The International Criminal Court (ICC) was established in 2002 at The Hague in the Netherlands to prosecute individuals alleged to have committed war crimes, crimes against humanity and the crime of genocide.
From the ICC’s inception, the US objected to the possibility that its nationals could be subject to the court’s jurisdiction.
George W Bush’s administration waged an aggressive international campaign to persuade states to sign “Article 98”, or bilateral immunity agreements. Under such agreements, nations agreed not to transfer US nationals to the ICC without the US government’s consent.
In August 2002, Bush enacted the American Service-Members' Protection Act (ASPA), which prohibited military aid to countries which had ratified the Rome Statute unless they signed an Article 98 agreement.
Further measures passed in 2004, known as the “Nethercutt Amendment”, extended the scope of the sanctions to Economic Support Funds (ESF) assistance.
ESF funds are provided to “countries of strategic interest to US foreign policy” for a variety of programs including peacekeeping, “democracy promotion” and “counter-narcotics” initiatives.
NATO countries and designated “major non-NATO allies” were exempted from these measures. The restrictions could also be waived if the president deemed it “important to the national interest of the United States”.
For other states, the only way to avoid the sanctions was to sign an Article 98 agreement. By May 2005, 100 had done so, while 20 states were subject to ASPA sanctions and seven subject to Nethercutt measures for failing to sign.
By Bush’s second term, support for these measures had waned, but not because of a softening of the administration’s hostility towards international law.
Rather, as documents published by WikiLeaks show, some US politicians and diplomats were worried that that the sanctions were having “unintended consequences” for US policy objectives — and were undermining US power in countries of strategic interest.
A 2007 US Congressional Research Service Report (CRS Report), made publicly available by WikiLeaks, outlined the “evolving policy debate in the U.S. government” in the context of the effect of ICC-related sanctions in Latin American countries.
The CRS Report noted Secretary of State Condoleeza Rice’s March 2006 comment that implementing ASPA sanctions against US allies in the “war on terror” and the “war on drugs” was “sort of the same as shooting ourselves in the foot”.
The report further noted the concern of some US policy-makers that the sanctions were reducing US influence in the region, as sanctioned states looked to other countries, such as China and Russia, for military training and assistance.
The conflict between the Bush administration’s pursuit of ICC immunity and other US interests is further detailed in US diplomatic cables published by WikiLeaks.
Costa Rica was one of 12 Latin American countries that refused to sign an Article 98 agreement and was therefore subject to ASPA and Nethercutt sanctions. In 2005, the US Ambassador to San Jose wrote that the “unavailability of U.S. military assistance and ESF unavoidably contributes to a decline in U.S. influence in Costa Rica and makes it more difficult to achieve our objectives in the areas of counternarcotics, counterterrorism, and, to a lesser extent, free trade”.
The ambassador noted that the withdrawal of funds had led to a “noticeable deterioration of the seaworthiness of the Costa Rican Coast Guard fleet and degradation of the operational readiness of other law enforcement units such as the SWAT team”.
“More worrisome”, the ambassador wrote, “the absence of training and other U.S. military assistance may eventually cause Costa Ricans to call into question the value to them of the Bilateral Maritime Agreement”.
This bilateral agreement, which was signed in 1999, allows the US to use Costa Rica as a base from which to wage its “war on drugs”. The agreement allows US Coast Guard ships to patrol in Costa Rican waters, and US aircraft to fly into Costa Rican airspace.
In 2010 it was controversially extended to allow US warships carrying Black Hawk helicopters and other aircraft into Costa Rican waters.
The ambassador wrote: “Our task is to find a way out of the dilemma faced by the [Government of Costa Rica] because it is in reality also a dilemma for the United States as we strive to stem the flow of illegal drugs, stop terrorists, and foster an ever-growing trade relationship with Costa Rica.”
The US faced a similar dilemma in Paraguay where, in the view of the US Embassy in Asuncion, pushing for an Article 98 agreement in the face of regional opposition threatened US access to “the most permissive environment for [military] exercises in the region”.
In October 2006, Bush deemed that it was in the US’s national interest to waive International Military Education and Training (IMET) restrictions for Costa Rica and Paraguay. In March 2007, the US ambassador to San Jose welcomed the resumption of US military training for Costa Ricans, which he wrote had previously “provided the U.S. with access and influence among key Costa Rican officials”. However, he told Washington that remaining restrictions were continuing to affect Costa Rica’s ability to help the US in its “war on drugs”.
The ambassador wrote that his embassy “strongly recommends a national interest waiver of ASPA restrictions against Excess Defense Articles (EDA) for Costa Rica”. The EDA program allows for the transfer of surplus US military equipment to Latin American and eligible Caribbean countries.
The cable reported that there had been record cocaine seizures in Costa Rican waters in 2006. However, EDA restrictions had meant that “the Cost Rican Coast Guard was frequently unable to respond to actionable intelligence of vessels known to be carrying drugs … due to a lack of patrol boat readiness”.
In Brazil, the US Embassy was concerned that IMET restrictions had meant that Brazil’s Ministry of Defence was “shifting to other countries for training and exchanges previously done with the U.S.”
A March 2004 cable reported that “[w]hile France and the United Kingdom have picked up much of the slack, Brazilian officers, according to military sources, are now being sent also to training programs in China, India, and South Africa”.
As well as weakening “traditionally close ties between our two armed forces”, the cable reported that the sanctions were prejudicing US weapons manufacturer Lockheed Martin’s prospects of winning a contract from Brazil for US$700 million worth of new F-16 fighter jets.
The cable reported that “[w]hen a decision on purchase of Brazil's next generation fighter jet … is finally taken, training for pilots will likely be in the country of origin of the new aircraft”. With such training prohibited in the US, Brazil might look to buy the jets from another country.
Brazil subsequently abandoned its plan to purchase new jets because of budgetary constraints. However, a cable from December 22, 2004 reported that the government of Brazil instead “may review whether to purchase less costly used aircraft” and said “[i]n this regard, the Lockheed Martin F-16 would have the inside track”.
The cable suggested that US diplomats had had some success in convincing generals in the Brazilian air force that buying used F-16s was “the most logical way forward both tactically and economically”.
However, in the embassy’s view, the Brazilian government might not be so easily won over because, “[a]s Brazil observes the bite that ASPA is taking on countries that do not sign Article 98 agreements, it [sic] questions about the reliability of the U.S. as a supplier/strategic partner will continue”.
It was a different story in Chile, where the US Embassy in Santiago reported in 2006 that it was pleased that the pursuit of an Article 98 agreement “has yet to interfere with future military sales, bilateral relations, or exchanges or humanitarian operations between our countries' armed forces”.
Chile had signed a deal to purchase 10 F-16s for $500 million in 2002, the first of which were delivered by Lockheed Martin in January 2006.
Unlike Costa Rica and Brazil, Chile had not ratified the Rome Statute and was therefore not subject to sanctions. The cables report that the Chilean government told the US that it would eventually ratify the treaty because of strong domestic and regional support for the ICC, and that signing an Article 98 agreement “would not be politically possible”.
The Chilean government was concerned that joining the ICC without signing an immunity agreement would jeopardise the “strong U.S.-Chile relationship”. According to a December 2005 cable, Chilean foreign minister Ignacio Walker told the US ambassador that this relationship was “more important now than ever, given the recent troubling developments in the region”.
Specifically, the cable said, “Walker cited Evo Morales' recent election in Bolivia, the Chavez-Morales axis, and increasing ties between Venezuela and Argentina as reasons why ‘like-minded countries’ like the U.S. and Chile need to remain close”.
A January 2006 cable reported that US International Security and Nonproliferation Assistant Secretary Stephen Rademaker told Chilean officials that “Chile should not count on a Presidential waiver of ASPA sanctions” if it went ahead with ratification.
According to the cable, Rademaker said: “[s]everal other countries, notably Colombia in the hemisphere, have faced political difficulties in deciding to enter into an Article 98 agreement with the U.S. Granting a national interest waiver for Chile now could harm our relations with those countries.”
In 2006, Bush waived IMET restrictions against Brazil on the grounds that it was “important to the national interest of the United States” to do so. Chile ultimately avoided ICC-related sanctions by delaying ratification of the Rome Statute until 2009, by which time all the restrictions had been lifted.