New York Times
August 18, 2005
BOGOTÁ, Colombia, Aug. 18 - Three years ago the Bush administration began prodding countries to shield Americans from the fledgling International Criminal Court in The Hague, which was intended to be the first permanent tribunal for prosecuting crimes like genocide.
The United States has since cut aid to some two dozen nations that refused to sign immunity agreements that American officials say are intended to protect American soldiers and policy makers from politically motivated prosecutions.
To the Bush administration, the aid cuts are the price paid for refusing to offer support in an area where it views the United States, with its military might stretched across the globe, as being uniquely vulnerable.
But particularly in Latin America and the Caribbean, home to 12 nations that have been penalized, the cuts are generating strong resentment at what many see as heavy-handed diplomacy, officials and diplomats in seven countries said.
More than that, some Americans are also beginning to question the policy, as political and military leaders in the region complain that the aid cuts are squandering good will and hurting their ability to cooperate in other important areas, like the campaigns against drugs and terrorism.
In testimony before Congress in March, Gen. Bantz J. Craddock, the commander of American military forces in Latin America, said the sanctions had excluded Latin American officers from American training programs and could allow China, which has been seeking military ties to Latin America, to fill the void.
"We now risk losing contact and interoperability with a generation of military classmates in many nations of the region, including several leading countries," General Craddock told the Senate Armed Services Committee.
Most of the penalties, outlined in a law that went into effect in 2003, have been in the form of cuts in military training and other security aid. But a budget bill passed in December also permits new cuts in social and health-care programs, like AIDS education and peacekeeping, refugee assistance and judicial reforms.
Though the amounts are a pittance for Washington, their loss is being sorely felt in small countries.
In an outburst, in June, President Alfredo Palacio of Ecuador told a Quito television station that he would not yield to Washington. "Absolutely no one is going to make me cower," he said. "Neither the government, nor Alfredo Palacio nor the Ecuadorean people need to be afraid."
His nation has one of the region's largest American military bases and has become increasingly important as a staging ground for American surveillance of everything from the cocaine trade to immigrant smuggling. Still, Ecuador has lost $15 million since 2003 and may lose another $7 million this year.
When the International Criminal Court's 18 judges took their oaths in March 2003, the tribunal was backed by 139 countries and heralded by supporters as the most ambitious project in modern international law.
It was intended to replace the ad hoc tribunals addressing atrocities in Yugoslavia, Rwanda and Sierra Leone. This year the Security Council, with the United States abstaining, gave the court approval to prosecute cases related to atrocities in Darfur, Sudan.
Many legal scholars say it is unlikely that Americans would ever face the court because its focus is on the most egregious of war crimes, like systematic genocide, and the court is intended to try cases from countries where the judicial systems are unable or unwilling to handle such cases. There are also safeguards that would give the United States' own military and civilian courts jurisdiction over Americans.
But Bush administration officials, including some at the State Department, assert that the court could still move against American officials.
"The exposure faced by the United States goes well beyond people on active duty and it includes decision-makers in our government," said a high-ranking State Department official who was authorized to speak about the policy but only if he was not identified. "We're not hallucinating that our officials are at risk."
"The idea is that the court gets to second-guess if it's not satisfied," the official added.
Bruce Broomhall, director of the center for the study of international law and globalization at the University of Quebec in Montreal, disagrees. He noted that for the court to act against a suspected war criminal, the prosecutor must satisfy the judges that the host country was "shielding the individual concerned from criminal responsibility."
Still, Mr. Broomhall said, there is "a glimmer" of an argument behind the administration's concern. "If the crime is sufficiently organized and intense and a crime against humanity - if you get past that first threshold - it's potentially a crime within the jurisdiction of the court," he said.
Others, like Richard Dicker of Human Rights Watch, acknowledge that there are countries that may want to use the court "as a political battering ram."
"What's in dispute," said Mr. Dicker, director of international justice for the group, "is what kinds of safeguards are necessary to prevent these kinds of distortions. The United States has adopted a solution that's inimical to the rule of law, that says because we're the most powerful state in the world, we'll create a two-tiered system of justice."
George Nethercutt, a former Republican congressman from Washington State whose amendment calling for cuts in economic aid was approved in December, acknowledged that the possibility an American would face charges was small. But he said that pushing countries to sign the agreements did not "seem like a disproportionate expectation" because aid is not an entitlement.
Opponents in the American Congress, though, call the administration's efforts part of a "hyper-precautionary" policy that does more harm than good.
"We're constantly pressuring other countries, and it comes to a point where it provokes a backlash and hurts us, hurts us militarily, hurts our commercial relationships, hurts us politically," said Representative Bill Delahunt, a Massachusetts Democrat.
Administration officials note that more than 100 immunity agreements have been signed. But supporters of the court say that most have been signed by poor countries heavily dependent on Washington for aid; NATO allies like Britain and Germany have been exempted from the penalties, as well as other wealthy countries like Australia and Japan.
In about two-thirds of the countries that have signed, legislative bodies have not ratified the agreements, raising questions about their legality, said the Coalition for the International Criminal Court, which supports the tribunal.
In all, 53 countries, from Kenya to Ecuador to some European nations, have declined to sign the agreements, saying Washington's effort undermines their commitment to the court. Not all have been penalized and some, like Paraguay and Dominica, later yielded to American pressure and signed agreements.
In Latin America the immunity agreements, and the sanctions, have been especially hard to swallow for left-leaning governments who have come to power by rejecting American-backed economic policies.
"It's a contradictory policy and it's ungrateful," said Luis Hernández, a retired Ecuadorean Army colonel who was educated at the United States Army War College.
American budgetary records show that Uruguay, whose new left-leaning government has vocally declined to sign an immunity agreement, has lost $1.5 million since 2003. Costa Rica has lost about $500,000, and unstable Bolivia has lost $1.5 million.
In addition, the United States International Military Education and Training program, which pays for Latin American military officers to study in the United States, has cut its rolls by 770 officers a year, from an average class of 3,000, military officials said.
Most nations that have lost money are cash-strapped, like Dominica, a Caribbean island which lost $400,000 and was unable to operate its only Coast Guard boat for two years. That meant no drug patrols or searches for fishermen lost at sea, said Crispin Gregoire, Dominica's ambassador to the United Nations.
"We were reeling from the impact of lost aid, and our economy was not in the greatest shape," he said. "The government decided to yield and we ended up signing."
Peru, a close Bush administration ally, has lost about $4 million "You feel the cuts, yes," said Congressman Luis Ibérico, president of the committee that oversees military spending and the antidrug campaign. "These are small amounts, but nevertheless, they're necessary to support our military personnel."
Painful as the cuts are, many countries say they will not budge before American pressure.
"We will not change our principles for any amount of money," said Michael I. King, the Barbados ambassador to the Organization of American States. "We're not going to belly up for $300,000 in training funds."
Many officials argue that existing treaties already protect American soldiers. The new agreements go too far, they say, by adding protections for ordinary Americans, like tourists, and non-American contractors who work for American companies.
Here in Colombia, where the American military has rotated 8,000 soldiers in the past five years as part of its largest mission in the region, a new immunity agreement two years ago has upset some officials. Colombia already had a 1974 treaty protecting American soldiers from criminal charges.
"These treaties say that everyone in Colombia must respect the law, Indians, Chinese, the Colombians," said a Colombian senator, Jimmy Chamorro, who considers them illegal. "Everyone except the Americans."