As America's reputation in the world dwindles to pathetic new lows,
and with the United States seeking international support in Iraq and
in the fight against terrorism, one might think this an inopportune
moment to bait some of our closest foreign allies into unnecessary
diplomatic rows. And yet, undeterred, Republican Representatives Tom
DeLay and George Nethercutt teamed up on the House floor, and on July
15 they successfully pushed an amendment to the Foreign Operations
Appropriations bill that would accomplish just that.
The "Nethercutt Amendment" would withhold economic assistance to
America's NATO partners, as well as to some major non-NATO allies
such as Jordan, South Africa, and Japan, until these countries sign
what are known as "bilateral immunity agreements" (BIAs) that exempt
U.S. nationals and foreign contractors from the jurisdiction of the
International Criminal Court (ICC).
Based in The Hague, Netherlands, the ICC is the first permanent court
capable of trying individuals accused of the most serious violations
of international humanitarian and human-rights law, namely genocide,
crimes against humanity, and war crimes. Fearful of the ICC's
potential to encroach on U.S. sovereignty, the Bush administration
and conservatives in Congress have tried to undermine the court ever
since the treaty that created the court entered into force in the
summer of 2002.
The Nethercutt Amendment, however, may be their most aggressive
attempt to limit the court. The bill would use the threat of
withholding aid from the State Department's Economic Support Fund to
blackmail a bevy of U.S. allies into granting Americans immunity from
prosecution before the ICC. So far, 92 countries have concluded a BIA
with the United States, but there are holdouts. Under the Nethercutt
Amendment, these countries would have their economic assistance
stripped bare.
So, for example, the $250 million Jordan is slated to receive in
fiscal year 2005 to support a wide array of governance reforms -- and
to reward that country for its continuing cooperation on Iraqi
reconstruction efforts -- would be conditional upon Jordan's
accession to a BIA.
Jordan, however, is unlikely to sign such an agreement. It has been
highly committed to the court since its inception, and Jordan's
Prince Zeid Ra'ad Zed al-Hussein is president of the ICC's governing
body, the Assembly of State Parties. Like many other countries that
adhere to the ICC, Jordan considers these immunity agreements illegal
under the obligations set forth in the Rome Statute that created the
court.
Furthermore, many ICC member states simply lack the political will to
enter into a BIA with the United States. For example, many eastern
European and Baltic countries see their future with the European
Union. They refuse to sign a BIA so as to curry favor with the rest
of Europe, which strongly supports the court.
According to Citizens for Global Solutions, a Washington-based
nonprofit that closely monitors the ICC, the Nethercutt Amendment
would also jeopardize regional initiatives to combat drug trafficking
and international organized crime, as it would slice $8 million from
a coordinated effort to reduce cocoa production and drug trafficking
in Peru; $9 million from the State Department's "third border
initiative," which helps Caribbean countries combat drugs, arms, and
human trafficking; and $1 million used to help South Africa combat
counterfeiting and financial crimes.
Insofar as the Nethercutt Amendment would force the United States to
abandon some of its most strategic allies at this particularly
vulnerable juncture in U.S. history, many foreign-policy heads have
questioned its wisdom. As one prominent human-rights expert put
it, "Is picking a gratuitous fight with our allies, at this moment,
really worth it?"
George W. Bush, however, is convinced that Americans will be the
targets of politically motivated prosecutions, and he has fought the
ICC since taking office. This relatively new diplomatic posturing is
simply the culmination of a long-standing Republican hostility to the
court that's grown shriller ever since Bill Clinton signed the Rome
Statute on December 31, 2000. In a letter to UN Secretary-General
Kofi Annan in May 2002, the Bush administration formally signaled
America's intent to "unsign" its name to the statute, a maneuver
virtually unheard of in U.S. diplomatic history.
The following month, former Senator Jesse Helms introduced the
American Servicemembers' Protection Act (ASPA), which is similar to
the Nethercutt Amendment except that it only affects military aid.
Additionally, ASPA includes broad exemptions for NATO partners and
major non-NATO allies, as well as presidential authority to waive it
on a country-by-country basis.
Since ASPA became law on August 3, 2002, Undersecretary of State for
Arms Control and International Security John Bolton has led the
administration's effort to secure as many BIAs as possible. Bolton,
whom Helms praised during the undersecretary's confirmation hearing
as "the kind of man with whom I'd want to stand at Armageddon," is
known for his rebukes of treaties that might place strictures on U.S.
sovereignty. To this end, Bolton's achievements include engineering
the administration's withdrawal of the Anti-Ballistic Missile treaty;
rejection of the Comprehensive Nuclear Test Ban Treaty, an
increasingly hard-line approach to North Korea; and opposition to the
inspection and verification requirements of the Biological Weapons
Convention. (Bolton would not respond to repeated requests for an
interview.)
Yet Bolton is perhaps most famous for his crusade against the ICC.
Under the threat of withholding military aid, Bolton's negotiating
team has strong-armed some 92 small countries into signing immunity
agreements with the United States. Other allies that have refused to
sign these agreements -- such as Brazil, Croatia, and Costa Rica --
have had their military aid stripped.
Sometimes this can be to awkward diplomatic effect. On July 1, 2003,
the Bush administration suspended military assistance to Latvia for
refusing to sign a BIA -- even though the country had joined
the "coalition of the willing" well before the invasion of Iraq. As a
result, for five months Latvian troops were supporting the U.S.-led
occupation even as the United States halted military-assistance
programs. Finally, in November 2003, Bush signed a waiver exempting
Latvia from ASPA.
Many of the 201 House Republicans and 40 Democrats who voted for the
Nethercutt Amendment are not staunch ideologues of the DeLay,
Nethercutt, and Bolton variety. Rather, as one Democratic Hill
staffer explained, "Most of the members who voted for this amendment
weren't rabid ICC haters. They just bought into Nethercutt and
DeLay's blatantly distorting rhetoric about the court."
During the floor debate on the amendment, DeLay took the opportunity
to serve up the kind of red meat that would play well in certain
constituencies, particularly in a time of war. After referring to the
ICC as "Kofi Annan's kangaroo court," he warned his colleagues of
what they might face in November if they voted against the
amendment: "If you want to go home to your constituents and tell them
that you think their tax dollars should go to foreign countries who
allow American soldiers to be imprisoned and shipped off to Brussels
without their constitutional rights, then by all means vote `no' on
the Nethercutt Amendment."
Despite DeLay's high-octane rhetoric, this bill has less to do with
U.S. soldiers than it does with anti-UN election-year posturing.
Status-of-force agreements and other bilateral arrangements already
guarantee full U.S. jurisdiction over American personnel abroad.
Furthermore, the ICC's own jurisdiction is highly limited; it defers
investigations to a national court, even if that court decides not to
prosecute.
Though the State Department officially opposes the Nethercutt
Amendment as currently worded, it would support a version of the bill
that gives the president the authority to exempt countries on a case-
by-case basis. As this bill moves to the Senate, there is still a
chance it will be killed in conference. Yet, as one Democratic
congressional press secretary warned me, the State Department
compromise raises the possibility that the amendment could still get
sneaked into an omnibus spending package.
One thing is certain: This won't be the last time that the radical
conservatives forsake better U.S. interests in their crusade against
the ICC.
Mark Goldberg is a Prospect writing fellow.
Copyright © 2004 by The American Prospect, Inc. Preferred Citation:
Mark Goldberg, "Court Jesters", The American Prospect Online, Sep 1,
2004. This article may not be resold, reprinted, or redistributed for
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