Bush Waives Article 98 Sanctions

by Kevin Jon Heller

Peggy and I have both noted a subtle erosion in the Bush adminstration’s opposition to the ICC. See, for example, here and here. That erosion continued today, as President Bush announced that he was using his authority under Section 2007 of the American Servicemembers Protection Act to permit the U.S. to resume military aid to 21 countries who have refused to sign Article 98 agreements. The countries include Barbados, Bolivia, Brazil, Costa Rica, Croatia, Ecuador, Kenya, Mali, Malta, Mexico, Namibia, Niger, Paraguay, Peru, Samoa, Serbia, South Africa, St. Vincent and the Grenadines, Tanzania, Trinidad and Tobago, and Uruguay.

President Bush deserves credit for allowing pragmatic concerns to temper his opposition to the ICC. Even more deserving of credit, however, are the countries that openly refused to be blackmailed by the U.S. into undermining the Court, nearly all of whom are on the list. Here are some examples:

“[Signing an Article 98 agreement] would go against the multilateral order and against the principles of defense of human rights. … We may be poor, but we have our dignity.” – Costa Rican Foreign Minister Roberto Tovar, September 2005.

“We will not change our principles for any amount of money. We’re not going to [go] belly up for $300,000 in training funds.” – Barbadian ambassador to the Organization of American States Michael I. King, August 2005.

“We will assume any consequences that might result from our signature [of the Rome Statute]. It is a signature that comes from our principles and this government’s political convictions. Whether or not there will be a reduction in U.S. aid is not relevant to us, what is relevant is that our convictions and principles mean something.” – Mexican Presidency spokesman Rubén Aguilar, February 2006.

“Peru will not sign any agreement that impedes it from submitting any country’s citizens to the jurisdiction of the International Criminal Court. Peru rejects pressure from any other country on its foreign policy.” – Peruvian Foreign Minister Manuel Rodríguez, August 2004.


2 Responses

  1. This is a very important development. The “Article 98” problem was a major impediment to US engaging in “military to military” relations. When I was the Chief of the International Law Branch for Headquarters, US Army Europe from 2001-2003, this issue was always problematic. I witnessed first hand US efforts to press allies into executing such agreements, with the accordant “threat” of “turning off” these engagement activities.

    It is also, however, important to acknowledge why this issue was pressed with such determination. Our forces are certainly more exposed to foreign jurisdictions than probably any other armed force. We have people stationed all over the world, and travelling on mission related events to many other nations. Almost all of these service members are now veterans of combat operations. I wonder what the US reaction will be if one of these service members is arrested while on an official mission based on an ICC request to the host nation? I also wonder how a “hosting nation” would actually respond to such a request?

    Of course, this would all be moot if the US joins the court.

  2. I think there is much less here than meets the eye. There is zero chance that any of these nations would in fact turn over an American serviceman to the ICC. The administration recognizes this fact, as well as the fact that these nations must pay lipservice to the ICC. But given the “Invade the Hague Act” signed by President Clinton, it is certain that none of these tiny nations would risk becoming collateral damage to any US military campaign vs. the ICC. Their unwavering principle in support of the ICC will become as transarent as the US law schools’ unwavering principle vs. anti-gay discrimination. That is, the nations will back down when faced withthe miltary and geopolitical reality, just as the law schools’ principles buckled when faced with the loss of money. Security trumps international acclaim, just as mammon trumped opposition to the anti-gay policies of the military.

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