UN Report Urges Nations to Support ICC While U.S. Opposition Increases

December 2, 2004 -- The rift between the U.S. and the international community over the International Criminal Court grew deeper in December as two long-awaited reports were finalized: the UN high-level panel report, “A more secure world: Our shared responsibility,” and the U.S. Congress' FY2005 budget report.

The UN report called for all nations to sign, ratify and support the Rome Statute.  It praised the significance of the ICC, declaring that “[i]n the area of legal mechanisms, there have been few more important recent developments than the Rome Statute creating the International Criminal Court.”

+READ EXCERPTS OF REPORT REFERENCING ICC 

The UN report went on to highlight the Court’s potential for positive influence if properly supported.  “In cases of mounting conflict, early indication by the Security Council that it is willing to use its powers under the Rome Statute might deter parties from the gravest violations of the laws of war,” concluding that “the Security Council should stand ready to refer cases to the International Criminal Court.”

In contrast with the UN panel’s endorsement, the U.S. administration has continued to show contempt for the Court and for nations that support it.  In December, this disdain manifested itself in Congress' FY2005 budget report, which included the Nethercutt Amendment to the omnibus appropriations bill, imposing stringent limitations on economic aid to countries that have ratified the Rome Statute but have not entered into a bilateral immunity agreement with the U.S. In 2002, the American Servicemembers' Protection Act (ASPA) withheld U.S. military aid from nations who refused to sign such agreements.  Following in ASPA’s footsteps, the Nethercutt amendment withholds Economic Support Funds from those, and other, countries.  The amendment does not exempt NATO and major non-NATO allies unless sanctions are specifically waived by the President, a waiver power the President has not used to ease military aid restrictions on allies imposed by ASPA.

With a budget of over $2.5 billion, the Economic Support Fund promotes the foreign policy interests of the U.S. by providing assistance to key allies for initiatives including peacekeeping, anti-terrorism measures, democracy-building and drug interdiction. As a result of the Nethercutt amendment, 11 countries including Jordan, Ecuador, Paraguay, Peru, Venezuela, and Cyprus, stand to lose $529 million in funding, and over 50 nations would be rendered ineligible for support because they  are parties to the International Criminal Court and have declined to sign bilateral immunity agreements with the U.S. These countries have concluded that that they are not legally permitted to sign such agreements because they are broader and more extreme than Article 98 of the Rome Statute allows.

Jordan, a key U.S. ally in the Middle East, could be seriously affected by the Nethercutt amendment if the President does not issue a waiver, which will withhold $250 million intended to help "promote economic growth and support healthcare, education, and governance reforms." Jordan, whose UN ambassador is also the President of the ICC's Assembly of States Parties, firmly believes that it cannot sign a bilateral immunity agreement that would put it in breach of the ICC treaty.

The Nethercutt amendment, despite its stated purpose, does not increase protections for U.S. troops.  The majority of affected countries have standing SOFAs (Status of Forces Agreements) with the U.S. that expand U.S. jurisdiction to include all U.S. personnel within their territory, rendering bilateral immunity agreements unnecessary.  These nations have already lost millions in U.S. military assistance over their support for the ICC. Cutting more aid will not change their minds, but it will undermine diplomatic relations and weaken our ability to cooperate with them at a time when such relations are key to the global effort against terrorism and other U.S. priorities.

For more information:

• Fact sheet: Nethercutt Amendment - Cutting Off Our Nose to Spite Our Face (PDF) (includes specific programs and countries that would be affected)

• House Roll Call Vote on the Nethercutt Amendment

• Citizens for Global Solutions' press release on the Nethercutt Amendment (July 16, 2004)

• Table of military aid already being withheld from ICC member countries (PDF)

• Information on the legal debate over bilateral immunity agreements and Article 98 of the ICC's statute

• More about bilateral immunity agreements

Fact Sheet: Nethercutt Amendment - Cutting Off Our Nose to Spite Our Face (impact of sanctions) (PDF)

More on Bilateral Immunity Agreements