Originally published on the CGS blog on March 11, 2009.
Senate passage of the Omnibus appropriations bill quietly marked the end of Congressional sanctions on nations that have ratified the International Criminal Court. It also officially ends the Bush administration’s Bilateral Immunity Agreement (or Article 98) campaign, clearing the way for greater U.S. cooperation with the Court.
Thank you Representative Lowey, Senator Leahy and your staffs!
Beginning in the summer of 2002, the Bush administration aggressively sought to conclude bilateral immunity agreements with every country in the world. Bilateral immunity agreements (BIAs), also known as “Article 98” agreements, prohibited countries from sending U.S. personnel to the ICC for any reason. This includes U.S. servicemembers, nationals, or employees of the U.S. government (past and present, including non-national contractors). Over 100 nations were pressured into signing these agreements, even though doing so meant violating the commitment they took on when they ratified the ICC treaty. They were forced to put all U.S. citizens on their territory, even mercenaries and common criminals, above the laws that they expected their own citizens and leaders to obey.
In 2002 Congress passed the American Servicemembers Protection Act (ASPA), which hampered U.S. cooperation with the Court and sanctioned nations that ratified it by withholding funding for military financing and education. By January, 2008, at the urging of the Defense Department, these economic sanctions were eliminated.
In 2004, then Rep. George Nethercutt (R-WA) introduced an amendment to the State/Foreign Ops appropriations bill to suspend Economic Support Funds to members of the ICC who did not sign BIAs. Rep. Jim Kolbe (R-AZ), the Republican chair of the appropriations subcommittee, spoke strongly against this amendment when it came to 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.
Now, thanks in large part to the work of House Foreign Operations and State Sub-committee chair Nita Lowey (D-NY) and her staff, the language has been removed from appropriations bill. Although her counterpart in the Senate, Patrick Leahy (D-VT) has successfully kept this language off of the Senate bill for many years, House Republican opposition ensured it remained in the final bill that went to President Bush.
With the removal of the Nethercutt language, the BIA campaign is now officially over.
Except… What will the Obama administration do once nations that were forced to sign these agreements begin to withdraw from them? Stay tuned
