Article 98(2) is US Strong-arm Tactic
by Rakesh Rampertab

On October 23rd, US Ambassador to Guyana, Mr. Bullen, wrote a letter to the newspapers claiming that the US only wanted to ensure US nationals were not persecuted wrongfully at the International Criminal Court, and that countries do not hand over US nationals without checking with the US first.

However, to me, Article 98 (2) under the Rome Treaty, which offers US nationals accused of war crimes immunity from being handed over to the International Criminal Court (ICC), is a case of undue intimidation and strong-arm tactic, indeed.

It is my understanding that the ICC allows (Articles 17, 18, and 19 of the Rome Treaty) for nations to try their nationals accused of war crimes. The ICC can intervene if a nation does not assume a trial under good faith. Since the US has one of the “fairest judicial systems” worldwide, it ought not to worry. Further, hasn’t the US already ensured that protective mechanisms were set to prevent potential political claims? The problem is not the ICC, but the US tradition of not subjecting its servicemen and nationals to war-crime trials anywhere. One becomes suspicious when Mr. Bullen claims that the US only asks that we “check” with them before handing someone over to the ICC.

The US cannot agree to (and will not tolerate) such a delivery for it would be contrary to its globetrotting foreign policy. It would place multitudes of Americans from servicemen to government officials to CIA operatives at great risk. While the US would readily help send Mugabe to the ICC, it cannot deliver Henry Kissenger or Ariel Sharon, without subjecting its sovereignty to the laws of a foreign body. US Secretary of Defense Donald Rumsfeld, who said such a deliver would be “illegitimate”, expressed this feeling well; “We must be ready to defend our people, our interests and our way of life.”

While one will not deny the level of fairness of the US judicial system despite its flaws, it is not immune from national or partisan biases, as was evident during the Bush-Gore elections fiasco. This is one reason why Mr. Milosovic is being tried at The Hague and not in his homeland. Further, the world is weary of US “justice.” America once dismissed the World Court verdict that charged the US of mining the Managua Harbor in Nicaragua in the eighties. Secondly, the US invaded Panama with soldiers and heavy metal music (e.g., Twisted Sisters), grabbing ex-Panamanian president, Mr. Noriega. He should have been tried in the court of Panama or the World Court; not in the US.

Secondly, the Article 98(2) is not truly an “agreement,” for it is being forced upon nations—primarily poor ones. Proper international law is orchestrated under the premise of mutual respect; nations do not “agree” to the unfavorable. E.g., Colombia initially rejected Article 98(2) as unnecessary, but was forced to comply to maintain US aid in the fight against narco trafficking. Perhaps Mr. Bullen can verify whether his counterpart (Mr. Richard Blankenship) warned Bahamas that without compliance, it would lose not only military aid but also money to pave and light an airport runway?

Worldwide, US ambassadors are mandated to promote Article 98(2) in supposed good faith, while resisting nations are indeed being “punished.” CARICOM complained over the “punitive action taken by the US Government, against the six CARICOM states-parties” of the ICC. “Punitive,” like its Latin root “punire” means “to punish.” After the July 1, 2003 deadline passed, more than two dozen nations (including some friends of the “international” coalition that invaded Iraq) such as Latvia and Lithuania have lost military aid.

US aid-or-retribution scheme is nothing new. What’s new is the ferocity with which it has been let loose upon the world since 911, making people choose between arms/money and integrity/safety. In some cases, as in Pakistan, US efforts have backfired. Amiable US-Pakistan ties caused resurgence in Islamic militancy. In a rare memo, Mr. Rumsfeld says, “We are having mixed results with al-Qaeda…we lack metrics to know if we are winning or losing the global war on terror. Are we capturing killing or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training and deploying against us? The cost-benefit ratio is against us!”

In New York more than a year ago, when the UN wanted to subject US peacekeepers (under a UN banner) to the same rules as other nationals, the US Congress threatened to withhold its UN fees. Secretary General Annan complained strongly and then backed down. We now have one rule (Resolution 1422 I believe) that exempts US peacekeepers from UN penalty, and another that makes all others prosecutable.

Long ago on a trip into an Amerindian village, former Guyanese President Forbes Burnham once said (more or less) to the village captain; “I know who is coming here with the Bibles and leaving with the diamonds.” I fear that this is Mr. Bullen’s idea of “quid pro quo,” or “something for something.” For our alliance, Guyana is given a few dozen army trucks, 4 coast guard boats, light equipment, and an observing eye closer from the US Southern Command in Florida. Whether Guyana needs “military aid” or not, is another issue—but for now, Mr. Bullen is wrong, for “quid pro quo” means not merely trade, but also trade done under a sense of equality. People feel that their right to this sense of equality has been snatched. In a matter of years, boats can sink, trucks must rot, runways erode and rifles will jam while US immunity becomes immortalized.

In removing “equal” from its lexicon, American diplomacy has moved remarkably beyond Orwellean philosophy that, “All animals are equal but some are more equal than others.” The Bush doctrine of “either you’re with us or against us” is more akin to “All people exist but most exist when we say they do.” In this superior spirit, ratifying Article 98(2) only serves to further alienate world support for US opinion. It would be wise for ambassadors to listen to world opinion and help reverse the tide in Washington. Otherwise, there will be no “widespread misunderstanding,” only widespread mistrust.

October 30, 2003
© 2001