Blanket Immunity
Bush Twists Arms to Evade Court [ICC]
By Amitabh Pal
The Progressive
January 2007

For the past four years, the Bush Administration has systematically set out to exempt the United States from the purview of the International Criminal Court. Using bullying tactics, it has often gotten its way. But at a cost.

President Bush's disdain for the International Criminal Court has been clear all along. His Administration did everything in its power to sabotage its creation.

Having failed in that effort, it set out to twist the arms of governments the world over to sign bilateral agreements ensuring that they would not send U.S. personnel up to the court for prosecution.

"Our ultimate goal is to conclude [these] agreements with every country in the world, regardless of whether they have signed or ratified the ICC, regardless of whether they intend to in the future," John Bolton, then-undersecretary of state for arms control and international security, remarked in 2002.

Today, about 100 countries have abided by the Bush Administration's wishes, but more than fifty countries have publicly refused, including two dozen that have lost aid in the process.

These agreements that the Bush Administration has been pressuring countries to sign exempt all U.S. citizens-including servicemembers and government officials-from being brought before the International Criminal Court, without a promise that the United States would itself prosecute its citizens for any crimes committed. To maintain a façade of give-and-take, these agreements are often reciprocal.

"Under these agreements, all U.S. nationals and non-nationals employed by the U.S. government must be granted blanket immunity;" says Golzar Kheiltash, legal analyst with Citizens for Global Solutions. "So a Kenyan mercenary in Kenya hired by the U.S. government could not be handed over to the ICC."

This diplomatic effort has been run by the State Department at the behest of the White House.

"Bolton has orchestrated the campaign with the support of Cheney," says John Washburn, director of ICC Programs at the United Nations Association of the United States of America.

The old Republican Congress passed legislation to punish countries that did not sign on the dotted line, even when doing so undermined other foreign policy goals.

Two major pieces of legislation ensured this. The American Servicemembers' Protection Act halts particular kinds of military aid to countries that refused to toe the Bush Administration line. And the Nethercutt Amendment cuts off certain types of economic aid for countries unwilling to sign such agreements, including assistance related to disability issues, the promotion of democracy, and the curbing of human trafficking.

"The U.S. administration has pressured states worldwide, including its closest allies, to enter into bilateral agreements, to compel them not to surrender U.S. nationals and persons working for the U.S. government to the ICC," Human Rights Watch stated in December 2005. "Indeed, the United States has threatened to suspend both military and economic assistance for states ... that refuse to enter into such agreements."

The heavy-handed tactics of the Bush Administration have increased antagonisms and sowed resentment, especially in Latin America.

"In my own fifty years' experience of watching U.S.-Latin American relations, I have never known an Administration as disliked as this one," says Larry Birns, director of the Council on Hemispheric Affairs.

"The U.S. has had to deploy muscle to achieve its objectives," adds Birns. "It has had to go mano a mano and tell these countries that it is a high priority for the Bush Administration that they waive the right to bring U.S. personnel before the International Criminal Court for prosecution."

Take Costa Rica.

"We may be poor, but we have our dignity;" then-Costa Rican Foreign Minister Roberto Tovar said in 2005. He stated that this agreement was "offensive" and that his country would "not undermine the ICC." For its audacity; the country lost more than $400,000 in training aid for its security forces.

Peru was no different.

"Peru will not sign any agreement that impedes it from submitting any country's citizens to the jurisdiction of the International Criminal Court," then-Foreign Minister Manuel Rodriguez remarked in 2004. "Peru rejects pressure from any country on its foreign policy." Peruvian lawmaker Javier Diez Canseco opined that "signing the agreement would represent sacrificing Peru's principles and sovereignty." As a result, Peru has lost $4 million in military funds and is slated to lose as much as $8 million in economic support funds for fiscal year 2006, including money for reforming democracy, combating narco-terrorism, and supporting the country's Truth and Reconciliation Commission.

Ecuador also held off Washington.

"Absolutely no one is going to make me cower," then-Ecuadorian President Alfredo Palacio told a television station in June 2005. "Neither the government, nor Alfredo Palacio, nor the Ecuadorian people need to be afraid."

"The U.S. has the democratic right to deny help to nations with which we do not have protection for our military," then-U.S. Ambassador to Ecuador Kristie Kenney said. But U.S. browbeating of successive Ecuadorian governments had the opposite of the intended effect, uniting the country's politicians against the United States. Ecuador has lost more than $17 million in military training and is scheduled to lose $7 million in economic assistance in the current fiscal year, including money for democracy-building and fighting corruption.

The Bahamas partially buckled.

Then-U.S. Ambassador to the Bahamas Richard Blankenship told the country's government in 2003 that if the Bahamas did not sign an agreement, a considerable amount of American aid would be withheld, including assistance for building an airport runway, important to a country heavily dependent on tourism. "You try not ever to be in the position to compromise by coercion on your sovereignty," said Prime Minister Perry Christie. Due to U.S. pressure, the Bahamas has still not ratified the International Criminal Court treaty.

Nearby, Barbados has stood its ground.

"We will not change our principles for any amount of money," Barbados's then-Ambassador to the OAS Michael King said in 2005. "We're not going to [go] belly up for $300,000 in training funds." Barbados lost $1.7 million in military aid for fiscal year 2005 as a result of its defiance.

Countries outside of Latin America have also disobeyed Washington.
Public figures and politicians across the board in Kenya condemned U.S. pressure. Kenyan member of parliament Paul Muite said that "America is being utterly immoral" in refusing to join the International Criminal Court and in trying to "blackmail" economically weak countries like Kenya. It "is really very, very insulting to our sovereignty, to our sense of self-respect," Muite added. Kenya has lost $7.8 million in aid, and stands to lose another $15 million in the current fiscal year.

Even before the November elections, there had been noises made both by Democrats and Republicans-including from within the Bush Administration itself-that punishing countries for not signing bilateral agreements is hurting the United States. They want to make sure the U.S. military maintains its traditional close ties with countries around the world (ties that have not always served the people of those countries well). The main concern: China is filling the strategic void left by the United States.

"Decreasing engagement opens the door for competing nations and outside political actors who may not share our democratic principles," General Bantz J. Craddock, head of U.S. Southern Command, testified before Congress in March 2006 in a clear allusion to China.

"We need, perhaps in this committee, to not only sound the alarm, but try to demand or suggest a much more comprehensive approach," affirmed Senator Hillary Clinton. "Because I think that's sending exactly the wrong signal, and it's provided a big opening."

"We have paid a very heavy price in countries where we have cut off these programs for various reasons," Senator John McCain joined in, referring to countries turning toward China for assistance. "And these relationships, obviously, are very vital if we're going to effectively conduct a war on terror."

Even Condoleezza Rice separately expressed reservations. On a trip to Puerto Rico, she said that the Administration's position was "in a sense, sort of the same as shooting ourselves in the foot." She added, "I think we just have to look at it. And we're certainly reviewing it, and we'll consult with Congress about it."

In early October, Congress passed an amendment to the American Servicemembers' Protection Act and Bush issued an executive order waiving the prohibition on military training aid for twenty-one nations, eleven of them in Latin America and the Caribbean.

This "signified recognition on the part of the Administration that it was harming itself by the prohibition on training aid," says Kheiltash.

Representative Eliot Engel, Democrat of New York, has introduced a bill to repeal the legislation that coerces countries into signing these bilateral agreements.

"The change in Congress brings high hopes," says Kheiltash. "The new members are less ideological, and we're hoping that the 110th Congress will bring about a total recall of the bilateral agreements campaign."


Amitabh Pal is the managing editor of The Progressive. He would like to acknowledge the help he received for this article from the Coalition for the International Criminal Court (www.iccnow.org).

Updated January 30, 2007

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