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.

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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 Servicemembers’ 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.