Order Code RL33337
CRS Report for Congress
Received through the CRS Web
Article 98 Agreements and Sanctions on
U.S. Foreign Aid to Latin America
March 30, 2006
Clare M. Ribando
Analyst in Latin American Affairs
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜ The Library of Congress

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Article 98 Agreements and Sanctions on
U.S. Foreign Aid to Latin America
Summary
In July 2002, the Rome Statute that created the International Criminal Court
(ICC), the first permanent world court created to judge cases involving serious
human rights abuses, entered into force. The United States is not a party to the ICC
and does not recognize its jurisdiction over U.S. citizens. The Bush Administration
has sought bilateral agreements worldwide to exempt U.S. citizens from ICC
prosecution, so-called “Article 98 agreements.”
There has been strong bipartisan support for legislation aimed at protecting U.S.
soldiers and civilian officials from the jurisdiction of the ICC and sanctioning some
foreign assistance to governments of countries that are parties to the ICC and that do
not have Article 98 agreements with the United States. In 2002, Congress passed the
American Servicemembers’ Protection Act or ASPA (P.L. 107-206, title II), which
prohibits military assistance to countries that are party to the ICC and that do not
have Article 98 agreements. The Nethercutt Amendment to the FY2005 Consolidated
Appropriations Act (H.R. 4818/P.L. 108-447) and FY2006 Foreign Operations
Appropriations Act (H.R. 3057/P.L. 109-102) prohibited some economic assistance
to the governments of those same countries that do not have Article 98 agreements.
Twelve Latin American countries (including Brazil, Bolivia, Ecuador, and Mexico)
have been denied U.S. foreign assistance as a result.
Some Members of Congress and Bush Administration officials have expressed
concerns about the unintended effects of these sanctions on U.S. relations with Latin
America. Policymakers are considering some options to mitigate these effects
without undermining ASPA or diplomatic efforts to secure Article 98 agreements.
For more information on U.S. policy with respect to the ICC, see CRS Report
RL31495, U.S. Policy Regarding the International Criminal Court, by Jennifer
Elsea. This report will be updated periodically.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
U.S. Policy on ICC Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Bilateral Immunity (“Article 98”) Agreements . . . . . . . . . . . . . . . . . . . . . . . 2
Congressional Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The American Servicemembers’ Protection Act (ASPA) . . . . . . . . . . . . . . . 2
The Nethercutt Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Article 98 Agreements with Latin America and the Caribbean . . . . . . . . . . . . . . . 3
Article 98 and U.S. Aid to Latin America and the Caribbean . . . . . . . . . . . . . . . . 4
Military Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Economic Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
U.S. Policy Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Administration Views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
List of Tables
Table 1. Status of ICC and Article 98 Agreements in Latin America
and the Caribbean . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Table 2. Effects of ASPA Sanctions on Military Assistance to Latin America
and the Caribbean . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Article 98 Agreements and Sanctions on US
Foreign Aid to Latin America
Background
In July 2002, the Rome Statute that created the International Criminal Court
(ICC) entered into force. The ICC is the first permanent world court with jurisdiction
to try individuals accused of war crimes and other serious human rights abuses.1 The
United Nations, human rights groups, and most democratic nations supported the
creation of the ICC. As of March 2006, some100 countries have ratified the Rome
Statute and are members of the ICC. However the United States is not a party to the
court and does not recognize ICC jurisdiction over U.S. soldiers or civilians serving
in other countries.
The ICC, comprised of eighteen judges and based in The Hague, may hear cases
referred to it by the U.N. Security Council or by the states that are parties to the court.
The ICC’s lead prosecutor may also initiate investigations. Before a case may be
tried, the ICC must work with national law enforcement agencies that, with support
from the international community, must make arrests and send defendants to The
Hague. Although the court has yet to put any defendants on trial, it issued its first
arrest warrants in October 2005 for the five leaders of a group of armed rebels that
have allegedly committed atrocities in northern Uganda for some 20 years.
U.S. Policy on ICC Immunity
Although the United States initially supported the idea of establishing an
international criminal court, fundamental objections to the proposed court’s
jurisdiction led the United States to vote against the Rome Statute. The United
States’ primary objections to the Rome Statute focus on the ICC’s possible assertion
of jurisdiction over U.S. soldiers who could be charged with “war crimes” resulting
from legitimate use of force or U.S. civilians who could be charged for conduct
related to carrying out U.S. foreign policy initiatives. Accordingly, the United States
has sought immunity provisions through the U.N. Security Council for U.N.-
authorized peacekeeping operations, and has pursued bilateral agreements with
countries that are parties to the ICC in order to preclude extradition or surrender of
U.S. citizens from each respective country to the ICC.
1 These include genocide, crimes against humanity, war crimes, and potentially the crime
of aggression. See CRS Report RL31495, U.S. Policy Regarding the International Criminal
Court, by Jennifer Elsea.

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Bilateral Immunity (“Article 98”) Agreements
Since 2003, the Bush Administration has sought bilateral agreements worldwide
to exempt Americans from ICC prosecution, so-called “Article 98 agreements.” As
of March 15, 2006, the United States has concluded 100 such agreements.2 These
agreements involve each state promising that it will not surrender citizens of the
other signatory to the ICC, unless both parties agree in advance to the surrender.
Supporters of the policy say that these agreements are not unlike the status of forces
agreements (SOFAs) routinely negotiated to protect U.S. soldiers serving abroad
from prosecution in foreign courts and are consistent with Article 98 of the Rome
Statute. Critics have dismissed Article 98 agreements as unnecessary and accused
the U.S. government of “blackmailing” developing countries, many of which are
heavily dependent on U.S. assistance, into adopting them.3
Congressional Action
There has been strong bipartisan support for legislation aimed at protecting U.S.
soldiers and civilian officials from the jurisdiction of the ICC and sanctioning some
foreign assistance to governments of countries that are parties to the ICC and that do
not have Article 98 agreements with the United States.
The American Servicemembers’ Protection Act (ASPA)
The American Servicemembers’ Protection Act or ASPA (P.L. 107-206, Title
II), prohibits military assistance to countries that have not signed Article 98
agreements. On July 1, 2003, pursuant to the ASPA, the Bush Administration
terminated military assistance to governments of countries that had not signed Article
98 agreements. Under the legislation, NATO countries or major non-NATO allies
are exempted from those military aid restrictions.4 ASPA also gives the President the
authority to waive the prohibition on military assistance without prior notice to
Congress if he determines and reports to the appropriate committees that such
assistance is important to the national interest. ASPA has affected International
Military Education and Training (IMET) and Foreign Military Financing (FMF)
assistance.
The Nethercutt Amendment
Section 574 of the FY2005 Consolidated Appropriations Act (H.R. 4818/P.L.
108-447) prohibited Economic Support Funds (ESF) assistance to the governments
of countries that have not entered into an Article 98 agreement with the United
2 “Article 98 Agreements and the United States,” Georgetown University Law Library,
Available at [http://www.ll.georgetown.edu/intl/guides/article_98.cfm].
3 Nicholas Kristof, “Schoolyard Bully Diplomacy,” New York Times, October 16, 2005.
4 Major non-NATO allies of the United States include Argentina, Australia, Bahrain, Egypt,
Israel, Japan, Jordan, Kuwait, Morocco, New Zealand, Pakistan, the Philippines, South
Korea, and Thailand.

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CRS-3
States. Some countries, including NATO members and major non-NATO allies, are
exempted from that aid restriction. The President could also waive the prohibition
on economic assistance for selected countries without prior notice to Congress if he
determined and reported to the appropriate committees that such assistance was
important to the national interest. The language also stipulated that countries that
have been deemed eligible for Millennium Challenge Account grants will not lose
MCA eligibility status due to the Article 98 issue. The Nethercutt Amendment was
re-enacted by the 109th Congress as part of the FY2006 Foreign Operations
Appropriations Act (H.R. 3057/P.L. 109-102). Unlike the FY2005 appropriation,
however, the FY2006 appropriation requires that the President give Congress notice
before he invokes a waiver, but that waiver may apply for any country that he deems
to be of strategic interest to the United States. It also stipulates that, since ESF may
be obligated over a two-year period, any leftover funds from FY2005 may now be
made available for democracy and rule of law programs notwithstanding the
provisions of Sec. 574 of P.L. 108-447. Nethercutt provisions will expire at the end
of FY2006 and must be re-enacted in order to continue.
Article 98 Agreements with
Latin America and the Caribbean
As of March 2006, the United States has concluded Article 98 agreements with
fifteen countries in Latin America and the Caribbean, thirteen of which are in force.
The first table at the end of this report depicts the status of each country in the region
with respect to the ICC, Article 98, and sanctions in U.S. military and economic
assistance. Countries that are subject to sanctions under the ASPA and the
Nethercutt amendment are those that are both parties to the ICC and that have not
entered into an Article 98 agreement with the United States. Those countries include
Barbados, Bolivia, Brazil, Costa Rica, Ecuador, Mexico, Paraguay, Peru, St. Vincent
and the Grenadies, Trinidad, Uruguay and Venezuela. Although it has not signed an
Article 98 agreement, Argentina is exempt from sanctions as it was declared a “major
non-Nato ally” in 1998. Bolivia initially received a six-month waiver from cuts in
U.S. military assistance that began in July 2003 because it had signed, but not
ratified, an Article 98 agreement. The waiver expired in early 2004.
Most of the Article 98 agreements for Latin America that are currently in force
were signed in 2003. In the past two years, only four countries in Latin America and
the Caribbean have signed Article 98 agreements. In October 2005, Mexico became
the 100th country to ratify the Rome Statue despite the prospect of losing military and
economic assistance from the United States.5 Chile is likely to ratify the Rome
Statute in the next few months and is also unlikely to conclude an Article 98
agreement.
5 “Cut in Military Aid Fails to Budge Fox on ICC,” Latin American Weekly Report, February
14, 2006; “U.S. Could Cut Off Aid to Latin American Countries Over ICC,” EFE News
Service, November 19, 2005.

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Article 98 and U.S. Aid to
Latin America and the Caribbean
The ASPA and the Nethercutt Amendment have had an impact on U.S. foreign
assistance to Latin America and the Caribbean. The impact of ASPA and Nethercutt
provisions on U.S. foreign aid to the region is depicted in the second table at the end
of this report.
Military Assistance
Pursuant to the American Servicemembers’ Protection Act or ASPA (P.L. 107-
206, title II), the Bush Administration terminated military assistance to governments
of countries that had not signed Article 98 agreements as of July 1, 2003. The
military assistance prohibition has included International Military Education and
Training (IMET) and Foreign Military Financing (FMF). The IMET program
provides training on a grant basis to students from allied and friendly nations. FMF
provides grants to foreign nations to purchase U.S. defense equipment, services, and
training. In FY2003, prior to ASPA, the United States provided some $4.65 million
in IMET among the 12 countries that are now sanctioned by ASPA. This funding
enabled 771 military officers and civilian officials from those countries to receive
training in the United States. In FY2004, aside from Bolivia, which received a
temporary waiver from ASPA provisions, none of those countries participated in
IMET. ASPA-related sanctions resulted in a loss of $1.9 million in IMET funding
in FY2005 and $1.3 million in FY2006.
U.S. Southern Command officials also assert that FMF losses, totaling some
$4.4 million in FY2005 and $3 million in FY2006, have made military
modernization projects difficult for the affected countries to continue. Others have
responded that the effects of IMET and FMF funding losses have not been that
significant when one considers that they have been divided among 11 countries and
have only been in effect for the past few years.
Although military assistance losses may not be significant when viewed from
a regional perspective, they have resulted in some acute aid cuts for particular
countries, including Bolivia, Ecuador and Peru. In addition, Mexico was originally
slated to receive $1.1 million in IMET in FY2006 and, for the first time, some $2.5
million in FMF funding to purchase weapons and equipment. Those funds have been
frozen since Mexico signed on to the ICC in October 2005 and have been cut to
$45,000 in the case of IMET and “zeroed out” in the case of FMF in the FY2007
Administration budget request.
Economic Assistance
Through the security-related ESF program, the United States provides economic
aid to countries of strategic interest to U.S. foreign policy. Funding decisions are
made by the State Department; programs are managed by USAID and the State
Department. Strategic countries of interest to the United States are generally located
in the Middle East or South Asia, but 11 Latin American countries have received
some ESF funding in recent years, with Bolivia, Ecuador, Mexico, and Peru among

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CRS-5
the largest recipients. In FY2004, ESF assistance to countries that are now subject
to Nethercutt aid restrictions totaled at least $42.6 million, including some $11.4
million for Mexico and $10.5 million for Ecuador. ESF funds were spent on a
variety of projects including democracy, rule of law, and economic growth programs.
Projected ESF losses for the governments of affected countries due to Nethercutt
restrictions could be significant for FY2005 and FY2006 budget cycles; however, a
significant portion of the funding scheduled to be cut is being reprogrammed to non-
governmental organizations. Funds may be distributed for certain programs as long
as the governments in question do not benefit directly from them.
U.S. Policy Approaches
On March 8, 2006, the Subcommittee on Western Hemisphere Affairs of the
Senate Foreign Relations Committee held a hearing on the “Consequences for Latin
America of the American Servicemembers’ Protection Act.” Subcommittee Chair,
Senator Norm Coleman, expressed concern that, as a result of the ASPA sanctions,
the United States is “missing key opportunities to engage officers...from the
sanctioned countries” and that this could lead to “a loss of U.S. diplomatic influence
in the region.”6
Witnesses focused their testimonies on describing the political and military
effects that ASPA and Nethercutt sanctions have had on countries in Latin America
and the Caribbean. One analyst asserted that the loss of IMET is severing “an
important linkage between future military leaders [from the region learning
about]...the U.S. model of civilian control of the military.” Reduced opportunities
in the United States, he added, may lead countries in the region to look elsewhere,
including China, Russia, or Venezuela for training. Similarly, ESF restrictions may
hamstring both U.S. bilateral and regional efforts to push desperately needed
structural reforms, especially in the Andean countries.7 Another analyst asserted that
the implementation of ASPA has damaged U.S. standing in the region and that “the
effort to punish countries that don’t sign Article 98 agreements has been
perceived...as bullying or arm-twisting.”8 His testimony echoed politicians in the
region that have accused the United States of “blackmailing Latin American
governments into signing an agreement they oppose in principle.”9
The witnesses suggested several ways to mitigate the possible negative
consequences of ASPA on Latin America and the Caribbean. Those suggestions
6 Statement of the Honorable Norm Coleman, “Consequences for Latin America of the
ASPA,” Subcommittee on Western Hemisphere Affairs of the Senate Foreign Relations
Committee, March 8, 2006.
7 Hearing testimony of Peter DeShazo, Center for Strategic and International Studies,
Subcommittee on Western Hemisphere Affairs of the Senate Foreign Relations Committee,
March 8, 2006.
8 Hearing testimony of Adam Isaacson, Center for International Policy, Subcommittee on
Western Hemisphere Affairs of the Senate Foreign Relations Committee, March 8, 2006.
9 “U.S. Could Cut Aid to Latin American Countries Over ICC,” EFE News Service,
November 18, 2005.

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CRS-6
included encouraging the Bush Administration to issue national interest waivers to
key allies in Latin America or declare more countries in the region to be major non-
NATO allies (thereby exempting them from the aid restrictions). Another suggested
option would be to repeal section 2007 of the ASPA and omit the Nethercutt
provision from 2007 Foreign Operations appropriations legislation.
On March 14, 2006, General Bantz Craddock, Commander of the U.S. Southern
Command, while testifying before the Senate Armed Services Commitee, stated that
the ASPA continues to have “unintended consequences” for Latin America, and that
without IMET funding, countries have been unable to afford the unsubsidized cost
of courses offered in the United States. He stated that “this loss of engagement
prevents the development of long-term relationships with future [Latin American]
military and civilian leaders.” Senator John McCain agreed with General Craddock’s
concerns about ASPA sanctions. He asserted that the United States was paying “a
very heavy price” in countries where military aid programs have been cut, and
suggested that perhaps sanctions could be eased by an amendment to the $91 billion
Emergency Supplemental Appropriations Act for Defense, the Global War on Terror,
and Hurricane Recovery, 2006 (H.R. 4939). His concerns about military aid cuts
were echoed by Senators John Warner, Carl Levin, Hillary Clinton, and James
Inhofe.10
Administration Views. The Bush Administration appears to be divided over
whether to continue linking U.S. assistance to Article 98 agreements. Secretary of
State Condoleezza Rice has recently acknowledged that invoking ASPA sanctions
on key U.S. military allies may be “sort of the same as shooting ourselves in the
foot,”and that waivers of military aid restrictions are being considered on a case-by-
case basis.11 The Defense Department’s new Quadrennial Defense Review goes
further, calling for a complete de-linking of military training programs from Article
98 agreements. While the Defense Department, and particularly the U.S. Southern
Command, oppose ASPA sanctions on military aid, the Bureau of Political-Military
Affairs of the State Department, once overseen by current U.N. Ambassador John
Bolton, reportedly strongly supports keeping the sanctions in place.12 This internal
division may be one of the reasons why both State and Defense Department officials
declined to testify at the March 8, 2006 hearing of the Senate Foreign Relations
Committee on this topic. Some observers note that the possibility of waivers of
military aid restrictions should not be interpreted as U.S. support for the ICC.
10 “Combatant Commander’s Military Strategy and Operational Requirements in Review of
the FY2007 Defense Budget,” Hearing of the Senate Armed Services Committee, March 14,
2006; CQ Transcriptions.
11 Pablo Bachelet, “U.S. Sanctions Could Be Waived,” The Miami Herald, March 15, 2006.
12 Jackson Diehl, “A Losing Latin Policy: Are We About to Punish Democratic Allies?”
Washington Post, March 10, 2006.

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Table 1. Status of ICC and Article 98 Agreements in
Latin America and the Caribbean
Rome
Party to
Article 98
Subject to U.S.
Country
Statute
ICC
Agreement
Aid Cut off?
Antigua and Barbuda
X
X
X
No
Argentina
X
X
Exempt
Bahamas
X
No
Barbados
X
X
Yes
Belize X
X
X
No
Bolivia
X
X
Signed, not ratified
Yes
Brazil
X
X
Yes
Chile
X
No
Colombia
X
X
X
No
Costa Rica
X
X
Yes
Dominica
X
X
No
Dominican Republic
X
X (a)
X
No
Ecuador
X
X
Yes
El Salvador
X
No
Grenada
X
No
Guatemala
Signed, not ratified
No
Guyana
X
X
X
No
Haiti
X
X
No
Honduras
X
X
X
No
Jamaica
X
No
Mexico
X
X
Yes
Nicaragua
X
No
Panama
X
X
X
No
Paraguay
X
X
Yes
Peru
X
X
Yes
Saint Kitts and Nevis
X
No
Saint Lucia
X
No
Saint Vincent and the
X (a)
Yes
Grenadines
Suriname
No
Trinidad and Tobago
X
X
Yes
Uruguay X
X
Yes
Venezuela
X
X
Yes
a. Indicates accession to the ICC for those countries that were not original signatories of the Rome Statute.

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Table 2. Effects of ASPA Sanctions on Military Assistance to
Latin America and the Caribbean
($ in thousands)
FY2003
FY2003
FY2004
FY2004
FY2005
FY2005
FY2006
FY2006
FY2007
FY2007
Country
IMET
FMF
IMET
FMF
IMET
FMF
IMET
FMF
IMET
FMF
Loss
Loss
Loss
Loss
At-Risk
At-Risk
At-Risk
At-Risk
Barbados
125
50
Bolivia
800
2,000
589
3,976
800
1,984
800
1,800
45
25
Brazil
483
50
45
Costa Rica
336
50
45
Ecuador
645
990
300
992
50
750
45
25
Mexico
1,250
N/A
N/A
N/A
N/A
50
45
Paraguay
297
250
50
45
Peru
592
990
300
992
50
300
45
25
St. Vincent
88
133
50
Trinidad/Tobago
150
390
50
45
Uruguay
450
990
150
397
50
150
45
Venezuela
683
50
45
Totals
4,649
5,360
589
3,976
1,933
4,365
2,450
3,000
450
75

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