June 30, 2003
The Honorable Colin J. Powell
Secretary of State
U.S. Department of State
Dear Secretary Powell:
I am writing to convey our strong dismay over recent U.S. government actions towards the International Criminal Court (ICC).
We are familiar with the Bush administration's deep reservations towards the court. Administration officials have frequently expressed their concern about the ICC's potential to become a politically motivated vehicle advancing an anti-American agenda. While we strongly believe the treaty contains ample safeguards-- many of which were crafted by U.S. negotiators-- I am not writing to defend the efficacy of those checks and balances.
U.S. officials are engaged in a worldwide campaign pressing small, vulnerable and often fragile democratic governments to sign bilateral agreements with Washington. As you know, these agreements would exempt 270 million Americans and foreign nationals working under contract to the U.S. government from the authority of the court. While we believe the agreements the United States is proposing violate the ICC treaty by going beyond the letter and spirit of Article 98, I am not writing to argue the unlawfulness of these instruments.
"Whatever the administration thinks of the International Criminal Court, its tactics in pursuing these bilateral agreements are unconscionable. Other governments can plainly see that punitive measures are being used primarily against poor and relatively weak states with few options other than to give in to the United States."
Kenneth Roth, Executive Director of Human Rights Watch
Whatever the administration thinks of the International Criminal Court, its tactics in pursuing these bilateral agreements are unconscionable. Other governments can plainly see that punitive measures are being used primarily against poor and relatively weak states with few options other than to give in to the United States. Signing an agreement will put an ICC state party in breach of its legal obligations and at odds with other important national interests. This raw misuse of U.S. power makes the policy all the more objectionable.
The administration's hostility to the International Criminal Court is particularly ill-conceived given the progress made in establishing the ICC on the strongest possible basis. The confidence of governments worldwide in the court has been strengthened by the recent inauguration of 18 qualified, competent judges. Most of these jurists come from countries closely allied with the United States. The election of Luis Moreno Ocampo, most recently the Robert F. Kennedy Visiting Professor of Latin American Studies at Harvard Law School, as the court's Chief Prosecutor has further enhanced the court's credibility. No one believes Moreno Ocampo is likely to indulge in unwarranted prosecutions of American citizens.
In this context I want to draw your attention to the tactics U.S. officials are taking in their campaign to obtain bilateral agreements. We are aware of many examples of American diplomats going far beyond the provisions of the American Servicemembers' Protection Act (ASPA) to pressure small countries. This excessive pressure cannot be blamed on the ASPA. The following examples crystallize our profound concern.
Croatia: U.S. Ambassador Lawrence Rossin has recently published an article in Croatia (it is on the U.S. Embassy website) raising questions about the viability of Croatia's accession to NATO if Zagreb does not sign a bilateral immunity agreement.
Bahamas: U.S. Ambassador Richard Blankenship has publicly warned that if the Bahamas did not support the U.S. position on the ICC, a significant amount of U.S. aid would be withheld, including aid for paving and lighting an airport runway.
CARICOM: We understand that on May 23, U.S. Assistant Secretary of State Stephen Rademaker told foreign ministers of the CARICOM that they would lose the benefits of the New Horizons program if they did not sign agreements. The program, originally conceived to provide hurricane relief to countries at risk from tropical storms, now includes rural dentistry and veterinary programs.
Comoros: According to a Comorese diplomat, the United States has informed his country that a previously promised USAID project has been relocated to Djibouti following the latter's signing of a bilateral agreement.
Niger: According to a senior Ministry of Foreign Affairs official, the United States has threatened to suspend cooperative development projects if Niger does not sign a bilateral agreement.
Honduras: Government officials and legislatures have stated that the United States threatened important non-military assistance to Honduras if an agreement was not ratified by July 1.
Bosnia: Before Bosnia's signature and subsequent ratification of an agreement, Bosnian Foreign Minister Mladen Ivanic said that the U.S. message was that it would be "very difficult to continue military and other assistance" if Bosnia did not sign. We understand that Bosnia was told that the Department of State would review "dispensable programs," including economic aid.
Furthermore, while the American Servicemembers' Protection Act pertains only to ICC states parties, U.S. diplomats have obtained agreements from twenty-six non-states parties as compared to nineteen states parties. These non-states parties have no obligation to cooperate with the court.
We have also heard of cases where U.S. pressure is chilling state interest in ratifying the ICC treaty.
The Philippines: According to Philippine government officials, quoted in the local media, the United States has linked $30 million in additional military assistance to prevent Manila from ratifying the ICC Treaty.
Georgia: Government sources have told Human Rights Watch that ratification of the ICC Treaty is stalled in the President's office as "a direct consequence of U.S. pressure." Georgia has already signed an immunity agreement.
It would be good to know whether these accounts are exaggerated, or as I suspect, not only true, but part of a larger pattern. Such demands on the part of the United States weaken support for the rule of law worldwide and respect for human rights. They also deplete increasingly scarce U.S. diplomatic capital and credibility.
Moreover, because most ICC member states are democracies with a relatively strong commitment to the rule of law, the threatened aid cutoffs represent a sanction primarily targeting states that abide by democratic values. Indeed, we find it ironic that at a time when the United States has been increasing assistance to countries with poor human rights records like Pakistan and Uzbekistan, it is threatening to cut aid to struggling democracies in the Caribbean, Latin America, and Africa over this issue.
U.S. diplomats have tried to blame the European Union's support for the ICC as the cause of pressure many small countries feel in "choosing" between the United States and Europe. It is clear, however, that the pressure is coming from the United States, since the European Union is not threatening punitive measures over the ICC. These pressures are perceived as petty and mean-spirited by the U.S. government's closest allies. Indifference to this resentment is particularly counterproductive at a time when the U.S. is seeking global cooperation in the fight against terrorism.
We urge you to bring an end to the vendetta against the ICC that U.S. diplomats around the world have been compelled to carry out. This is an initiative that is likely to do far more harm to the United States than it could ever do to the court. This campaign is creating a legacy that will tar the Bush administration for years to come. With everything else taking place in the world today, the United States ought to adopt a wiser approach to the International Criminal Court.