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International Criminal Court - Article 98 Agreements Research Guide

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  • Article 98 Waivers
  • Countries that have Signed Article 98 Agreements with the U.S.

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The  International Criminal Court  (ICC) was established on July 17, 1998 when 120 countries adopted the  Rome Statute , the treaty establishing the ICC. The Rome Statute entered into force on July 1, 2002. The Rome Statute includes  Article 98 , which states:

Article 98(2)  Cooperation with respect to waiver of immunity and consent to surrender  : 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.

The international agreements mentioned in Article 98(2) of the Rome Statute are referred to by several terms, including  Article 98 agreements ,  bilateral immunity agreements  (BIAs), impunity agreements , and  bilateral non-surrender agreements . Starting in 2002, the United States began negotiating these agreements with individual countries, and has concluded at least one hundred such agreements. Countries that sign these agreements with the United States agree not to surrender Americans to the jurisdiction of the International Criminal Court.

Researchers are often interested in  whether an immunity agreement exists  between the U.S. and another country. This guide lists those Article 98 agreements mentioned in  Treaties in Force , on Thomas.gov, and any additional agreements posted to the most recent edition of  Treaty Actions . The  full-text   of the agreements  was gathered from the  U.S. Department of State's "Reporting International Agreements to Congress under Case Act" website . They are listed below by country and all documents are in pdf format.

Update History

Revised December 2009 (MMS)

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UCMJ ARTICLE 98: NONCOMPLIANCE WITH PROCEDURAL RULES

At Bilecki Law Group, We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.

Home Court Martial Defense Punitive Articles of the UCMJ UCMJ Article 98: Noncompliance with Procedural Rules

What is Article 98 of the UCMJ?

Any enlisted member of the United States armed forces who  causes delays in a procedural hearing  whether by accident, negligence or willfulness, may be prosecuted under  Article 98 of the UCMJ.  Even seemingly harmless mistakes leading to slight procedural delays may incur enormous punitive damages to service members:

  • The government will threaten your very livelihood. Your healthcare, income, and retirement could be taken from you just like that.
  • You will be forced to hide your past military service. A dishonorable or bad-conduct discharge will hound you for the rest of your life, threatening opportunities and limiting advancement.
  • You could be facing up to 5 years in prison. Your friends and family will move on with their lives while you linger in a prison cell, all because of a few delays in a court-martial case.

The government already assumes your guilt and your allies are growing scarcer by the day. A call to Bilecki Law Group may be your last best chance to fight back against Article 98 charges.

Defining Article 98 of the UCMJ

Every  article that is under the UCMJ  requires prosecutors to prove beyond a reasonable doubt a handful of critical assumptions—known as elements—to convict you of a crime. Article 98 contains two criminal acts, each with its own set of elements which must be proven by the government in your hearing or court-martial case.

  • That the accused was charged with a certain duty in connection with the disposition of a case of a person accused of an offense under the code;
  • That the accused knew that the accused was charged with this duty;
  • That delay occurred in the disposition of the case;
  • That the accused was responsible for the delay; and
  • That, under the circumstances, the delay was unnecessary

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  • That the accused failed to enforce or comply with a certain provision of the code regulating a proceeding before, during, or after a trial;
  • That the accused had the duty of enforcing or complying with that provision of the code;
  • That the accused’s failure to enforce or comply with that provision was intentional

Summary of the Elements of Article 98: Prosecutors must prove that a service member failed to perform his or her duty during court proceedings. The most serious charges under Article 98 are for service members that purposefully and knowingly delay a case. But even a slight delay in the disposing of a case will be considered an offense should the government consider it unnecessary.

Military Defense Attorney for Article 98 of the UCMJ: Strategies and Tactics

Every court martial case has underlying circumstances which will influence the final strategy. With that said, Article 98 cases often revolve around three core considerations:

  • What caused the delay; 
  • What was the accused’s connection with the delay, and; 
  • If prosecutors are claiming you purposefully failed in your duties, what motive would you have for doing so.

We’ll begin by considering these essential questions in your case:

  • Why would you purposefully delay the case in question? If the government is claiming you intentionally delayed the case, what evidence do they have to support that claim? Are you familiar with the individual that is accused of the alleged crime? We’ll press the prosecution to fully explain the alleged motive behind the delays.
  • What caused the delay in the first place? Were other parties involved in the delay besides the accused? Did the delay truly inconvenience anyone? We’ll poke holes into the prosecution’s version of events or show that the inconvenience caused by the delay was slight or non-existent.

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  • What was your connection with the delay? Were other factors at play that made it impossible for you to complete these tasks in time? If there was a complete failure to comply with your duties, were there extenuating circumstances that made it impossible for you to do so?

Never make assumptions about the government’s case against you. Before you make any decisions that could affect your trial, contact the team at Bilecki Law Group today.

Experienced Military Defense Lawyers for Article 98 Charges

We’ve been fighting—and winning—court-martial cases for years. Our experienced team of  military defense attorneys  is prepared to aggressively defend your freedom and your military career in court. 

Bilecki Law Group will help you fight back against charges under Article 98: Noncompliance with Procedural Rules

UCMJ Article 87b

Frequently Asked Questions About Article 98:

There are two possible criminal charges under Article 98, each with its own maximum sentencing:  Unnecessary delay in disposing of case:

  • Reduction to E-1
  • Forfeiture of all pay and allowances
  • Confinement for 6 months
  • Bad-conduct discharge

Knowingly and intentionally failing to enforce or comply with provisions of the code:

  • Confinement for 5 years
  • Dishonorable discharge

Bilecki Law Group will always work to win your case outright. However, our goal is to secure the best outcome possible in your case. And that may mean building a case around securing one of the lesser included offenses included within each article.  For Article 98 charges, that may mean convincing the prosecutors to lower your charges from  intentional  failure to comply with the law, to creating an unnecessary delay. Additional lesser included offenses are:

  • Article 80: Attempts

Find More Articles

  • UCMJ Article About Unlawful Detention
  • Misbehavior Before The Enemy UCMJ Article
  • Article 87 of the UCMJ: Missing Movement
  • Article 107 of the UCMJ: False Official Statement
  • Article 134 of the UCMJ

Don’t just plead guilty… Fight Back !

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ARTICLES OF THE UCMJ

ARTICLE 98 NONCOMPLIANCE WITH PROCEDURAL RULES

This article of the UCMJ covers incidents where procedural rules have not been complied with. When unnecessary delays are noted in the handling of a case pertaining to offenses under this chapter, the person responsible can be charged with violation of this article. Two situations are covered under Article 98 as follows: unnecessary, unjustifiable delay in disposing a trial and failure to enforce code or failure to comply with the code.

a) Unnecessary delays while disposing of a trial

  • That the accused was in charge of carrying out a specific duty in connection with a case involving a person who stands accused under the UCMJ.
  • That the accused was fully aware that he had been charged with this duty.
  • That there was delay in the disposition of this case.
  • That the delay was a result of the accused individual's action or lack of action.
  • That considering the prevailing circumstances, there is no justification for the delay.

Note: Circumstantial evidence may be allowed during trial to establish that the accused had knowledge of his assigned duty.

Maximum Punishment:  Persons charged with violation of this article face maximum punishment comprising bad conduct discharge, forfeiture of all allowances and pay as well as six months confinement.

b) Failure to enforce the code or failure to comply with the code

  • That the accused did not comply with the specific article of the UCMJ regulating a process that was carried pre- trial, post- trial or during the trial of a person.
  • That the accused was assigned the duty of enforcing the code or complying with the code.
  • That the accused was fully aware that he had been assigned this duty.
  • That the accused deliberately and intentionally failed to comply with or enforce the code.

Note: The word 'intentionally' means that the accused did not fail to comply with the code or fail to enforce by accident or negligence or by misunderstanding the law in good faith. He did so on purpose with clear understanding of his failure and its impact.

Maximum Punishment:  The accused faces dishonorable discharge, forfeiture of all pay and allowances and five years confinement as maximum punishment for violating this article.

POINTS TO NOTE ABOUT ARTICLE 98

  • Circumstantial evidence to prove intent and knowledge is generally admissible in these trials.
  • A person can be accused of violating this article only when his duties include some action that is relevant to the disposition of the case in question.
  • The use of unlawful command influence (Article 37) may be dealt with under this article

CONTACT A UCMJ ATTORNEY TODAY

Let a former service member fight your case.

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Joseph L. Jordan travels around the globe to represent service members in military criminal defense matters.

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2021 US Code Title 10 - Armed Forces Subtitle A - General Military Law Part II - Personnel Chapter 47 - Uniform Code of Military Justice Subchapter X - Punitive Articles Sec. 898 - Art. 98. Misconduct as prisoner

A prior section 898 was renumbered section 931f of this title.

2016 —Pub. L. 114–328 renumbered section 905 of this title as this section.

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

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Article 98 Agreements and the International Criminal Court

The Political-Military Bureau at the State Department leads the United States' worldwide campaign to secure bilateral non-surrender ("Article 98") agreements protecting American citizens from the International Criminal Court (ICC) and provides the public with information in order to clarify the United States' position on the ICC.

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Chapter xv — the secretariat.

“ The Secretary-General shall act in that capacity in all meetings of the General Assembly, of the Security Council, of the Economic and Social Council, and of the Trusteeship Council, and shall perform such other functions as are entrusted to him by these organs. The Secretary-General shall make an annual report to the General Assembly on the work of the Organization. ”

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Alvin Moscow, Shipwreck Chronicler and Prolific Collaborator, Dies at 98

After writing a best seller about the sinking of the Andrea Doria, he was a co-author with Richard M. Nixon, Patty Hearst, William S. Paley and others.

A black-and-white photo of Alvin Moscow in a suit jacket and striped tie. He is leaning on a typewriter.

By Richard Sandomir

Alvin Moscow, who wrote a best-selling account of the sinking of the ocean liner Andrea Doria in 1956, then collaborated on the memoirs of several public figures, including Richard M. Nixon soon after he lost the 1960 presidential election to John F. Kennedy, died on Feb. 6 in North Las Vegas, Nev. He was 98.

His death, in a hospital, was confirmed by his daughter Nina Moscow.

Mr. Moscow was a reporter for The Associated Press when he covered the court hearings focused on determining the cause of the violent collision between the Andrea Doria, which was en route from Genoa, Italy, to New York, and the European-bound Stockholm, in dense fog about 45 miles south of Nantucket Island in Massachusetts on the evening of July 25, 1956.

In all, 51 people died . But in a remarkable civil maritime rescue operation, more than 1,600 passengers and crew members survived.

In “Collision Course: The Andrea Doria and the Stockholm” (1959), Mr. Moscow described the moment of impact between the ships:

“With the force of a battering ram of more than one million tons, the Stockholm prow plunged into the speeding Italian ship, crumbling like a thin sheet of tin, until her energy was spent. With the Stockholm pinioned in her, the Andrea Doria, twice her size, pivoted sharply under the impact, dragging the Stockholm along as the giant propellers of the Italian liner churned the black sea violently to white.”

Walter Lord, who had described the sinking of the Titanic in his book “A Night to Remember” (1955) , praised Mr. Moscow’s “magnificent analysis of the accident and sinking” in a review of “Collision Course” in The New York Times.

Mr. Moscow, he noted, wrote that the Andrea Doria was thought to be unsinkable “because it was difficult to imagine more than two of her watertight compartments flooded and she was designed to float if that happened.”

“This,” Mr. Lord added, “is precisely the reason why the Titanic was considered unsinkable.”

Mr. Moscow left The Associated Press after the publication of “Collision Course” and within two years was working with Nixon, the former vice president and presidential candidate, who was running an ultimately unsuccessful campaign for governor of California against Edmund G. Brown , the incumbent, in 1962.

The result was “Six Crises” (1962) , in which Nixon recalled challenges that he had faced during his political career. They included, among other moments, his hot pursuit of accusations of Communism against the diplomat Alger Hiss while in Congress and his impassioned defense, as a senator from California, of his handling of about $18,000 quietly raised by his supporters during his 1952 campaign for the vice presidency on the Republican ticket with Dwight D. Eisenhower. It became known as the “Checkers speech” because at one point Nixon said he would not return a cocker spaniel, named Checkers, that had been given to his two daughters by an admirer from Texas that year.

Nixon did not credit Mr. Moscow as his co-writer (he thanked him in the book for “directing research and organizing material”). But Kenneth McCormick, the book's editor, told The Times in 1979 that Mr. Moscow wrote all but the last chapter, about Nixon’s narrow loss in the 1960 campaign, which Nixon wrote himself because Mr. Moscow was still busy writing earlier sections.

By the time Nixon wrote the final chapter, Mr. McCormick said, he “had assimilated Al’s approach to the figure of Richard Nixon.”

Mr. Moscow was born Alvin Goldstein on Dec. 31, 1925, in Brooklyn. His mother, Sylvia (Pearlman) Goldstein, whose family immigrated from Siberia, opened a beauty salon after her husband, Ruby Goldstein, left the family when Alvin was a year old. About a dozen years later, she married Jacob Moscow, an executive with the Prudential Insurance Company, who adopted Alvin.

Mr. Moscow got an early start on a journalism career, his family said, when he was hired in 1943 as an assistant to the night city editor at The Times. He stayed in the job for a year until he entered the Navy, and he served as a radioman in the South Pacific from 1944 to 1946.

After his discharge, he earned a bachelor’s degree from the University of Missouri in 1948. He was soon hired as a radio news writer by The A.P., and after a year he became a general news reporter.

After “Six Crises,” Mr. Moscow toggled between collaborations and books written under his own name. He wrote “Merchants of Heroin” (1968), about an international narcotics operation; “The Rockefeller Inheritance” (1977), an examination of the wealth bequeathed to the five grandsons of the oil billionaire John D. Rockefeller; and “As It Happened” (1979), which he ghostwrote for William S. Paley , the influential builder of the CBS broadcast empire.

Sally Bedell Smith, who wrote “In All His Glory” (1990), a comprehensive biography of Mr. Paley, said in a phone interview that Mr. Moscow’s book “provided the scaffolding for my book — it had lots of dates and places — but it was very much sanitized.”

“There was a lot in ‘As It Happened,’” she added, “that was only partly as it happened.”

Mr. Moscow also wrote “Every Secret Thing” (1981) with the newspaper heiress Patty Hearst (who wrote it as Patricia Campbell Hearst and is now known as Patricia Hearst Shaw), who was abducted in 1974, when she was 19, from her apartment in Berkeley, Calif., by a small band of terrorists, the Symbionese Liberation Army.

After being confined in a closet, blindfolded and abused, she claimed a new identity as an urban guerrilla named Tania and wielded an assault rifle with other members of the terrorist group during a bank robbery. She was convicted of robbery and sentenced to seven years in prison. She was released after 22 months under an executive clemency order from President Jimmy Carter.

Mr. Moscow’s other books include “Managing” (1984), a collaboration with Harold Geneen , the longtime chief executive of the conglomerate International Telephone and Telegraph, and “Twice in a Lifetime: From Soap to Skyscrapers” (1988), which he wrote with Charles Luckman , the architect who was also the president of Lever Brothers.

In addition to his daughter Nina, Mr. Moscow is survived by another daughter, Joanna Moscow; a son, Andrew; and one grandson. His wife, Deirdre (Meadow) Moscow, whom he married in 1954, died last year.

“Collision Course,” which spent 15 weeks on The Times’s general best-seller list, remained Mr. Moscow’s best-known book. In it, he memorably wrote about the Andrea Doria’s sinking:

“The Andrea Doria plunged beneath the waves on her right side, bow first. Her stern rose higher in the air and then was gone, sending a small fountain spray of sea water up toward the sky. The Andrea Doria disappeared from sight at 10:09 on the morning of July 26, 1956, two miles southeast of where she and the Stockholm had collided exactly 11 hours earlier.”

An earlier version of this obituary mistakenly included one name on a list of Mr. Moscow’s survivors. His wife, Deirdre (Meadow) Moscow, died last year.

How we handle corrections

Richard Sandomir is an obituaries writer. He previously wrote about sports media and sports business. He is also the author of several books, including “The Pride of the Yankees: Lou Gehrig, Gary Cooper and the Making of a Classic.” More about Richard Sandomir

With a Yurchenko full vault, Bella Misiura delivers a 9.8 as Masconomet soars to North gymnastics title

Masconomet’s Bella Misiura earned a meet-high 9.8 on the vault Saturday, securing her team's North sectional title.

NORTHBOROUGH — Vasko Vetzev didn’t necessarily want Bella Misiura, Masconomet’s star gymnast to do her Yurchenko full vault at the MIAA North gymnastics sectional Saturday afternoon.

“My coach wanted me to do a Yurchenko layout,” said Misiura. “But I have been doing a Yurchenko full in club all season. I told him I was doing it.”

She did the difficult vault in the final rotation, even though her Masconomet team had the lead. It scored a 9.8, the highest score of the day, and solidified the Chieftains’ North win over Central Catholic, 149.925-147.200, at Algonquin Regional.

The defending state champion, Masconomet had the highest scores on three of the four apparatus: vault, uneven bars and balance beam. Only Central Catholic bested the Chieftains on floor exercise. Misiura finished second in the all-around, and teammate Fallon Eberhardt finished fourth.

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Central Catholic, the defending North champion capable of scoring in the 150s, played a long game, playing it safe with a few of its top gymnasts to be in top form for next week’s state final.

Kaylee Wescott (38.725) won the all-around to lead Danvers/Lynnfield to third place (149.925.) Despite coming in as the seventh seed, Wilmington/Bedford (139.775) moved up to fourth, clinching the last spot at states, thanks to Alissa Ganley’s 36.8 all-around finish.

Mansfield entered the final rotation of Saturday’s South sectional in fifth place, one spot out of earning a spot to next week’s state championships. All the pressure was on the Hornets’ final vaulter, junior Andrew Znoj.

“I didn’t feel a ton of pressure,” said Znoj, who won the vault title Monday’s state individual meet. “I’ve done that vault hundreds of times.”

With the entire meet watching — including gymnasts for the later North sectional crowded in the doorways — Znoj hit his Yurchenko layout vault, earning a 9.7 and helping lift Mansfield to the South sectional title with an overall score of 142.550, .125 over Medway/Holliston/Millis/Milford at Algonquin Regional High School.

The extremely close meet saw several changes in the leaderboard throughout the morning. As a team, Mansfield placed in the top four in every event, but its fourth places on balance beam and floor exercise had the Hornets in fifth before a vault rotation that ended the best of the day.

Medway/Holliston/Millis/Milford used a beautiful and consistent balance beam rotation to solidify its second-place finish. With impressive skills, including several routines with difficult acro skills, their 35.875 on the apparatus was tops in the South.

Medfield/Ashland/Dover-Sherborn (141.725) came into the sectional seeded sixth, but leapfrogged two higher-seeded teams to earn third, thanks to a stellar floor exercise rotation with clean routines and great depth.

Brockton/East Bridgewater led the meet after three rotations, especially after a standout floor exercise lineup that led the meet with a team score of 36.825. However, despite the meet’s second-best uneven bars rotation in the last rotation of the meet, they dropped to fourth but still earned the last spot to states.

Kat Cornetta can be reached at [email protected] .

Article 98 Agreements and Sanctions on U.S. Foreign Aid to Latin America

March 30, 2006 – March 22, 2007 RL33337

During 2006, the Administration and Congress began to reassess some aspects of U.S. policy towards the International Criminal Court (ICC) because of unintended negative effects of that policy on relations with some ICC member countries, especially in Latin America. In Congress, support for aid restrictions on foreign aid to ICC member countries that have not agreed to exempt U.S. citizens from the court’s jurisdiction has diminished. This policy shift has occurred largely because of increasing concerns about the negative effects that ICC-related sanctions have had on U.S. relations with Latin America, particularly in the area of security cooperation.

In July 2002, the Rome Statute that created the 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. Since 2002, 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 in Congress for legislation aimed at protecting U.S. soldiers and civilian officials from the jurisdiction of the ICC. 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. Nethercutt aid restrictions continued in the FY2007 Continuing Appropriations Resolution (P.L. 109-289, as amended) and are likely to be included in the FY2008 Foreign Operations Appropriation bill.

The FY2007 Defense Authorization Act (H.R. 5122/P.L. 109-364), which President Bush signed into law on October 17, 2006, modifies ASPA to end the ban on International Military Education and Training (IMET) assistance to affected countries. Restrictions on Foreign Military Financing (FMF) remain in place. On November 28, 2006, pursuant to section 574 of P.L. 109-102, President Bush waived Nethercutt restrictions on FY2006 Economic Support Funds (ESF) to 14 countries, including Bolivia, Costa Rica, Ecuador, Mexico, Paraguay, and Peru.

While some Members of Congress advocate ending all ICC-related sanctions, others believe that some aid restrictions should remain in place in order to encourage other countries to sign Article 98 agreements. The issue of whether to continue these aid restrictions is likely to be considered during the 110th Congress. This report may be updated.

Topic areas

National Defense

Appropriations

Foreign Affairs

Introduction

The international criminal court (icc), u.s. policy on icc immunity, bilateral immunity ("article 98") agreements, article 98 agreements with latin america, legislation, the american servicemembers' protection act (aspa), the nethercutt amendment, fy2007 defense authorization act modifies aspa, other relevant legislative proposals, article 98 and u.s. aid to latin america, military assistance, economic assistance, shifting policy debate over latin america.

Table 1. Status of ICC and Article 98 Agreements in Latin America and the Caribbean as of March 2007

During 2006, the Administration and Congress began to reassess some aspects of U.S. policy towards the International Criminal Court (ICC) because of unintended negative effects of that policy on relations with some ICC member countries, especially in Latin America. In Congress, support for aid restrictions on foreign aid to ICC member countries that have not agreed to exempt U.S. citizens from the court's jurisdiction has diminished. This policy shift has occurred largely because of increasing concerns about the negative effects that ICC-related sanctions have had on U.S. relations with Latin America, particularly in the area of security cooperation.

In July 2002, the Rome Statute that created the 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. Since 2002, 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 in Congress for legislation aimed at protecting U.S. soldiers and civilian officials from the jurisdiction of the ICC. 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. Nethercutt aid restrictions continued in the FY2007 Continuing Appropriations Resolution ( P.L. 109-289 , as amended) and are likely to be included in the FY2008 Foreign Operations Appropriation bill.

The FY2007 Defense Authorization Act ( H.R. 5122 / P.L. 109-364 ), which President Bush signed into law on October 17, 2006, modifies ASPA to end the ban on International Military Education and Training (IMET) assistance to affected countries. Restrictions on Foreign Military Financing (FMF) remain in place. On November 28, 2006, pursuant to section 574 of P.L. 109-102 , President Bush waived Nethercutt restrictions on FY2006 Economic Support Funds (ESF) to 14 countries, including Bolivia, Costa Rica, Ecuador, Mexico, Paraguay, and Peru.

While some Members of Congress advocate ending all ICC-related sanctions, others believe that some aid restrictions should remain in place in order to encourage other countries to sign Article 98 agreements. The issue of whether to continue these aid restrictions is likely to be considered during the 110 th Congress. This report may be updated.

In the past year, policy consequences of U.S. aid restrictions on International Criminal Court (ICC) member countries that have not signed agreements exempting U.S. citizens from ICC prosecution have prompted policy-makers to alter the policy somewhat. Latin America has been at the forefront of that reassessment.

In particular, some negative consequences for U.S. relations with Latin America have occurred as a result of ICC-related sanctions. Restrictions on military training aid have resulted in a dramatic decline in the number of Latin American military personnel receiving training in the United States. Similarly, restrictions on economic aid have hindered the ability of U.S. democracy and rule of law programs to work with governments in the region, especially in the Andean countries.

Although most Members of Congress still support efforts to shield U.S. citizens serving abroad from ICC prosecution, many are beginning to oppose the use of sanctions to attempt to persuade countries to sign bilateral immunity (so-called "Article 98" agreements). Some Members of Congress advocate ending all ICC-related aid restrictions, while others believe that at least some restrictions should remain in place in order to encourage other countries to sign Article 98 agreements. The issue of whether to continue these aid restrictions is likely to be considered by the 110 th Congress.

This paper discusses the evolving policy debate in the U.S. government concerning the use of ICC-related foreign aid restrictions. It focuses on the case of Latin America and the Caribbean, a region in which twelve countries (including Brazil, Bolivia, Ecuador and Mexico) have faced aid cutbacks for failing to sign an Article 98 agreement.

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 1, 2007, 104 countries have ratified the Rome Statute and are currently members of the ICC. 2 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. 3

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. Since its creation, the ICC has received three referrals by state parties, and the U.N. Security Council also referred the situation of allegations of atrocities being committed in Darfur, Sudan to the prosecutor. 4 The prosecutor has opened investigations into the cases involving the Democratic Republic of the Congo, the Republic of Uganda, and Darfur, Sudan. In October 2005, the ICC issued its first arrest warrants to five individuals implicated in connection to the situation in Northern Uganda.

Some analysts have recently asserted that the Bush Administration has begun to soften its once vocal opposition to the International Criminal Court (ICC). They argue that strong opposition to the ICC within the Administration has been gradually dissipating, particularly since the U.S. government allowed the U.N. Security Council to refer the Darfur, Sudan situation to the ICC in March 2005. 5 According to State Department spokesman Sean McCormack, "We [the U.S. government] fully support bringing to justice those responsible for crimes and atrocities that have occurred in Darfur. We are at a point in the process where we could call upon the Sudanese government to cooperate fully with the ICC." 6 Other analysts remain skeptical about whether a fundamental shift in U.S. policy towards the ICC is occurring and believe that, regardless of the court's merits, the U.S. government is going to continue to do all that it can in order to protect its military and civilians serving abroad from ICC prosecution.

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.

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 100 th 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. 8

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 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 additional countries in Latin America and the Caribbean are known to have signed Article 98 agreements. Some countries have vocally opposed U.S. efforts to persuade them to sign Article 98 agreements. In June 2005, then-president of Ecuador, Alfredo Palacios, said that Washington "is free" to defend its policies with respect to the ICC, "but not at the expense of Ecuador's sovereignty and legal standing." 9 Other politicians in the region have accused the United States of "blackmailing Latin American governments into signing an agreement they oppose in principle." 10 The Article 98 campaign has been particularly unpopular in South America, a region in which a majority of the citizens support accountability for past human rights abuses, international law, and the ICC.

In October 2005, Mexico became the 100 th country to ratify the Rome Statute, despite the prospect of losing military and economic assistance from the United States. 11 At that time, a Mexican government spokesman said that Mexico "will be irrefutable in supporting the protocols of the international court, whatever the cost." 12 Chile is considering ratifying the Rome Statute and is also unlikely to conclude an Article 98 agreement.

a. Indicates accession to the ICC for those countries that were not original signatories of the Rome Statute.

There has been strong bipartisan support in Congress for legislation aimed at protecting U.S. soldiers and civilian officials from the jurisdiction of the ICC. Until recently, there had also been strong support for 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 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. 13 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 to 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 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 109 th Congress as part of the FY2006 Foreign Operations Appropriations Act ( H.R. 3057 / P.L. 109-102 ). Unlike the FY2005 appropriation, however, the FY2006 act 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 aid restrictions continued in the FY2007 Continuing Appropriations Resolution ( P.L. 109-289 , as amended) and are likely to be included in the FY2008 Foreign Operations Appropriation bill.

On September 30, 2006, the Senate unanimously consented to a conference report on the FY2007 Defense Authorization, H.R. 5122 / S. 2766 , which was passed by the House on September 29. The conference agreement, following the Senate version of the bill, modifies ASPA to end the ban on International Military Education and Training (IMET) assistance to countries that are members of the ICC and that do not have Article 98 agreements in place. The President signed the bill into law, P.L. 109-364 , on October 17. Restrictions on Foreign Military Financing (FMF) remain in place under ASPA.

During the 109 th Congress, another bill was introduced, H.R. 5995 (Engel), that would have ended all restrictions on U.S. aid to countries that are members of the ICC and that do not have Article 98 agreements in place. If it had passed, the bill would have required the repeal of both ASPA and the Nethercutt Amendment.

The ASPA and the Nethercutt Amendment have had an impact on U.S. foreign assistance to Latin America and the Caribbean.

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 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. 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.

Some analysts also assert that FMF cutbacks, totaling some $4.4 million in FY2005 and $3 million in FY2006, have made some military modernization projects difficult for the affected countries to continue. Others have responded that the effects of IMET and FMF funding restrictions have not been that significant when one considers that they have been divided among several countries and have only been in effect for a few years.

Through the security-related ESF program, the United States provides economic aid to countries of strategic interest to U.S. foreign policy. Funding decisions on the ESF program 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 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.

In the last year, policy consequences of the ASPA-mandated aid restrictions have prompted debates within the Administration and in Congress. In particular, consequences of aid cutbacks for U.S. security cooperation in Latin America have begun to be examined and have led to some policy shifts. This shift became evident in Administration policy, congressional hearings, and in new legislation.

At the beginning of 2006, the Bush Administration appeared to be divided over whether to continue linking U.S. assistance to Article 98 agreements. Secretary of State Condoleezza Rice 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. 14 In addition, the Defense Department's Quadrennial Defense Review called for a possible de-linking of military training programs from ASPA. Although the Defense Department, and particularly the U.S. Southern Command, opposed ASPA sanctions on military aid, the Bureau of Political-Military Affairs of the State Department reportedly strongly supported keeping the sanctions in place. 15

On June 22, 2006, Adolfo Franco, Assistant Administrator for Latin America and the Caribbean at the U.S. Agency for International Development, suggested that the Bush Administration was considering lifting ICC-related sanctions against Latin American countries. He stated that the Administration had not yet decided whether to lift the sanctions on all countries affected in the region or only for a select few. Some analysts asserted that the Administration might lift the sanctions in order to improve the United States' image in the region. 16

Similar policy debates occurred during congressional hearings held early in 2006 that mentioned the effects of Article 98 sanctions on U.S. relations with Latin America.

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." 17 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. 18 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." 19

The witnesses suggested several ways to mitigate the possible negative consequences of ASPA on Latin America and the Caribbean. Those suggestions 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, then-Commander of the U.S. Southern Command, while testifying before the Senate Armed Services Committee, 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. His concerns about military aid cuts were echoed by Senators John Warner, Carl Levin, Hillary Clinton, and James Inhofe. 20

On June 21, 2006, Representative Dan Burton, former chair of the House International Relations Committee's subcommittee on the Western Hemisphere, publicly asked the Bush Administration to changes its policy regarding ASPA sanctions, citing congressional concerns about China's expanding influence in the region. 21

By the fall of 2006, the Bush Administration was ready to use waivers to waive restrictions on FY2006 IMET and ESF funds. On October 2, 2006, President Bush directed the Secretary of State to waive FY2006 IMET restrictions for 21 countries. Barbados, Bolivia, Brazil, Costa Rica, Ecuador, Mexico, Paraguay, Peru, St. Vincent and the Grenadines, Trinidad and Tobago, and Uruguay were among the countries that received presidential waivers. 22 On November 28, 2006, pursuant to Section 574 of P.L. 109-102 , President Bush also deemed that it was in the U.S. national interest to waive Nethercutt restrictions on FY2006 ESF assistance for Bolivia, Costa Rica, Cyprus, Ecuador, Kenya, Mali, Mexico, Namibia, Niger, Paraguay, Peru, Samoa, South Africa, and Tanzania. 23

As previously mentioned, the 109 th Congress took action to end the ban on IMET restrictions but has left Nethercutt aid restrictions in the Foreign Operations Appropriations bills. On September 30, 2006, the Senate unanimously consented to a conference report on the FY2007 Defense Authorization, H.R. 5122 / S. 2766 , which was passed by the House on September 29. The conference agreement, following the Senate version of the bill, modifies ASPA to end the ban on International Military Education and Training (IMET) assistance to countries that are members of the ICC and that do not have Article 98 agreements in place. The President signed the bill into law, P.L. 109-364 , on October 17. Restrictions on Foreign Military Financing (FMF) remain in place under ASPA.

Although some Members of Congress advocate ending all ICC-related sanctions, others believe that some aid restrictions should remain in place in order to encourage other countries to sign Article 98 agreements. The issue of whether to continue these aid restrictions is likely to be considered during the 110 th Congress.

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London police confirm that body recovered from river was that of chemical attack suspect Abdul Ezedi

FILE - This is an undated handout photo issued by the Metropolitan Police of Abdul Ezedi. London police have confirmed that a body pulled from the River Thames earlier this week is that of Abdul Ezedi, a man wanted over a chemical attack that injured his former partner and her two young daughters. The Metropolitan Police said Friday Feb. 23. 2024, that a post-mortem has confirmed his cause of death as drowning. (Metropolitan Police via AP, File)

FILE - This is an undated handout photo issued by the Metropolitan Police of Abdul Ezedi. London police have confirmed that a body pulled from the River Thames earlier this week is that of Abdul Ezedi, a man wanted over a chemical attack that injured his former partner and her two young daughters. The Metropolitan Police said Friday Feb. 23. 2024, that a post-mortem has confirmed his cause of death as drowning. (Metropolitan Police via AP, File)

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LONDON (AP) — London police confirmed Friday that a body they pulled from the River Thames is that of Abdul Ezedi, a man wanted over a chemical attack that injured his former partner and her two young daughters.

The Metropolitan Police said his body was formally identified on Thursday and that his family has been informed of this development. The force also said that a post-mortem has confirmed his cause of death as drowning.

“As the public would expect, our enquiries continue into this atrocious attack,” said Commander Jon Savell. “The 31-year-old woman is still in hospital and remains in a stable condition and no longer sedated. We have still not been able to speak to her but hope to as soon as she is well enough.”

Police launched a nationwide manhunt for Ezedi after the attack in the Clapham area of south London on Jan. 31 that saw the mother-of-two doused with a corrosive alkali. Some of the chemical injured her 8-year-old daughter, while the 3-year-old had her head slammed into the ground.

Images of Ezedi soon after showed he had significant injuries to the right side of his face, but his whereabouts were unknown. On Feb. 9, the Met said they believed Ezedi had probably “gone into the water” after piecing together closed-circuit television footage of his movements after the attack.

The Met said the crew of a passing boat reported seeing a body in the water near the Tower of London on Monday afternoon and that they believed it was Ezedi.

British media reported that Ezedi is an Afghan refugee who was granted asylum despite being convicted of a sex offense in Britain in 2018. His asylum application was initially rejected, but he later was permitted to remain in the U.K. after claiming that he had converted to Christianity, the Daily Telegraph newspaper reported.

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