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

Article 98 Agreements and Sanctions on
U.S. Foreign Aid to Latin America
Updated March 22, 2007
Clare M. Ribando
Analyst in Latin American Affairs
Foreign Affairs, Defense, and Trade Division

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

Contents
In troduction ......................................................1
Background ......................................................1
The International Criminal Court (ICC)............................1
U.S. Policy on ICC Immunity....................................3
Bilateral Immunity (“Article 98”) Agreements.......................3
Article 98 Agreements with Latin America..........................3
Legislation .......................................................6
The American Servicemembers’ Protection Act (ASPA)...............6
The Nethercutt Amendment......................................6
FY2007 Defense Authorization Act Modifies ASPA ..................7
Other Relevant Legislative Proposals..........................7
Article 98 and U.S. Aid to Latin America ..............................7
Military Assistance............................................7
Economic Assistance...........................................8
Shifting Policy Debate Over Latin America.............................8
List of Tables
Table 1. Status of ICC and Article 98 Agreements in Latin America
and the Caribbean as of March 2007...............................5

Article 98 Agreements and Sanctions on
U.S. Foreign Aid to Latin America
Introduction
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.
Background
The International Criminal Court (ICC)
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.

¹ These include genocide, crimes against humanity, war crimes, and potentially the crime
of aggression.
² See International Criminal Court, Assembly of State Parties. Available at [http://www.icc-
cpi.int/statesparties.html ].
³ See CRS Report RL31495, U.S. Policy Regarding the International Criminal Court, by
Jennifer Elsea.
⁴ See International Criminal Court, Situations and Cases. Available at [http://www.icc-cpi.
int/cases.html ].
⁵ “Washington Softens Stance on ICC,” All Africa, Mar. 7, 2007.
⁶ Sean McCormack, U.S. Department of State, Daily Press Briefing, Feb. 27, 2006.

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 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 which⁸
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 100^th 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.

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.

⁹ “Ecuador Refuses to Sign ICC Immunity Deal for U.S. Citizens,” Agence France-Presse,
June 22, 2005.
¹⁰ “U.S. Could Cut Aid to Latin American Countries Over ICC,” EFE News Service, Nov.

18, 2005.

¹¹ “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, Nov. 19, 2005.
¹² “U.S. Blocks Aid to Mexico,” Associated Press, Mar. 8, 2006.

Table 1. Status of ICC and Article 98 Agreements in
Latin America and the Caribbean as of March 2007
^Co^unt^ry^Ro^m^e^St^a^t^ut^e^{Party to}^ICC^{Article 98}^Agreem^ent^Subj^ect^t^o^U.S.^{Aid Cut o}^f^f?
^Aⁿ^tⁱ^gua^aⁿ^d^B^a^r^b^ud^a^X^X^X^N^o
^A^r^ge^ntⁱⁿ^a^X^X^E^xe^m^p^t
^Ba^h^a^m^a^s^X^N^o
^Barbados^X^X^Yes
^B^e^{lize X}^X^X^N^o
^B^o^liv^ia^X^X^Sigⁿ^e^d^,ⁿ^o^{t r}^a^tif^ied^Yes
^B^r^azil^X^X^Yes
^Ch^ile^No
^Co^lo^m^b^ia^X^X^X^N^o
^Co^sta^Ric^a^X^X^Yes
^Do^mⁱⁿⁱ^ca^X^X^No
^Do^mⁱⁿⁱ^can^R^e^p^u^b^lic^X^X^(a)^X^No
^Ecu^a^dor^X^X^Yes
^El^S^a^l^v^ador^X^N^o
^Gren^ada^X^No
^Gu^atem^ala^S^igⁿ^e^d^,ⁿ^o^{t r}^a^tif^ied^N^o
^Gu^y^aⁿ^a^X^X^X^N^o
^Haiti^X^X^No
^H^o^nd^ur^a^s^X^X^X^N^o
^Ja^m^aⁱ^c^a^X^N^o
^Mexⁱ^co^X^X^Yes
^Nicarag^u^a^X^N^o
^Paⁿ^a^m^a^X^X^X^N^o
^P^a^r^a^gua^y^X^X^Yes
^Pe^r^u^X^X^Yes
^Sain^{t Kitts an}^d^Nevⁱ^s^X^X^X^No
^Sain^{t L}^u^cia^X^No
^Sain^{t Vin}^cen^{t an}^d^th^e^XX^Yes
^Gren^adin^es
^Surⁱ^nam^e^No
^T^rⁱⁿⁱ^d^{ad an}^{d T}^obag^o^X^X^Yes
^U^r^ugua^y^X^X^Yes
^Ven^ezu^ela^X^X^Yes
^a.^In^dⁱ^cat^{es accessi}^oⁿ^t^o^t^h^{e ICC f}^o^{r t}^h^o^s^{e c}^ountrⁱ^e^s^tha^t^w^e^r^e^{not or}^ig^ina^l^sⁱ^gⁿ^a^t^or^ie^s^of^the^R^o^m^e^Sta^t^ute^.

Legislation
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 (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.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
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.

¹³ 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.

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.
FY2007 Defense Authorization Act Modifies ASPA
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.
Other Relevant Legislative Proposals. 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.
Article 98 and U.S. Aid to
Latin America
The ASPA and the Nethercutt Amendment have had an impact on U.S. foreign
assistance to Latin America and the Caribbean.
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 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.
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 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.
Shifting Policy Debate Over Latin America
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

¹⁴ Pablo Bachelet, “U.S. Sanctions Could Be Waived,” The Miami Herald, Mar. 15, 2006.
¹⁵ U.S. Department of Defense, Quadrennial Defense Review, Feb. 6, 2006. Available at
[http://www.forscom.army.mil/reeng/1-PMD/2006QDR.pdf]; Jackson Diehl, “A Losing
Latin Policy: Are We About to Punish Democratic Allies?” Washington Post, Mar. 10,

2006.

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.

¹⁶ “Linking of ICC-related Sanctions Seen as Linked to Opposing Venezuela’s UN Bid,”
Latin American Security and Strategic Review, June 2006.
¹⁷ Statement of the Honorable Norm Coleman, “Consequences for Latin America of the
ASPA,” Subcommittee on Western Hemisphere Affairs of the Senate Foreign Relations
Committee, Mar. 8, 2006.
¹⁸ Hearing testimony of Peter DeShazo, Center for Strategic and International Studies,
Subcommittee on Western Hemisphere Affairs of the Senate Foreign Relations Committee,
Mar. 8, 2006.
¹⁹ Hearing testimony of Adam Isaacson, Center for International Policy, Subcommittee on
Western Hemisphere Affairs of the Senate Foreign Relations Committee, Mar. 8, 2006.

On March 14, 2006, General Bantz Craddock, then-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.
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
regi on.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

²⁰ “Combatant Commander’s Military Strategy and Operational Requirements in Review of
the FY2007 Defense Budget,” Hearing of the Senate Armed Services Committee, Mar. 14,

2006; CQ Transcriptions.

²¹ “Chile-U.S.: Talks Underway to Avoid ICC-Related Sanctions,” Latin News Weekly
Report, July 4, 2006.
²² “President Issues Memorandum For Secretary of State Regarding Waive Prohibition on
U.S. Military Assistance,” Oct. 2, 2006. Available at [http://www.whitehouse.gov/news/
releases/2006/10/20061002-7.html ].
²³ “President Issues Memorandum For Secretary of State Regarding Waive Prohibition on
U.S. Economic Support Funds,” Nov. 28, 2006. Available at [http://www.whitehouse.gov/
news/releases/ 2006/11/20061128-12.html ].

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.