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last updated: 4/6/07
"Article 98" Agreements and the International Criminal Court

The Rome Statute establishing an International Criminal Court opened the possibility that U.S. military personnel and other citizens could be tried in the new tribunal for human rights crimes. The U.S. Congress rejected this idea in 2002, passing the “American Service-Members Projection Act” (Title II of the 2002 Supplemental Appropriations Act, P.L. 107-206). Among other things, this law prohibits U.S. military assistance to countries that have not signed “Article 98” agreements. An “Article 98” agreement is a bilateral pact wherein countries pledge not to seek the prosecution of U.S. citizens in the International Criminal Court.

Countries that refused to sign and ratify Article 98 agreements saw their military assistance suspended on July 1, 2003. Countries that are not party to the Rome Statute are not affected by this law.

If the country is party to the Rome Statute and an agreement is not signed, the following types of assistance are suspended: International Military Education and Training (IMET), Foreign Military Financing (FMF), Excess Defense Articles (EDA) and non-drug Emergency Drawdown Authority funds (506(b)). Section 574 of the 2005 Foreign Operations Appropriations law (P.L. 108-447), a provision known as the "Nethercutt Amendment," adds an economic-aid program, Economic Support Funds, to the list of potentially suspended programs.

Aid through anti-drug programs, such as International Narcotics and Law Enforcement (INL), Defense Department aid (Section 1004 and Section 1033), and counternarcotics drawdowns (506a2), can still be delivered.

The President is allowed to waive application of the law if he determines it to be in the U.S. national interest. As of May 2006, the Article 98 status of Western Hemisphere countries is as follows:

Country
Article 98 Status

Aid

Antigua and Barbuda Ratified an Article 98 agreement
Aid is not cut off
Argentina As the United States' only "Major Non-NATO Ally" in the region, Argentina is not subject to the American Service Members Projection Act. Aid is not cut off
The Bahamas Not a signatory of the Rome Statute
Aid is not cut off
1
Barbados Has not ratified an Article 98 agreement
Aid is cut off
Belize Ratified an Article 98 agreement
Aid is not cut off
2
Bolivia Has not ratified an Article 98 agreement
Aid is cut off
3
Brazil Has not ratified an Article 98 agreement
Aid is cut off
Chile* Not a signatory of the Rome Statute Aid is not cut off
Colombia Ratified an Article 98 agreement Aid is not cut off
4
Costa Rica Has not ratified an Article 98 agreement Aid is cut off
Dominica Ratified an Article 98 agreement Aid is not cut off
Dominican Republic Ratified an Article 98 agreement Aid is not cut off
5
Ecuador Has not ratified an Article 98 agreement Aid is cut off
El Salvador Not a signatory of the Rome Statute Aid is not cut off
Grenada Not a signatory of the Rome Statute Aid is not cut off
Guatemala Not a signatory of the Rome Statute Aid is not cut off
Guyana Ratified an Article 98 agreement Aid is not cut off
Haiti Not a signatory of the Rome Statute Aid is not cut off
Honduras Ratified an Article 98 agreement Aid is not cut off
Jamaica Not a signatory of the Rome Statute Aid is not cut off
6
Mexico Has not ratified an Article 98 agreement Aid is cut off
Nicaragua Not a signatory of the Rome Statute Aid is not cut off
Panama Ratified an Article 98 agreement Aid is not cut off
7
Paraguay Has not ratified an Article 98 agreement Aid is cut off
8
Peru Has not ratified an Article 98 agreement Aid is cut off
St. Kitts and Nevis Ratified an Article 98 agreement Aid is not cut off
St. Lucia Not a signatory of the Rome Statute Aid is not cut off
9
St. Vincent and the Grenadines Has not ratified an Article 98 agreement Aid is cut off
Suriname Not a signatory of the Rome Statute Aid is not cut off
10
Trinidad and Tobago Has not ratified an Article 98 agreement Aid is cut off
11
Uruguay Has not ratified an Article 98 agreement Aid is cut off
12
Venezuela Has not ratified an Article 98 agreement Aid is cut off
 
*Chile has signed, but has yet to ratify, the Rome Statute.

Other sites:

  • March 8, 2006 hearing of the Western Hemisphere Subcommittee of the Senate Foreign Relations Committee on "The Impact on Latin America of the Servicemembersí Protection Act"

    • [Adobe Acrobat (.pdf) format] Testimony of Dr. Peter DeShazo, director, Americas Program, Center for Strategic and International Studies
    • [HTML | Adobe Acrobat (.pdf) format] Testimony of Adam Isacson, Center for International Policy
    • [Adobe Acrobat (.pdf) format] Testimony of Dr. Ruth Wedgwood, director of the International Law and Organization Program, The Paul H. Nitze School of Advanced International Studies (SAIS), The Johns Hopkins University

  • Article 98 Agreements and Sanctions on U.S. Foreign Aid to Latin America, by Clare Ribando, March 22, 2007 [Adobe Acrobat (.pdf) format]
  • Congressional Research Service, Article 98 Agreements and Sanctions on U.S. Foreign Aid to Latin America, April 10, 2006 [Adobe Acrobat (.pdf) format]
  • U.S. Southern Command, "Information Paper on the International Military Education and Training Program," March 2005 [Adobe Acrobat (.pdf) format]
  • U.S. Southern Command, "De-linking IMET from ASPA" and "ASPA and Article 98/ICC", March 2005 [Adobe Acrobat (.pdf) format]
  • United States, Department of States, Bureau of Political-Military Affairs, American Service-Members' Protection Act (Washington: July 30, 2003), www.state.gov/t/pm/rls/othr/misc/23425.htm
  • United States, Department of Defense, Department of State, Foreign Military Training and DoD Engagement Activities of Interest in Fiscal Years 2001 and 2002: A Report to Congress (Washington: June 2004) http://state.gov/t/pm/rls/rpt/fmtrpt/2004/
  • United Nations, International Criminal Court, Rome Statute (July 1998), http://www.un.org/law/icc/statute/romefra.htm
  • United Nations, International Criminal Court: http://www.icc-cpi.int/
Text of Article 98

Article 98 Cooperation with respect to waiver of immunity and consent to surrender

1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

Text of American Service-Members Protection Act

Text of the Nethercutt Amendment

LIMITATION ON ECONOMIC SUPPORT FUND ASSISTANCE FOR CERTAIN FOREIGN GOVERNMENTS THAT ARE PARTIES TO THE INTERNATIONAL CRIMINAL COURT

SEC. 574. (a) None of the funds made available in this Act in title II under the heading `Economic Support Fund' may be used to provide assistance to the government of a country that is a party to the International Criminal Court and has not entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country.

(b) The President may, without prior notice to Congress, waive the prohibition of subsection (a) with respect to a North Atlantic Treaty Organization (`NATO') member country, a major non-NATO ally (including Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand), or Taiwan if he determines and reports to the appropriate congressional committees that it is important to the national security interests of the United States to waive such prohibition.

(c) The President may, without prior notice to Congress, waive the prohibition of subsection (a) with respect to a particular country if he determines and reports to the appropriate congressional committees that such country has entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country.

(d) The prohibition of this section shall not apply to countries otherwise eligible for assistance under the Millennium Challenge Act of 2003, notwithstanding section 606(a)(2)(B) of such Act.

 

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