Article 98 Agreements and Sanctions on U.S. Foreign Aid to Latin America Page: 6 of 14
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CRS-3
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.
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." On
May 2, 2005, Angola became the 100th country to sign an Article 98 agreement.7 The
State Department has not publicly announced the signing of any other Article 98
agreements since that time, but a few more agreements may have been concluded.
Article 98 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.
Article 98 Agreements with Latin America
The United States has concluded Article 98 agreements with fifteen countries
in Latin America and the Caribbean, thirteen of which are in force. Table 1 depicts
the status of each country in the region with respect to the ICC and Article 98.
Countries that are subject to sanctions under legislation 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
7 "U.S. Signs 100E Article 98 Agreement," U.S. Department of State, Press Release, May
2, 2005. Available at [http://www.state.gov/r/pa/prs/ps/2005/45573.htm].
8 Nicholas Kristof, "Schoolyard Bully Diplomacy," New York Times, Oct. 16, 2005.
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Ribando, Clare M. Article 98 Agreements and Sanctions on U.S. Foreign Aid to Latin America, report, March 22, 2007; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc806637/m1/6/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.