Citizens for Global Solutions

INTERNATIONAL LAW AND JUSTICE | BIAs

BILATERAL IMMUNITY AGREEMENTS
(So-called "Article 98 Agreements")

What is a bilateral immunity agreement (BIA)?
Bilateral immunity agreements (BIAs), otherwise referred to as Article 98 agreements, prohibit states that are party to the International Criminal Court (ICC) from sending any U.S. personnel to the Court. Under BIAs, “U.S. personnel” includes U.S. servicemembers, nationals, or employees of the U.S. government (past and present, including non-national contractors). The term "Article 98 agreement" refers to the provision of the Rome Statute establishing the International Criminal Court that prohibits the Court from prosecuting someone located within an ICC member state if doing so would cause the member state to violate the terms of other bilateral or multilateral treaties to which it may be a party.

Since the summer of 2002, the Bush administration has aggressively sought to conclude bilateral immunity agreements with every country in the world. As of October 2005, Citizens for Global Solutions has been able to verify that the United States has entered into BIAs with 97 countries. However, of the 99 ICC member states, 49 have refused to sign a BIA because they believe that doing so would breach their legal obligations under the Rome Statute. (More on the legal debate.)

What happens if a country refuses to sign a BIA?
By refusing to sign a BIA, many U.S. allies have lost their U.S. military aid and are at risk of losing additional economic support funds. Countries are at risk of losing U.S. aid because of two provisions attached to U.S. appropriations legislation, the American Servicemembers’ Protection Act and the Nethercutt provision.

Under the American Servicemembers' Protection Act (ASPA), which originally passed with the Fiscal Year 2003 appropriations bill, countries that belong to the ICC are no longer eligible for U.S. military assistance unless they are explicitly exempted in the ASPA legislation, the President waives the requirement for national security reasons, or the President waives the requirement because the countries have concluded a BIA with the U.S. The countries exempted under ASPA include all NATO countries in addition to Argentina, Australia, Bahrain, Egypt, Israel, Japan, Jordan, Kuwait, Morocco, New Zealand, Pakistan, Philippines, the Republic of Korea, Taiwan, and Thailand.

Under the Nethercutt Amendment, originally passed as part of the Fiscal Year 2005 appropriations bill, countries that belong to the ICC are not eligible for U.S. economic support funds unless they are statutorily exempted, the President waives the requirement for national security reasons, or the President waives the requirement because the countries have concluded a BIA with the U.S. The countries exempted under Nethercutt include all NATO countries, Argentina, Australia, Egypt, Israel, Japan, Jordan, New Zealand, and the Republic of Korea.

Have any countries received presidential waivers under ASPA or Nethercutt?
Citizens for Global Solutions has not been able to verify the use of presidential waivers under the Nethercutt provision. However, President Bush has granted waivers to at least 32 ICC member states that receive U.S. military assistance and have signed BIAs. In late November 2003, President Bush partially waived the sanctions for Bulgaria, Estonia, Latvia, Lithuania, Slovenia and Slovakia, even though all six have refused to sign BIAs. (All six have since become full members of NATO and are fully exempt from the sanctions.) This still leaves more than 20 U.S. allies without military assistance.

Which key U.S. allies are at risk of losing military or economic support aid?
Among the countries whose assistance is being withheld are the following:

Latin American allies in the war on drugs, including Peru, Ecuador, Paraguay, Brazil, Venezuela, Costa Rica, and Uruguay.
The Balkan countries of Croatia and Serbia and Montenegro, which rely on U.S. military assistance to maintain stability and reform their armies.
Caribbean countries, whose hurricane disaster assistance is tied to the affected programs: Trinidad and Tobago, Barbados, and St. Vincent and the Grenadines.
African allies with which the U.S. partners to help maintain regional security, including South Africa, Kenya, Mali and Tanzania.

Updated October 18, 2005

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