ANALYSIS: Unintended Consequences of the U.S. Bilateral Immunity Agreement Policy

I. INTRODUCTION

When President Bush and First Lady Laura Bush greeted Mexican President Vicente Fox and his wife Martha Sahagun de Fox at the administration's first State Dinner at the White House on Sept. 5, 2001, the intent of the administration to prioritize U.S.-Latin America relations seemed both strong and clear. Indeed, the newly elected President Bush was very focused on U.S.-Mexico relations specifically and Western hemispheric relations in general. Yet despite both conventional wisdom and all indications from the nascent Bush administration, six years later it is unquestionably clear that President Bush has been at the helm of one of the most damaging periods in the recent history of U.S.-Latin America relations.

From flawed regional policies, such as the hard-line stance with Mexico on immigration and trade agreements that seem to harm ordinary Latin Americans, to global concerns, such as the invasion of Iraq and illegal interrogation and detention policies, the administration has effectively alienated vast swaths of people in every economic and demographic category throughout the Western hemisphere.

Illustratively, a recent poll by the Chilean non-profit research firm Corporacion Latinobarometro (which commissioned polls of 20,234 people in 18 countries via face-to-face interviews from Oct. 3 to Nov. 5, 2006) found that President Bush is one of the least popular heads of state in the Western Hemisphere, tied with polarizing Venezuelan President Chavez and fractionally more popular than aging Cuban dictator Fidel Castro¹ :

While the U.S.-Latin America relationship is a complex one, the root causes of the current turbulence between the U.S. and its neighbors can be placed in three general categories. First, there has been a marked reorientation of the Bush administration toward the Middle East after September 11, 2001. This reorientation is fundamentally ideological in nature and has resulted in globally controversial policies such as the invasion of Iraq, extraordinary rendition, and the prioritization of the “war on terror” above all other foreign policy objectives. Notwithstanding its explicit focus on the Middle East, the ideological approach that the Bush administration has consistently employed in its foreign policy has also spilled into bilateral and multilateral relations with Latin American countries as well.

Second, a combination of U.S. domestic politics and this ideological orientation have led to key policies toward specific Latin American countries that have effectively chilled, as opposed to fostered, cooperation and collaboration. The administration’s failure to secure a comprehensive immigration bill and the proposal to build a wall on the southern border with Mexico are cases in point.

Third, the administration’s ideological orientation on a number of issues has led to widespread unintended consequences in U.S.-Latin America relations. The best example of these policies are the Bush administration’s decision to un-sign the Rome Statute establishing the International Criminal Court and aggressively pursue Bilateral Immunity Agreements (BIAs) with every country in the world. Given the geo-strategic position of Latin America, as well as the fact that thirteen out of the twenty Latin American countries have joined the ICC, the administration’s BIA campaign targeted these countries early on and the result has been morally and politically disastrous.

This white paper will explore the nature of and rationale behind BIAs, the costs of this policy in concrete political, moral, and economic terms, the elementary yet encouraging signs of change in Congress on the issue of BIAs, and finally, affirmative recommendations designed to repair and restore U.S. relations with one of the most important regions in the world.

II. BILATERAL IMMUNITY AGREEMENTS (BIAs)

A. History

In July 1998, more than 160 government delegations came together in Rome, Italy to participate in the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, commonly referred to as the Rome Conference. The goal was clear: To draft a statute, that, upon the requisite number of ratifications, would establish the world’s first treaty-based permanent International Criminal Court (ICC). After five grueling weeks, the Rome Statute of the ICC was finalized. Four years and 60 ratifications later, the Court was established on July 1, 2002.

The U.S. delegation at the Rome Conference was the largest and arguably most influential delegation during the negotiations. While the delegation did not hide its primary objective of securing and protecting U.S. interests and sovereignty, the delegation was nonetheless committed, in principle, to the underlying cause of the Rome Conference, namely the creation of a permanent Court to end impunity and crimes such as genocide. At the conclusion of the Rome Conference, delegations returned to their respective countries to commence the process of signing and ratifying the Rome Statute. The U.S. delegation, led by Ambassador David J. Scheffer, faced many challenges upon returning to the U.S. with the text of the Rome Statute. Chief among them was securing an audience with then President Clinton to discuss the merits and possible shortcomings of the Rome Statute. Despite these difficulties, however, President Clinton signed the Rome Statute on December 31, 2000, and the question of ratification was passed on to the incoming Bush administration.

Eight years later, the current U.S. administration is not only staunchly opposed to the ICC, but has also taken significant steps to isolate and undermine the Court. President Bush and his administration have consistently and incorrectly claimed that the ICC is a politicized court that will target U.S. service members and nationals abroad. This anti-ICC position and the rhetoric of the ICC as a threat to “our men and women in uniform” became more austere in the aftermath of 9/11, as the administration engaged in its “war on terror” and began formulating its invasion of Iraq. Indeed, a year after 9/11, President Bush un-signed the Rome Statute—a hitherto unprecedented act. He also pushed for blanket immunity from the ICC, to be enforced by the Court’s member states. This push resulted in Congress’s passage of legislation over a period of five fiscal years that conditioned military and economic aid to recipient countries on the execution of agreements providing all U.S. nationals, including soldiers, blanket immunity from the ICC’s jurisdiction. The administration calls these arguments “Article 98 Agreements,” referring to Article 98 of the Rome Statute. Yet neither the text nor the object and purpose of Article 98 allow for these bilateral immunity agreements. In fact, the European Union, nearly all of whose members are party to the ICC, has concluded that "entering into U.S. [bilateral immunity] agreements – as presently drafted – would be inconsistent with ICC States Parties’ obligations with regard to the ICC Statute and may be inconsistent with other international agreements."

Furthermore, given the existence of Status of Forces (SOFA) and Status of Missions Agreements (SOMA) between the U.S. and nearly every country in the world, BIAs are legally redundant. Still, in Fiscal Year (FY) 2002, Congress passed the American Servicemembers Protection Act (ASPA), followed by the inclusion of the Nethercutt Amendment in the FY 2005 Foreign Operations Appropriations bill. These pieces of legislation have disproportionately affected Latin American ICC member countries.

B. American Servicemembers Protection Act (ASPA)

The American Servicemembers Protection Act, originally signed into law in August 2002, prohibits the United States from providing military aid under Congress’s annual Defense Authorization Bill to countries that have ratified the Rome Statute of the International Criminal Court (ICC) and do not have a BIA with the U.S. in place. Furthermore, ASPA effectively limits U.S. cooperation with the International Criminal Court, restricts U.S. participation in U.N. peacekeeping, and authorizes the President to use "all means necessary and appropriate" to free any U.S. or allied personnel held by or on behalf of the ICC—a provision that has led frustrated European leaders to refer to ASPA as the “Hague Invasion Act.”

Military aid, and its sanctioning under ASPA, has served as carrots and sticks for ICC member states in Latin America. Under ASPA, if a military aid recipient country does not fall under the statutory exemption or refuses to enter into a BIA, it will risk losing two types of military aid. The two types of aid sanctioned under ASPA are International Military Education and Training (IMET) and Foreign Military Financing (FMF). According to the State Department, IMET is primarily used for providing professional military education, improving civil-military relations, resource management and democratic institution-building. The State Department characterizes FMF as aid intended to provide equipment, training assistance and sustaining operations. The U.S. government utilizes both types of military aid for what it characterizes as “counter-terrorism efforts.”

Despite the provision banning military aid to ICC countries, ASPA does provide exemptions if the President waives the requirement in the “national interest”; countries have concluded a BIA with the U.S.; or the country is one of the statutorily exempt countries under ASPA, namely all NATO countries, Argentina, Australia, Bahrain, Egypt, Israel, Japan, Jordan, Kuwait, Morocco, New Zealand, Pakistan, Philippines, the Republic of Korea, Taiwan and Thailand. The dearth of Latin American countries listed as major non-NATO allies (Argentina being included) likely compounds the frustration Latin American governments have felt regarding the administration’s BIA push.

From its enactment in August 2002 until October 2006, when Congress amended ASPA and President Bush issued waivers for the first time, ASPA has directly and adversely affected 21 ICC member countries worldwide, nearly half of which are in Latin America. Table 1 illustrates the total amount of IMET aid lost in FY 2005 for nine Latin American countries that are parties to the ICC and have not entered into BIAs with the U.S. At the time of this writing, the State Department has not released the amount of military aid lost for FY 2006.

Table 1: IMET Numbers ($ in thousands)

In FY 2005 alone, every Latin American ICC member country except Mexico lost all of its IMET aid under ASPA, totaling $1.94 million. Mexico was likely spared because it had not joined the ICC when Congress completed its FY 2005 budget for its Foreign Operations Appropriations Bill. Mexico became the 100th member of the ICC in October 2005.

While the numbers themselves are telling, the State Department’s articulation of the intended uses of IMET aid shed even greater light on the counterproductive nature of the U.S. BIA campaign as applied in Latin America. Table 2 summarizes the State Department’s IMET budget justification for the nine Latin American ICC member countries affected under ASPA.

Table 2: IMET Budget Justification, FY 05 – FY 07

However, the numbers on IMET funds do not tell the whole story. Since ASPA also targets FMF, which means Latin American countries have lost out on millions of additional dollars in crucial military aid. Table 3 illustrates the amount of FMF aid Latin American ICC member countries lost in FY 2005 as a result of U.S. ICC policy, and Table 4 summarizes the State Department Budget Justification for FMF in Latin America:

Table 3: FMF Numbers ($ in thousands)

As Table 3 demonstrates, four Latin American ICC member countries lost all of their FMF aid in FY 2005. These four countries also lost all of their IMET aid, as depicted in Table 1. Thus, the total amount of military aid lost under ASPA in FY 2005 was nearly $8.5 million. To put this amount in perspective, the Gross National Income (GNI) per capita for Peru in 2005 was $2,610.

Table 4: FMF Budget Justification FY 05 – FY 07 (for State Department Comments, see Table 2)

Tables 2 and 4 (Budget Justifications) articulate core U.S. interests and foreign policy objectives vis-à-vis Latin America. NGOs and critics of the U.S. government rightly argue that the disbursement of any kind of military aid is of great concern from a moral, political and economic perspective. Yet the key issue here surpasses the type or amount of aid. Rather, it is the underlying principle of the U.S. BIA policy, namely the use of military aid as a coercive tool with Latin American countries to achieve immunity from the ICC, that is particularly disturbing and damaging. The vast majority of Latin American states have long been U.S. allies. And yet, by pushing for the execution of BIAs with every country in this region, the U.S. has effectively prioritized its ill-conceived fear of Americans being prosecuted at the ICC over its own stated objectives of fighting terrorism, drug trafficking, and democratic institution-building.

C. Nethercutt Provision

Two years following the passage of ASPA, the House of Representatives attached an anti-ICC amendment to the Fiscal Year 2005 (FY05) Foreign Operations, Export Financing, and Related Programs Appropriations Act (H.R. 4818) that mirrored the aid restrictions in ASPA. The amendment, offered by Rep. George Nethercutt (R-WA), would cut Economic Support Funds (ESF) to all countries that belong to the ICC but have not signed a BIA with the U.S. The Nethercutt Amendment passed in FY 2005 and was renewed as a provision in the FY 2006 Foreign Operations Appropriations Bill. It would have likely survived the House-Senate Conference Committee for the FY 2007 Bill had the Congress not been forced to pass it in truncated form under intense pressure to complete it quickly.

When the amendment was first introduced, Rep. Jim Kolbe (R-AZ), then the Republican Chairman of the Appropriations Subcommittee on Foreign Operations, spoke strongly against it on the House floor: “At a time when we are fighting the war on terrorism, reducing this tool of diplomatic influence is not a good idea…If we accept [this amendment], the U.S. will be hamstringing itself, placing a straitjacket on its diplomatic tools, when we have a lot of U.S. national security objectives that must carry the same or equal weight as securing [BIAs].” While the amendment originally failed by voice vote, it later passed by a roll call vote of 241 to 166.

Like ASPA, the Nethercutt Provision also contains waivers that the President can invoke to exempt selected countries from ESF cuts. Specifically the FY 2006 provision provides (1) an exemption for NATO Allies, key non-NATO allies, and other countries if the President determines that it is in the national interests of the U.S.; (2) waivers for countries that the President determines have entered into a BIA with the U.S.; or (3) the targeted countries are recipients of aid under the Millennium Challenge Act (MCA). Until November of last year, the President did not issue waivers for any of the countries affected by the Nethercutt provision, seven of which are in Latin America. Table 5 below illustrates the amount of aid threatened⁶ under the Nethercutt Provision for these countries.

Table 5: ESF in Numbers ($ in thousands)

As Table 5 illustrates, a staggering $110.8 million in ESF designated for seven key Latin American ICC member countries has been threatened since the passage of the Nethercutt provision in FY 2005. This amount is particularly disconcerting when compared to the stated foreign policy objectives that ESF is intended to achieve. Table 6 elucidates the U.S. objectives for ESF aid to Latin America.

Table 6: ESF Budget Justification FY 05 – FY 07

The amount and intended uses of ESF requested for these seven Latin American ICC member countries calls into question the value of the Nethercutt provision. The result is a policy that threatens aid to Mexico of $11.5 million earmarked for anti-corruption programs, to Peru of $8 million to combat narco-trafficking and terrorism, and to Paraguay of $2.25 million for counter-corruption and programs. At a time when the foreign policy focus of the administration seems to be centered on fighting terrorism, withholding funds that assist neighboring countries working to tackle terrorism and the scourge of narco-trafficking seems woefully counterproductive.

D. Unintended Consequences of the BIA Policy

Alienating Friends and Allies

Not surprisingly, Latin American countries affected by the BIA campaign are greatly distressed by the prioritization of fear and hostility toward the ICC over other stated foreign policy objectives such as bilateral and multilateral efforts to fight terrorism, promote the rule of law, and encourage democratic governance. Attorney Salvador Herencia Carrasco, who advises on ICC ratification and implementation efforts in six key Latin American countries as part of the Andean Commission of Jurists, said in a November 2006 interview that “the [BIA campaign] was a wrong strategy from the beginning. [These Andean countries] will not sign BIAs out of respect for the integrity of the Rome Statute of the ICC.”

Carrasco’s sentiments are reflected by key Latin American leaders as well. The Bush administration’s closest allies in the region, President Alvaro Uribe of Colombia and former Peruvian President Alejandro Toledo, have also rightly noted that the U.S. should be deepening its engagement in, and economic support of, Latin America, not cutting aid and alienating friends and allies in the region. They have urged U.S. policymakers to act as good neighbors, recognize the importance of strong regional alliances, and engage with Latin America in a manner that demonstrates good faith.

Yet despite the unfavorable reaction of governments across the globe in general and in Latin America specifically, the Bush administration has persisted in making the BIA campaign a top tier foreign policy priority since 2002. In fact, the administration has repeatedly boasted of BIAs in force with over 100 countries. The vast majority of these countries are U.S. friends and allies. Table 7 highlights a number of these countries:

Table 7: BIAs by Country (as of January 7, 2007)

The decision to prioritize the BIA campaign has also been controversial within the administration. Off-the-record reports have noted despair among seasoned diplomats that the president has consistently had the BIA issue on his agenda for head of state meetings at a time when the slate of foreign policy challenges facing the U.S. is already extensive. During the last four years, foreign policy strategists have observed on numerous occasions that the anti-ICC, ASPA and Nethercutt provision are blunt instruments that harm U.S. interests in service of an ideological goal, namely the undermining of the ICC. It has also been clear that the division caused by the pursuit of these agreements allows other countries in the region to step into the gap that the BIA policy has helped create. For instance, Venezuelan President Hugo Chavez has sought to utilize his “Petroamerica" initiative to strengthen his appeal; this effort may not have been so successful if not for the increasingly negative perception of the Bush administration in Latin America, thanks in part to BIA-related cuts in critical military and economic aid.

Leaving a “Hemispheric Void”

Recently, even the Pentagon’s Quadrennial Defense Review (QDR) has commented on the burden that ASPA has placed on the U.S. military. With respect to IMET funds in particular, the 2005 QDR stated that the Pentagon seeks to exempt IMET and other foreign assistance programs that are "vital in the war on terror" from ASPA restrictions. The QDR’s language was in part due to the growing unease felt by senior military officials facing the negative consequences of ASPA and the Nethercutt provision.

This unease was finally heard by key members of Congress in 2006. In the first quarter of 2006, Congress held a series of hearings to ascertain the actual risk posed by ASPA to U.S. military interests abroad. While the catalyst for these hearings was pragmatic, not moral, the newly emerging pragmatism was nonetheless welcome after a hitherto strongly ideological approach. On March 14, 2006, the Senate Armed Services Committee held a hearing “to receive testimony from combatant commanders on their military strategy and operational requirements in review of the Defense Authorization Request for Fiscal Year 2007.” In that hearing, key military commanders, including Gen. James L. Jones, NATO Supreme Allied Commander (Europe), touched on the negative impact of ASPA in military to military relations.

Two days later, the House Armed Services Committee held a similar hearing at which Gen. John Craddock, then Commander of the U.S. Southern Command testified:

“Eleven [Latin American] countries remain sanctioned under the American Servicemembers Protection Act (ASPA) and are, therefore, barred from receiving IMET before the ASPA sanctions took effect, 25 percent (771) of the total number of students (3,128) trainee from the AOR came from the countries that are now sanctioned. Providing opportunities for foreign military personnel to attend school with U.S. service members is essential in maintaining strong ties with out partner nations. Decreasing engagement opens the door for competing nations and outside political actors who may not share our democratic principles to increase interaction and influence in the region. It is well known that…China has a long-term goal of partner with the countries of Latin America..[China] has been making headway into the region by using economic measures, employing diplomacy, building infrastructure, negotiating trade deals, and offering resources to cash-strapped militaries and security forces with no strings attached.”

These hearings, in conjunction with consistent protests from Latin American officials, clearly demonstrated that the BIA campaign was not only counterproductive, but also, counterintuitive. Even a predominantly anti-ICC Congress could not rationalize a policy that was, paradoxically, hurting the very service members it was intended to protect.

Undermining Rule of Law, Promoting Human Rights

Since April 2006, Members of Congress, senior military officials, and even some officials in the State Department have questioned the efficacy of the BIA campaign and the related legislation. In addition to political and military setbacks the BIA campaign has also had steep human cost. In the eyes of many both at home and around the world, the administration’s adoption of and aggressive push for the BIA campaign flies in the face of a historic commitment to principles of rule of law and the advancement of human rights. For the 104 countries that have joined the ICC, the idea of contracting blanket immunity for U.S. soldiers both does damage to a hitherto strongly pro-human rights reputation enjoyed by the U.S. This mentality is easily understandable: the ICC is a court of last resort intended to investigate and prosecute the worst of the worst. This includes war criminals such as Thomas Lubanga Dyilo, who is currently on trial for the conscription and forcible recruitment of tens of thousands of child soldiers in the Democratic Republic of Congo (DRC). And in 2007, the ICC issued an arrest warrant for Ali Kushayb, a Janjaweed militia leader in Darfur who is charged with 51 counts of war crimes and crimes against humanity for atrocities committed against Darfurians in a brutal campaign of ethnic cleansing. Thus, the administration’s incessant push for BIAs paints a picture of flagrant disregard for justice and accountability for war crimes, crimes against humanity and genocide and indifference to passive complicity in such crimes. Pictures from Abu Ghraib, Guantanamo and Haditha, coupled with increasingly frequent accounts of proxy torture and extraordinary rendition committed by the U.S. government further exacerbate this image.

Furthermore, the administration has failed to recognize that entering into a BIA with the U.S. would put ICC member countries squarely in violation of their legal obligations under the Rome Statute of the ICC. For many countries that have commenced the process of implementing the Rome Statute at the domestic level, BIAs force them to breach domestic laws and processes as well. In fact, countless government officials, including some of the most outspoken from Latin America, take the “choice” between violating domestic and international laws or losing aid from the U.S. as an affront to their national pride and sovereignty. Ultimately, for these countries, the political, moral, and legal costs of BIAs simply outweigh the dollar amount lost in aid.

III. RECENT ACTION BY CONGRESS, ADMINISTRATION

Despite the administration’s push for BIAs since the inception of ASPA in 2002, both Congress and President Bush have taken some elementary but significant steps away from the BIA campaign and, albeit slowly and quietly, toward a more pragmatic approach to U.S.-Latin America relations.

In July 2006, responding largely to testimony from senior military commanders from the March hearings, Senator James Inhofe (R-OK) introduced an amendment to the FY 2007 Defense Authorization Bill to exempt IMET aid from being cut to ICC member states who did not have a BIA in place. While the text of the amendment was less than two lines in its entirety, it was nonetheless significant in demonstrating the growing realization by even the staunchest ICC opponents that the BIA campaign was at best ineffective and at worst a counterproductive policy that alienates allies in Latin America. The amendment passed the Senate version of the Defense Authorization Bill and survived the House-Senate conference. In October 2006, President Bush signed the bill into law, leaving ASPA partially repealed for the first time in five years.

Two days after Congress passed its Defense Authorization Bill containing the Inhofe Amendment, President Bush also issued waivers for the twenty-one ICC member countries—nine from Latin America—that were being denied IMET because of their refusal to sign BIAs. Given the partial repeal of ASPA, the waivers were legally redundant but nonetheless important in demonstrating the parallel tracks between the Administration and Congress on the BIA issue. This was the first time that President Bush had invoked the waiver provision under ASPA.

The following month, without much ado or warning, President Bush again invoked his waiver authority, this time under the Nethercutt provision. On November 29, 2006, 14 ICC member countries that had faced ESF sanctions for three fiscal years were now exempted from aid cuts. These include the Latin American countries of Bolivia, Costa Rica, Ecuador, Mexico, Paraguay, and Peru. However Venezuela and Brazil—the only other Latin American ICC member countries receiving ESF aid, were not granted waivers.

The ESF waiver, coupled with the Inhofe amendment and the IMET presidential waivers from the preceding month, were positive steps. However, the use of waivers to address the rift in U.S.-Latin America relations is ultimately a superficial and insufficient solution. Unless the actions of last fall by Congress and the administration mark the beginning of a speedy and comprehensive overhaul of the BIA campaign, few if any Latin American allies will perceive the waivers as anything more than an admission of guilt by Congress and the administration for a policy that was wrong to begin with.

IV. RECOMMENDATIONS

Regardless of the type or amount of aid cut or exempted, the U.S. must abandon its underlying policy of penalizing countries simply for being members of the ICC. This simple fact is that the ICC 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. Given the unwavering support of 104 countries for the ICC, over ten percent of which come from Latin America, the U.S. must find less alienating ways of addressing its concerns about the Court. To that end, Congress and the administration must:

• Move past waivers and push for a shift in policy, from ideology to pragmatism
• Fully repeal ASPA and do away with the Nethercutt Provision
  
• Formulate a comprehensive solution to withdraw existing BIA’s with countries in Latin America and beyond
• Refrain from pushing other ICC member countries and those countries on the verge of joining the Court to sign BIAs with the U.S.
  
• Show good faith in words and action in lieu of strong-arm tactics in Latin America

V. CONCLUSION

United States policy toward Latin America must put pragmatic considerations before a quest for agreements that are legally redundant, politically damaging, and morally questionable. BIAs are a byproduct of an era in which policy makers inaccurately accepted that U.S. foreign policy could be driven by parochial domestic political considerations and little else. The United States needs a 21st century foreign policy that emphasizes regional engagement, not alienation, in Latin America. To that end, Congress and the administration must implement the above recommendations with utmost diligence and speed to undo the chief outcome of the BIA campaign: losing Latin America.

1 http://www.latinobarometro.org

2 Since the passage of the American Servicemembers Protection Act in 2002, many countries receiving U.S. military aid have requested significantly lower aid amounts in the hope that the lower amount will be granted. To view FY 2002 actual IMET and FMF aid granted, FY 2003 aid estimated, and FY 2004 aid requests, please visit www.state.gov/s/d/rm/rls/cbj/2004.

3 This information is entailed in the Congressional Budget Justification for Foreign Operations for each fiscal year and is available on the State Department website, http://www.state.gov/s/d/rm/rls/cbj/. The content has not been altered by the author.

4 Id.

5 Id.

6 Notwithstanding the Nethercutt Provision, various sources have confirmed that USAID, the chief conduit for U.S. economic assistance abroad, has not consistently adhered to the new sanctions. However, irrespective of whether these funds are actually cut by USAID, as long as the Nethercutt Provision is law, ESF for all ICC member countries is threatened.

7 See Note 3.

8 See Note 3.