; four of five Andean countries; the Caribbean states that receive $9 million in part to bolster immigration and border security; and South Africa which will lose million of dollars in anti-terrorism training on top of the $7.6 million it has already forfeited in military aid due to its strong support for the ICC; Ireland, which will lose $8.5 million to promote the peace process in Northern Ireland; and Cyprus, which will lose $13.5 million to support peace between its Greek and Turkish communities. The target countries have maintained that signing a BIT with the U.S. would violate their own undertakings in the Rome Statute.

Hamilton pointed out that cutting aid to South Africa makes little sense in light of Washington's plans to rely heavily on Pretoria in providing troops for new U.S.-backed peace-keeping training and operations in Africa. "The House's action is particularly ludicrous," she said, "given the fact that the Court has been in existence for two full years now, and not only has the prosecutor taken up some of the most appalling crimes against humanity in the Congo and Uganda, but he's also publicly rejected allegations against the U.S. and Britain in Iraq." "This latest sanction stands to re-ignite trans-Atlantic tensions that are only just healing after the Iraq war, undermines the effectiveness of U.S. counter-terrorism measures, and serves no real purpose."