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U.S. Dealing with ICC Concerns "Constructively"

U.S. Dealing with ICC Concerns "As Constructively as Possible"

State's Lincoln Bloomfield outlines U.S. approach

The United States is attempting to put forward its concerns about the International Criminal Court (ICC) and to implement legislation reflecting those concerns in a manner "as constructive as possible," says Assistant Secretary of State for Political-Military Affairs Lincoln Bloomfield.

Bloomfield held a press conference in Brussels July 17 to explain the U.S. approach to the ICC.

The U.S. goal, he said, "is not at all to undermine the ICC .... Our goal is purely to ask that our own concerns over sovereignty be accommodated in a manner which we believe is consistent with the Rome Treaty under Article 98."

He said the U.S. concerns have led the Congress of the United States to pass a law called the American Service Members Protection Act (ASPA), which requires President Bush to issue a waiver in order for military aid to continue to countries that signed the Rome Statute establishing the ICC unless they have also signed Article 98 agreements exempting Americans from war crimes prosecution.

Under the agreements the United States is trying to negotiate, Bloomfield explained, " it is possible for an [accused] American that is in another country to come to the U.S. and, in that case, perhaps face prosecution if the crime exists under U.S. jurisprudence. Alternatively, the option still exists for the U.S. government not to seek extradition of the American, and to permit the American to be tried by the ICC."

He also pointed out that countries frequently set up arrangements to protect their nationals from prosecution by war crimes tribunals. "If you look at the arrangements that were required before the countries took control of, for example, the ISAF [International Security Assistance Force] in Kabul. There were provisions that were mandated by those governments that have to do with making sure that everyone associated in any way with that operation is not subjected to tribunals."

He continued, "When we look at what our European friends do in similar situations, they too insist on a scope which is not unlike what we're talking about when it comes to their own involvements overseas.... I'm not trying to resolve the legal issue, but I want Europeans to understand that at a pragmatic level Americans see their own position as quite pragmatic and quite reasonable, and not different, really, than what European political leaders require when it comes to their own nationals."

Bloomfield also answered questions about the Defense Trade Security Initiative and other defense procurement issues.

Following is a transcript of the press conference:

JULY 17, 2003

MODERATOR: Mr. Bloomfield is here this morning to address defense cooperation issues, recent developments with the American Service Members Protection Act, and the International Criminal Court (ICC) agreements, and this is an on-the-record briefing. We have about half an hour. Thank you very much.

LINCOLN P. BLOOMFIELD, JR.: Thank you very much. I will just say a word or two, and then invite your questions. I know time is scarce. First of all, it is a pleasure to be here and meet with you.

My portfolio is worldwide, and one of the functions in my bureau is the decision authority on arms transfers and all the licensing of defense technology and defense goods. So, for that aspect of our work I will be providing a briefing at a seminar tomorrow that has been organized by Secretary General Lord Robertson of NATO, at which time I and a colleague from the Defense Department, Deputy Under Secretary Lisa Bronson, will describe some very concerted efforts the Bush Administration has been making to improve the licensing process for defense exports, and moreover to review policy such that we can work more closely with our European friends and allies to have the most modern and inter-operable military forces in the future. So, that will be tomorrow's main focus.

It is a pleasure to meet with colleagues from the EU and also from the U.S. Mission to the EU. We have discussed recent developments--the news stories that followed July 1, when a U.S. law came into effect which affected some of our assistance accounts. The American Service Members Protection Act (ASPA) is a law which the Congress of the United States passed, reflecting some of the concerns that they held, and do hold, about the International Criminal Court. President Bush and the Administration are implementing the law. We are doing so in a manner which we believe is as constructive as possible, in a way that allows us to continue our conversation with countries which have not signed a bilateral, non-surrender agreement with us, and in a way in which does not rule out the possibility of continuing assistance. There is a presidential waiver authority which could permit President Bush to continue important assistance to affected countries, but those decisions are still pending.

So, my goal is to try to explain the Bush administration's approach, which is not at all to undermine the ICC but rather to respect that fact that the ICC is here, and that many countries have become parties. Our goal is purely to ask that our own concerns over sovereignty be accommodated in a manner which we believe is consistent with the Rome Treaty under Article 98. I recognize that there are differences between what the U.S. is proposing in these agreements and the EU guidelines. It is my hope, and Secretary Powell's hope, that an important issue for Europe and for the United States will not continue to be an issue of disagreement, because we have too many important and strategic matters that merit our full cooperation. So, in that spirit I am here today. I'll be happy to take your questions.

Q: I would like to know if you have already met the NATO coordinator --

BLOOMFIELD: Political coordinator.

Q: I would like to know, what was their reaction? Are they joined by the European Union after the talks?

BLOOMFIELD: I cannot speak for the NATO or European Union representatives. I think they can best speak for themselves.

Q: Can you tell me about their reaction?

BLOOMFIELD: Well, we had a very good meeting. I think it was more to explain my portfolio in the State Department, the issues that I cover, not all of them pertaining to the ICC. We have many other duties as well. So, we talked about many other issues concerning non-proliferation concerns and the like, defense, trade; we covered many issues. I welcomed the dialogue, and I hope that we can continue it.

Q: This is more concerning some issues with some of your allies about Iraq. As you know in the last days, there has been a very big discussion about some papers sent from Italian services, American services, and British services concerning the Iranian foreign minister; they proved to be false. The Italian government and foreign ministry continue to deny that they sent these papers, (inaudible). So, I was wondering if you can tell me if they received these papers ... anyway, if they arrived?

BLOOMFIELD: Unfortunately, I'm afraid that I do not have any information on this matter. I'm afraid I'm not able to answer the question because I just don't know the answer.

Q: I was just wondering if you could elaborate on, you said that you didn't want the ICC to continue to be an area of disagreement between the EU and the U.S. What specifically did you have in mind? Will the U.S. now drop its request, its requirement that a lot of these countries sign, these immunity agreements? Is that what we're talking about? Is it a kind of softening of U.S. policy?

BLOOMFIELD: I've not come here as a negotiator in any way. I think what is important is to try to explain the U.S. position more fully. I think it has been a long time since the U.S. government has taken the opportunity to speak to our friends in Europe in some detail about our own thinking on the issue. So, I cannot tell you from a negotiation standpoint whether the EU or the U.S. should change anything.

I think that the best that I can do is to try and make people understand, first of all, that President Bush and the Administration are not seeking to undermine the ICC, that they accept the institution. They also applaud the intentions of the goal to render justice for war crimes, genocide, and crimes against humanity. These are priorities and goals which the American people share. In fact, the United States, from a sovereign basis, has a very solid record of prosecutions for war crimes--perhaps as complete a record of prosecution as any country in the world.

We feel that sometimes people interpret the Americans as trying to escape justice, or to seek immunity for war crimes, and nothing can be further from the truth. We pride ourselves in taking great concern over genocide, war crimes, and crimes against humanity. We are a strong supporter of the tribunals that have been mandated by the UN Security Council, and so I'm not sure that that point has been well understood.

What we are seeking to negotiate with countries is a non-surrender agreement. A non-surrender agreement means that according to the Rome Treaty, sovereign arrangements are given preference under Article 98. Under the agreements that we are negotiating, it is possible for an American that is in another country to come to the U.S. and, in that case, perhaps face prosecution if the crime exists under U.S. jurisprudence. Alternatively, the option still exists for the U.S. government not to seek extradition of the American, and to permit the American to be tried by the ICC. This is permissible, and it is possible under the agreements we are seeking to negotiate. I'm not sure that that has always been understood either. So, there are several aspects to the American position which we would like to share and explain merely to advance the conversation.

Q: Frankly, it is an upward struggle that you are facing, because you are coming to Europe when France and Britain and the U.S. at the moment have got Guantanamo Bay. It's a real PR problem. The question I want to ask is this: I think, just as a European, what upsets the Europeans is your liberal interpretation of Article 98. I mean, you have the status of all your military and your government people, and when you talk to member states I think their one main complaint is that it's a blanket, that it's for every U.S. person. Now how do you respond to this, given the safeguards of the ICC?

BLOOMFIELD: Well, thank you very much. In the first instance I'm not sure--I won't ask you to explain the premises of your question, but with regard to Guantanamo Bay, the issue is, of course, the terrorists who attacked New York, Washington, and Pennsylvania. So, I don't think there is a great deal of dissension about the notion that the people who may have done this, and were associated with that activity, ought to be detained in the first instance when we find them in the hills of Afghanistan.

Q: I know, I'm just saying the struggle you're facing--

BLOOMFIELD: That's a discussion that I think reasonable people are prepared to have. We certainly don't avoid this discussion at all. With respect to the scope, I am not a lawyer. This is a layman's perspective, but the countries of Europe, in other words the advanced industrial countries who have been allies of the U.S. and have great experience in military matters and great knowledge of conflicts around the world, have their own perspective when they have their interests encumbered in conflicts around the world. We've taken careful note of, for example, Article 124 of the Rome Treaty, which offers an immunity from the crimes overseen by the ICC and contains a scope provision of its own, if you read it.

One EU member has already availed itself of this seven-year immunity from prosecution for war crimes, and that scope provision in Article 124 says "all nationals." I find that that's an entirely reasonable and practical approach. I would also look at recent deployments of others, of European states, if you look at the arrangements that were required before the countries took control of, for example, the ISAF [International Security Assistance Force] in Kabul. There were provisions that were mandated by those governments that have to do with making sure that everyone associated in any way with that operation is not subjected to tribunals.

Again, there's a certain element of pragmatism that I think the general population and political leaders can appreciate. The United States, in that sense, is not very different from its European friends. Not only not different, but we may have an even greater burden, in the sense that the U.S. by next year will have more than 50 treaty security commitments around the world--in other words, 50 countries will be dependent on the U.S. as the ultimate guarantor of their security against aggression. We have had hundreds of thousands of our forces around the world deployed in the last year, to over one hundred countries.

My point is not about the scope so much as to say that the United States, like it or not, whether it wishes to or not, is very much involved in the affairs of states around the world, and when you look at zones of crisis in particular, where horrific things can happen--and we hope they will not, but they do--the possibility that not just soldiers, and not just diplomats, but NGO workers and embedded reporters--of which we had 600 in Iraq--and corporate executives who are seen as having great influence in those areas in some places, and nationals who are married and living in that country, who have connections--there is always the possibility of accusation of being involved in the politics of conflict.

Therefore, from a political and pragmatic view, my appeal is that people understand that the American position is seen, at least by Americans, as being not unreasonable at all; and frankly, when we look at what our European friends do in similar situations, they too insist on a scope which is not unlike what we're talking about when it comes to their own involvements overseas. That, of course, doesn't address the legal issue that is still being debated, and I'm not trying to resolve the legal issue, but I want Europeans to understand that at a pragmatic level Americans see their own position as quite pragmatic and quite reasonable, and not different, really, than what European political leaders require when it comes to their own nationals.

Q: So, what you're doing here is you're explaining to European partners what your position is--you're not changing your position at all?

BLOOMFIELD: We were just trying to explain more about our thinking, and to simply signal that we do not welcome the fact that the Europeans and the Americans have a difference of view on this. We know that the ICC is very important to Europe and to other countries, and our strategic goal is to have the best possible relations between the United States and Europe. So really in that spirit, I think what I'm trying to do, merely, is to elaborate on the interior thinking in the United States so that Europeans will know that there really are some legitimate points of concern that underlie the position that we've taken.

Q: Could I just follow up on that. Given that these arguments that you're making are arguments that you've made for at least a year, how do you expect any breakthrough in the long time that (inaudible)?

BLOOMFIELD: Well, I don't know how much of what I've just said has necessarily been the way it's been expressed by other U.S. officials. The discussion in the past has tended to revolve very narrowly around specific provisions of the Rome Treaty and specific provisions of Article 98, etc.; what I'm trying to give is an explanation of why it is that our Congress felt there was a fundamental sovereignty issue when it passed the ASPA, and why it is that our assistance programs to a number of countries are now affected by the law. The answer, of course, is that we're a nation of laws, but that President Bush is using the tools that Congress provided--we're trying to be as constructive as possible, to continue engaging countries, rather than to use this in a punitive way.

Q: There was recently this EU-U.S. summit where the ICC was not really a topic, it was just agreed to disagree. However, we had this WMD declaration, against proliferation. I wonder, since I didn't have the chance to talk to somebody in Washington, there are several chapters which refer to generalization, or rather a universalization, of multilateral agreements on proliferation--not only on atomic stuff, but also on BMC weapons. Does this mean that the U.S. government now feels any kind of impulse to go for protocols or ratification of protocols on the BMC weapons? It sounds as if this agreement--if we asked other countries to do something on non-proliferation and international control, we have to go ahead and give a good example. So far the U.S. has retreated from several negotiations on this.

BLOOMFIELD: Well, I think the best answer for me is to say that it's not part of my responsibilities, and so it's best perhaps for our Mission to try to provide you a policy answer to your question. I handle a lot of direct bilateral matters, whereas it's the Bureau of Nonproliferation that handles all the multilateral implementation of these--particularly weapons of mass destruction and missile proliferation issues. I'm sorry, but you get another question.(laughter).

Q: (inaudible about the "Buy America" proposed legislation and the impact on European Procurement Agency policies)

BLOOMFIELD: Well, that's really two questions. It is true that there is a proposal in the Congress that would change the procurement rules in the United States rather significantly, and it is the position of the Administration that we do not favor this proposal. And so I think our national security goals, including our alliance goals, will be much better served under the existing laws, rather than this proposal that's been made.

As far as the European Procurement Agency proposal, I don't really have a specific answer to your question, except to say that we find that both in the United States and in Europe, we are in a new era--we are in an era when business has really crossed national boundaries, the defense industry is multinational.

And secondly, the control regimes, in my country as well as others, have never before had to contend with the computer age, such that in the past we were more worried about tanks, and guns, and artillery, and bombs, passing into the wrong hands, and we are still concerned about those things. But the idea that the most advanced software and design data could be sent with the click of a computer mouse, this is as much an export as a bomb. And under the U.S. rules, every computer click that sends this data across our borders is a licensable export, which has caused us to think very hard about updating the notion of how we can control risk. We have in the first instance done a lot of thinking about how the United States should modernize its process and policy, and in the second instance we hope to engage governments and industry in Europe, because for us to be successful, on both sides of the Atlantic. We must have a partnership that is at the official levels as well as at the industrial levels. That's the conversation that we're hoping to advance tomorrow.

Q: If I could just follow up on the ICC, what do you think caused the really acrimonious atmosphere? If it's not the issues at hand, was it the way that the United States went about unsigning the treaty and aggressively lobbying Eastern European countries--I mean, your message is that the U.S. position is misunderstood, in a way, or the perception is wrong. So how did we get here in the first place?

BLOOMFIELD: I don't like to try to talk about things of which I don't have direct knowledge, but there's always the possibility for a second perspective when you have one administration doing the negotiating and then another administration inheriting the process. In this case, I think one could look at President Clinton's signing statement to see that even at that stage, President Clinton recognized that this would not find favor in the U.S. Congress, and in fact his signing statement is cited in the preamble to ASPA by the Congress.

I can only report that there was acrimony--it's undeniable--when the issue of addressing the U.S.'s sovereignty concerns was matched against the renewal of the mandates for Bosnia-Herzegovina, I think in April of last year. This approach raised quite a bit of objection, and I think it's fair to say that the Bush administration listened. They listened to the advice, notably, of some of our European interlocutors, who counseled us to try a different approach, and said that the better approach would be to pursue Article 98 agreements under the Rome Treaty. In good faith, that's what we have attempted to do--recognizing, as I say, that the American approach has not found favor within the EU at this point, we understand that. But the overall intent has been to act constructively, and not in a way that would engender acrimony.

Q: You mentioned about corporations in Europe, about technologies. You mentioned official level and industrial level. Would you like to elaborate that, and would you like to combine with the existing WASSENAAR dual-use regime?

BLOOMFIELD: What I was referring to was not really a nonproliferation regime, it was actually a regulatory regime that would find greater connection between the U.S. regulatory regime and the regulatory regimes of the European countries. It may be that there are common rules and regulations increasingly in the coming years within Europe, and that's a process that we have to pay close attention to. But my point is that the time has passed when the United States regulatory regime could be fully successful by trying to control every item on the munitions list to every destination and to every use without more help from the governments of those recipient countries.

If the goal is to bring the U.S. and Europe closer together in security matters--and I think it is--if the goal is to make sure that our industries do not drift apart and become rivals, then it makes sense to us that we should become more familiar with the regulators throughout Europe, and in turn the regulators at the official level on both sides of the Atlantic need to have a greater partnership, if you will, with industry. It is impossible to eliminate risk 100%. Instead, we must manage risk intelligently, and that is the path that we are embarked upon.

Q: I think you came to Brussels a year ago and you talked to us about the progress that you were making on loosening restrictions on export controls. That was under the DTSI [Defense Trade Security Initiative] that the Clinton administration had brought in. What progress can you say has been made since you came to Brussels then, given that there are lots of people who are saying that very little progress has been made and that there are companies which are saying that since the Iraq war they expect even less progress to be made?

BLOOMFIELD: Well, first of all, I just want to comment on the premise of the question: the goal is not to loosen controls, the goal is to perfect the process such that it is efficient and it is an accurate reflection of policy. The question of the right policy is one that President Bush is contemplating right now. I'm going to disappoint you by saying that I'll have a lot to say about this tomorrow (laughter). All of that will be on the record at that time, so we will have a lot to report, and I hope people will agree that we've been working very hard on this subject, and we intend to keep working on it collegially with our defense partners.

Thank you, very nice to meet you all.

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