Jim Lobe

WASHINGTON, Nov 30 2006 (IPS) — In a new, if largely unheralded, sign of a growing pragmatism in U.S. foreign policy, President George W. Bush this week waived Congressional restrictions on economic aid for countries that have refused to sign bilateral immunity agreements (BIAs) exempting U.S. citizens from the jurisdiction of the International Criminal Court (ICC).

The waivers, which came in the form of a memo from Bush to Secretary of State Condoleezza Rice, came just six weeks after Congress quietly lifted bans on U.S. military training for countries that have ratified the 1998 Rome Statute that created the ICC and refused to sign BIAs.

The two actions suggest that the administration, which had used the BIAs to wage a three-year campaign to undermine the ICC, has reversed course, apparently concluding that the effort has proven counter-productive to its larger foreign-policy goals, as the campaign’s critics had warned when it was launched in 2002.

“President Bush’s waiver demonstrates that the U.S. government is beginning to re-evaluate its counter-productive BIA policy and work toward separating its ideological opposition to the ICC from its foreign-aid policy,” said Golzar Kheiltash, a legal analyst at Citizens for Global Solutions (CGS), a lobby group that has supported the ICC.

“By issuing this waiver,” she said of this week’s decision to permit tens of millions of dollars in “Economic Support Funds” (ESF) to flow to all but two countries that had rejected U.S. demands to sign BIAs, “the administration has taken another step in the right direction, namely recognizing that strong-arm tactics only serve to alienate U.S. friends and allies.”

The decision to issue the waivers on both military training and ESF aid represent major victories by the uniformed military and the State Department, respectively.

In repealing the ban on the International Military Education and Training (IMET) eligibility for countries that ratified the Rome Statute and refused to sign BIAs with Washington, Congress was responding to explicit appeals by U.S. military commanders overseas eager to establish close ties with their foreign counterparts.

“We want to be in this hemisphere the partner of choice,” Gen. John Craddock, the then-chief of the U.S. Southern Command (SouthCom) told lawmakers during testimony in early October regarding the American Servicemembers’ Protection Act (ASPA), the 2002 law that introduced the ban. “If we can’t do that (because of the ban), then we are handicapped.”

He warned that China was taking advantage of the ban by offering military training to Latin American officers.

ASPA, which was sponsored by former Sen. Jesse Helms and strongly supported by aggressive nationalists in the Bush administration, notably Vice President Dick Cheney and the current U.S. ambassador to the U.N., John Bolton, was the first of two legislative measures designed to undermine international support for the ICC.

While it exempted NATO and other close allies of the U.S., such as Israel, Japan and Australia, the ASPA banned certain kinds of military-aid programmes, notably IMET and financing to buy U.S. weapons systems (FMF), for those countries that ratified the Rome Statute and refused to sign BIAs – sometimes called Article 98 agreements – under which they promised not to submit U.S. soldiers or citizens in their custody to the ICC’s jurisdiction.

Apparently in hopes of increasing pressure to sign BIAs on the several dozen countries, mostly in Latin America, the Caribbean, and Africa, affected by ASPA, the Republican-led Congress passed a second law, the so-called Nethercutt Amendment, in 2005. Under its provisions, the same countries could not receive ESF aid, much of which has been used to support democratisation, rule-of-law, and poverty-alleviation projects. Some 70 million dollars in ESF aid to more than dozen countries was denied last year.

The ICC, whose mandate is to investigate and prosecute war crimes, crimes against humanity, genocide, and similar atrocities, began operations at The Hague in 2002. Despite Washington’s opposition, the Rome Statute has been signed by 139 countries and ratified by 104, including all members of the European Union (EU).

The Bush administration, which launched its campaign against the ICC in May 2002, after renouncing former President Bill Clinton’s signing of the Rome Statute, has argued that, given Washington’s global military predominance and “unique responsibilities” for maintaining international peace, its soldiers and officials would be particularly vulnerable to “politically-inspired prosecutions” by the ICC.

During the 2004 presidential campaign, Bush himself repeatedly denounced the court, which he declared would be dominated by “unaccountable judges and prosecutors”. The ICC chief prosecutor, Luis Moreno-Ocampo, has since rejected several complaints filed against U.S. actions in Iraq.

But despite the passage of the Nethercutt Amendment some months later, the administration’s view of the ICC appears to have mellowed.

Early in Bush’s second term, for example, the administration surprised its extreme-right supporters by agreeing to a U.N. Security Council resolution authorising the ICC to investigate war crimes in Sudan. It has also been increasingly generous in issuing waivers for both IMET and ESF to target countries.

In early October, it granted waivers for IMET training on every country except Venezuela – with which relations have become increasingly strained for unrelated reasons – and followed that up by supporting the repeal of the IMET ban two weeks later.

This week, Bush granted ESF waivers to 14 countries – Bolivia, Costa Rica, Cyprus, Ecuador, Kenya, Mali, Mexico, Namibia, Niger, Paraguay, Peru, Samoa, South Africa and Tanzania – that had previously been affected by the Nethercutt ban. The only countries that were not granted waivers were Venezuela and Ireland where ESF money has been used to support the peace process in Northern Ireland.

Despite the White House’s insistence that it “will continue to pursue” BIAs with hold-out countries, these latest moves mark key victories for both military commanders and the State Department.

Indeed, last March, Secretary of State Condoleezza Rice described cutting off aid to allies in the “global war on terrorism” as “sort of the same as shooting ourselves in the foot”. Her legal adviser, John Bellinger, has also spoken out a number of times against the two laws.

Human rights activists said they were particularly pleased with Bush’s decision to grant so many waivers on the ESF ban, particularly after Congress repealed the IMET prohibition. “Reinstating military aid, but not economic assistance around this issue was ludicrous,” Joy Olson, director of the Washington Office on Latin America (WOLA), told IPS Thursday. “We are happy to see that the administration has corrected this gross error in judgement.”

At the same time, activists called on the administration to press for repeal of both laws altogether, rather than to continue its practice of granting one-year waivers.

“The U.S. must abandon its underlying policy of penalizing other countries simply for being members of the ICC,” noted CGS, which noted that many of the affected countries had suffered gross human rights abuses in the past.

“The Court is of utmost importance to these countries and is widely viewed as the only impartial, effective legal institution capable of providing justice to victims of war crimes, genocide, and crimes against humanity.”