US Presses Allies on War Crimes Court: Aid Wielded in Push for Immunity Pacts

27 August 2002

The International Criminal Court, established last month to bring war criminals to justice, has not yet gotten off the ground, but the Bush administration is already waging an extraordinary diplomatic campaign to persuade nearly 180 countries never to deliver an American to the court.

In capitals from Wellington, New Zealand, to Montevideo, Uruguay, U.S. diplomats have been insisting that the court cannot guarantee fairness to American soldiers and diplomats who could become targets of "politically motivated" prosecutions. In some countries, the administration is wielding a new law that permits cuts in military aid to governments that do not comply.

Only two nations - Israel and Romania - have signed pledges, but the full-court press is on, with Secretary of State Colin L. Powell, Secretary of Defense Donald H. Rumsfeld and national security adviser Condoleezza Rice all raising the issue with their counterparts. President Bush has made comments sharply critical of the court, while a high-ranking State Department official said a government's decision could affect its candidacy for membership in NATO.

The campaign is setting the administration at odds with many of its closest allies, notably Europeans and Latin Americans who spent years designing a court to punish the world's worst offenders. A number of them are angry that the United States - which withdrew from the court this year - is expending so much diplomatic energy in pursuit of special treatment.

Among the 78 countries that have ratified the treaty creating the court, the dispute has added to international skepticism about the administration's commitment to cooperative solutions. These doubts are surfacing again at a time when the administration is seeking to overcome the allies' opposition to Bush's proposed overthrow of Iraqi leader Saddam Hussein.

Court backers also contend that the administration is consciously undermining the credibility of the court, an allegation denied by U.S. officials, who said they have made no real or implied threats.

"The United States is exercising tremendous pressure. It does hurt the court day by day," one European diplomat said. "This is really a tiny, symbolic little court. It's more a symbol of hope in the fight against impunity than a genuine threat to the United States."

The administration threatened to shut down United Nations peacekeeping missions around the world unless the U.N. gave Americans immunity from ICC prosecution. When the European Commission instructed members and applicant countries this month not to reach separate deals with the United States, Powell wrote to European leaders, firmly advising them not to make it more difficult for the administration.

Powell wrote in mid-August that he could "not overstate" his concern and the president's: "The Administration, the American people and our Congress will not understand efforts to impede constructive, good-faith steps." He noted that some European governments had advised the Americans to seek such agreements.

The administration is focusing on the Europeans, believing that other countries may fall into line if pro-ICC governments sign the agreements. Another potential obstacle is a recent opinion by the European Commission's legal staff that the proposed U.S. agreements would be invalid under Article 98, the treaty clause cited by the Americans in seeking immunity deals, according to a source who has seen the confidential document.

A Washington-based foreign diplomat said many Europeans are mystified by the U.S. decision to push so hard. Persuaded that safeguards are ample and the odds of a politically motivated case against Americans are small, "most of the European countries feel there is not much to be concerned about here."

"I frankly do not know why the administration feels so strongly about it, whether it's ideologically driven or something they're genuinely worried about," said the diplomat, who has attended a State Department briefing session. He noted critics' arguments that "this is just another example of the United States choosing a somewhat, let's say, heavy tactic."

Close to home, the Canadian government has spoken out strongly against the U.S. campaign. "Democratic, law-abiding states have nothing to fear from the ICC, which has rigorous safeguards against frivolous investigations," Nancy Bergeron, a foreign ministry spokeswoman said.

The tempest concerns the world's first permanent war crimes tribunal, ratified by 78 countries and endorsed by 50 more. The court is empowered to investigate and prosecute individuals suspected of war crimes, genocide and crimes against humanity, including widespread torture and rape. Decisions will be made by 18 appointed judges.

Supporters of the court, to be based in The Hague, say only part of its value lies in the ability to prosecute people who committed atrocities. Nearly as significant is the development of a set of international norms that can be applied universally. Until now, the U.N. has established tribunals and rules for specific cases, such as the existing tribunals for Rwanda and the former Yugoslavia.

The Clinton administration signed the treaty creating the ICC but did not submit it to the Senate for ratification. The Bush administration pulled back further and formally abandoned participation in May, arguing that the court would be an unchecked power.

"Our diplomats and our soldiers could be drug into this court, and that's very troubling to me," Bush warned last month. He told the Army's 10th Mountain Division, "Every person who serves under the American flag will answer to his or her own superiors and to military law, not to the rulings of an unaccountable international criminal court."

American diplomats presented the U.S. argument to foreign ministries a few weeks ago and sought short agreements pledging not to surrender Americans to the court. Since then, the State Department has held a series of briefings for Washington-based diplomats and has reached out to the foreign media. High-level officials have begun a series of follow-up trips around the globe.

"On any given day, there are people who would like to come after the United States and use any tool at their disposal," Pierre-Richard Prosper, the State Department war crimes envoy, told Danish reporters last week. "And we truly believe that this is a process that is exploitable and can be politicized."

Prosper said a collective refusal by the European Union to sign the agreements "would obviously pose a fundamental problem in aspects of our relationship, in as far as military engagement in Europe and elsewhere." There are currently about 9,000 U.S. peacekeepers stationed abroad, the majority of them in the Balkans.

U.S. officials say they have not threatened countries with a cut in military aid, as set forth in a new antiterrorism law signed by Bush. NATO allies and other significant partners are exempt from the measure, and the president also has the discretion to issue waivers. Yet a senior U.S. diplomat acknowledged that foreign governments are well aware of its penalties.

"I think the countries that might be affected negatively are aware of that fact, and I think that they're taking that into consideration along with everything else," the official said.

Marc Grossman, the State Department's undersecretary for political affairs, sought an agreement in Colombia, the third-largest recipient of U.S. military assistance. A senior Colombian diplomat said Friday that President Alvaro Uribe is "favorably inclined" to back the United States. He said the military aid threat was not discussed.

Prosper told the Danish reporters that a decision by NATO alliance candidates not to sign an agreement will be "an issue that we will have to discuss in the NATO context -- that's the reality. We can't avoid talking about this. It's something that's an issue of concern to the United States."

Richard Dicker of Human Rights Watch said, "For the United States to be pressuring Slovenia and Estonia to undercut a commitment to the rule of law is astounding." He also accused the administration of hypocrisy for pressuring Yugoslav, Croatian and Bosnian authorities to surrender suspects to The Hague tribunal while being unwilling to submit U.S. citizens to the ICC.

Another administration official said no threats regarding NATO admission have been made or implied. "Quite frankly," the official asserted, "I don't think it would be a deciding factor."

Peter Slevin
Published by The Washington Post © 2002 The Washington Post Company

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