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:
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.
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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