Bilateral Immunity Agreements Article 98

In Congress, laws to protect U.S. soldiers and civilians under ICC jurisdiction have been strongly supported by all parties. In 2002, Congress passed the American Servicemembers` Protection Act (ASPA) (P.L. 107-206, Title II), which prohibits military aid to countries that are part of the ICC and 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 economic support to governments of the same countries.

Restrictions on the reduction of commitments were maintained in line with appropriations for the 2007 fiscal year (P.L. 109-289, as amended) and should be included in the 2008 Foreign Operations Bill. Although the United States has stated that it is not pressuring states to sign non-capitulation agreements, some U.S. government officials have stated that a state`s lack of willingness to sign has affected U.S. support for NATO membership and has resulted in a reduction in U.S. military aid. While some officials have argued that the government is required by the American Servicemembers` Protection Act (ASPA) to deprive state parties of military assistance that do not enter into such agreements, State Department Deputy Spokesman Philip T. Reeker acknowledged that the ASPA “does not prevent the United States from providing military assistance to a country if the president finds that such assistance is important to national interests.” Media, foreign officials and non-governmental organizations reported that threats had been made against small countries to stop non-military aid. At the request of the U.S. military, these sanctions were subsequently lifted.

Article 98 of the agreement implies that each state promises that it will not hand over the citizens of the other signatories to the ICC, unless both parties agree in advance to the surrender. Proponents of the policy say these agreements were not negotiated according to the status of routine military agreements (SOFA) to protect U.S. soldiers abroad from prosecution against foreign courts and are consistent with Article 98 of the Rome Statute.

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