The term “Article 98 agreement” refers to the provision of the Rome Statute establishing the International Criminal Court that prohibits the Court from prosecuting someone located within an ICC member state if doing so would cause the member state to violate the terms of other bilateral or multilateral treaties to which it may be a party.
Since the summer of 2002, the Bush administration has aggressively sought to conclude these agreements, also known as bilateral immunity agreements (BIAs), with every country in the world. Citizens for Global Solutions has been able to verify that the United States has entered into BIAs with approx 97 countries. However many of the ICC member states have refused to sign a BIA because they believe that doing so would breach their legal obligations under the Rome Statute.
By refusing to sign a BIA, many U.S. allies lose their U.S. military aid and are at risk of losing additional economic support funds. Countries are at risk of losing U.S. aid because of two provisions attached to U.S. appropriations legislation, the American Servicemembers' Protection Act (ASPA) and the Nethercutt Amendment. There are serious unintended consequences associated with this policy. By way of illustration, the Economic Support Funds (ESF) earmarked for Brazil (FY 05-07) and at risk under the Nethercutt Provision would:
"…be used for the promotion of sustainable economic growth and regional stability, expansion of free trade, control of international crime, terrorism and drug trafficking, poverty alleviation, environmental protection, and reduction of infectious disease. Brazil has the largest economy in South America and is home to significant U.S. investment. The U.S. and Brazil frequently cooperate effectively on numerous issues, including promoting democratic values and stability in the region."
Regardless of the type or amount of aid cut or exempted, the U.S. must abandon its underlying policy of penalizing countries simply for being members of the ICC. The simple fact is that the ICC is of utmost importance to these countries, and is widely viewed as the only impartial, effective legal institution capable of providing justice to victims of war crimes, genocide, and crimes against humanity. At CGS we believe that the U.S. must find less alienating ways of addressing its concerns about the Court.
To that end it is encouraging to see many in Congress wish to remove the Nethercutt restriction. FYI I am including a letter below outlining some of the concerns of civil society on this matter.
May 30, 2008
Dear Member of Congress,
As Congress begins the FY09 appropriations process, we, the undersigned organizations, would like to bring to your attention an important policy matter tied to the State/Foreign Operations appropriations bill. Since the summer of 2002, the Bush administration has aggressively sought to conclude bilateral immunity agreements (BIAs) with almost all countries, including every country in the world that has ratified the International Criminal Court (ICC) treaty. Many nations have refused to sign a BIA because they believe that doing so would breach their legal obligations under the Rome Statute, the treaty that established the Court. Countries, including those not party to the Court, have also refused in order to protect their sovereignty and out of respect for the ICC's values and purposes.
BIA agreements are of dubious benefit and the quest to secure them is a source of considerable friction between the U.S. and its allies in Europe, Africa, and Latin America. In the meantime the ICC has opened cases in Sudan, Uganda, and the Democratic Republic of Congo in an attempt to bring to justice some of the world's most heinous criminals. Rather than continue to support a policy that empowers non-cooperation with the Court, we urge Congress instead to include text in this year's appropriations bill that has been suggested by Representative Betty McCollum (D-MN), stipulating that “none of the funds made available in this Act under the heading ”Economic Support Fund” shall be restricted based on the relationship between any government and the International Criminal Court.”
The ICC treaty known as the Rome Statute, respects the Status of Forces (SOFA) and Status of Mission (SOMA) agreements that protect U.S. service personnel and civilian officials. Unfortunately, BIAs go much further by shielding private citizens and foreign U.S. contractors from the ICC. This makes BIAs especially offensive to other countries by forcing them to give up their sovereign right to apply their own legal procedures , in this case making use of the ICC , to persons who commit crimes on their territory.
Moreover, because they are bilateral in nature, BIAs can also shield foreign war criminals from the Court's jurisdiction, even if they are in U.S. custody. We strongly believe the current Congress should not continue to support this failed Bush administration initiative.
In 2004, Congress passed the Nethercutt Amendment, which threatened to cut off vital Economic Support Funds (ESF) to countries unwilling to sign BIA agreements. Former Rep. Jim Kolbe, then Republican chair of the Appropriations Subcommittee, spoke strongly against this amendment when it came to the House floor: "At a time when we are fighting the war on terrorism, reducing this tool of diplomatic influence is not a good idea. If we accept [this amendment], the U.S. will be hamstringing itself, placing a straitjacket on its diplomatic tools" Although the Nethercutt language was not included in the FY07 Foreign Operations appropriations bill, it was unfortunately included, at the request of House appropriators, in the Consolidated Appropriations Act, 2008 (H.R. 2764, Section 671).
Congress has already recognized the negative impact of the BIA campaign and wisely voted to repeal two similar BIA related sanctions which were signed into law by the president: on Foreign Military Financing (FMF) and International Military Education and Training (IMET). House appropriators should bring a complete end to this counterproductive policy by adopting the McCollum language as part of the FY09 State/Foreign Operations appropriations bill.
One of our staff members will be in contact with your staff to answer any questions or respond to any concerns. We look forward to thanking you for your support on this important matter.
Sincerely,
Americans for Democratic Action
Amnesty International USA
Better World Campaign
Center for American Progress
Church Women United
Citizens for Global Solutions
Council for a Livable World
Evangelical Lutheran Church in America
Friends’ Committee on National Legislation
Genocide Intervention Network
Human Rights First
Human Rights Watch
Maryknoll Office for Global Concerns
National Association of Social Workers
National Education Association
National Association of Evangelicals
Open Society Policy Center
Peace Action and Peace Action Education Fund
Presbyterian Church USA
United Church of Christ, Justice and Witness Ministries
United Methodist Church, General Board of Church and Society
United Nations Association , USA
Universal Human Rights Network
Unitarian Universalist Association of Congregations
World Organization for Human Rights, USA
