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33–683 PDF 2007

S. HRG. 109–812

THE IMPACT ON LATIN AMERICA OF THE

AMERICAN SERVICEMEMBERS’ PROTECTION ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON WESTERN HEMISPHERE,

PEACE CORPS AND NARCOTICS AFFAIRS

OF THE

COMMITTEE ON FOREIGN RELATIONS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MARCH 8, 2006

Printed for the use of the Committee on Foreign Relations

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

COMMITTEE ON FOREIGN RELATIONS

RICHARD G. LUGAR, Indiana, Chairman

CHUCK HAGEL, Nebraska

LINCOLN CHAFEE, Rhode Island

GEORGE ALLEN, Virginia

NORM COLEMAN, Minnesota

GEORGE V. VOINOVICH, Ohio

LAMAR ALEXANDER, Tennessee

JOHN E. SUNUNU, New Hampshire

LISA MURKOWSKI, Alaska

MEL MARTINEZ, Florida

JOSEPH R. BIDEN, JR., Delaware

PAUL S. SARBANES, Maryland

CHRISTOPHER J. DODD, Connecticut

JOHN F. KERRY, Massachusetts

RUSSELL D. FEINGOLD, Wisconsin

BARBARA BOXER, California

BILL NELSON, Florida

BARACK OBAMA, Illinois

KENNETH A. MYERS, Jr., Staff Director

ANTONY J. BLINKEN, Democratic Staff Director

SUBCOMMITTEE ON WESTERN HEMISPHERE, PEACE

CORPS AND NARCOTICS AFFAIRS

NORM COLEMAN, Minnesota, Chairman

LINCOLN CHAFEE, Rhode Island

GEORGE ALLEN, Virginia

MEL MARTINEZ, Florida

JOHN E. SUNUNU, New Hampshire

CHRISTOPHER J. DODD, Connecticut

JOHN F. KERRY, Massachusetts

BARBARA BOXER, California

BILL NELSON, Florida

(II)

CONTENTS

Page

Coleman, Hon. Norm, U.S. Senator from Minnesota, opening statement .......... 1

DeShazo, Dr. Peter, director, Americas Program, Center for Strategic and

International Studies, Washington, DC ............................................................. 5

Prepared statement .......................................................................................... 7

Responses to questions submitted by Senator Martinez ............................... 34

Isacson, Adam, program director, Center for International Policy, Washington, DC ............................................................................................................. 9

Prepared statement .......................................................................................... 11

Responses to questions submitted by Senator Martinez ............................... 33

Wedgwood, Dr. Ruth, director of the International Law and Organizational

Program, the Paul H. Nitze School of Advanced International Studies

(SAIS), the Johns Hopkins University, Washington, DC ................................. 18

Prepared statement .......................................................................................... 21

ADDITIONAL PREPARED STATEMENT SUBMITTED FOR THE RECORD

Martinez, Hon. Mel, U.S. Senator from Florida .................................................... 32

(III)

(1)

THE IMPACT ON LATIN AMERICA OF THE

AMERICAN SERVICEMEMBERS’ PROTECTION

ACT

WEDNESDAY, MARCH 8, 2006

U.S. SENATE,

SUBCOMMITTEE ON WESTERN HEMISPHERE,

PEACE CORPS AND NARCOTICS AFFAIRS,

COMMITTEE ON FOREIGN RELATIONS,

Washington DC.

The committee met, pursuant to notice, at 2:30 p.m., in room

SD–419, Dirksen Senate Office Building, Hon. Norm Coleman

(chairman of the subcommittee) presiding.

Present: Senator Coleman.

OPENING STATEMENT OF HON. NORM COLEMAN, U.S.

SENATOR FROM MINNESOTA

Senator COLEMAN. This hearing of the Senate Foreign Relations

Subcommittee on Western Hemisphere, Peace Corps and Narcotics

Affairs will come to order. The International Criminal Court is the

first permanent criminal court established to judge such crimes as

genocide, crimes against humanity and war crimes. While still a

new entity, the ICC issued its first arrest warrants against five

leaders of armed groups in Uganda in October. The United States,

due to legitimate concerns, has not ratified the Rome Statute, and

therefore, is neither a member of the International Criminal Court

nor under its jurisdiction. However, over 100 countries have ratified and are members of the court. This situation could leave U.S.

soldiers vulnerable to being unjustly charged with war crimes regardless of the fact that the United States is not party to the ICC.

The United States Congress and the President have agreed that

this potential exposure for American troops is undesirable and

have sought legal mechanisms to protect American citizens from

ill-founded or politically-motivated charges. Legislatively, these

mechanisms include the American Servicemembers’ Protection Act

of 2003, ASPA, and the Nethercutt amendment. In general terms,

ASPA prohibits U.S. Government cooperation with the ICC, restricts the participation of U.S. troops in U.N. peacekeeping operations unless the President certifies they will not risk prosecution

at the ICC. And the focus for today’s hearing prohibits U.S. military assistance for any country that is a member of the ICC and

does not conclude an Article 98 agreement with the United States

guaranteeing that it will not surrender citizens of the other country

to the ICC unless both parties agree in advance.

2

In the same way, the Nethercutt amendment cuts Economic Support Funds, ESF, for countries that back the court. I fully support

the intent of these laws. I also applaud the work of the State Department in securing over 100 Article 98 agreements to date. These

agreements have been somewhat controversial. While the State Department insists that they simply reinforce the ICC’s own concept

of complementarity, others believe they undermine the court itself.

This concern, coupled with global anti-American sentiments, has

led to some reluctance to sign them. The European Union, for instance, is opposed to Article 98 agreements. It expressly cautions

prospective European Union members against signing them. In

other cases, governments that have signed Article 98 agreements

have been unable to achieve ratification by their legislatures.

This is a global issue, and I would note that Senator Voinovich

has raised many concerns relative to eastern Europe. However, today’s hearing will focus exclusively on the consequences of ASPA

in Latin America. In this region, 13 countries have signed and ratified Article 98 agreements with the United States and continue to

receive military and economic assistance from the United States.

Similarly, nine countries in this hemisphere are not members of

the ICC and face no restrictions. Argentina is a major non-NATO

ally and is not subject to any restrictions. However, in this region,

12 countries which are parties to the ICC have not signed Article

98 agreements, and most have shown little inclination to do so in

the future. Among these are such key partners as Mexico, Brazil,

Ecuador, Bolivia, Peru, Uruguay, and Paraguay. The direct consequence has been a reduction in U.S. assistance to and cooperation with the region. Cuts have affected foreign military financing,

International Military Education and Training, IMET, excess defense articles and economic support funds. Counter narcotics and

humanitarian aid are exempted. Of course, the consequences of this

policy extend beyond foreign aid numbers. Militarily, there can be

little doubt that the United States is missing key opportunities to

engage officers, noncommissioned officers, and high-ranking civilians from the sanction countries. Moreover, we know that militaryto-military engagement can help to underscore the importance of

democracy, stability and professionalism. This is especially significant in a region where not so long ago, the military establishment

was complicit in decades of undemocratic rule. General Bantz

Craddock, Commander of the United States Southern Command,

has been forthright with his concerns about the effects of ASPA in

the region—particularly, its impact on IMET. In his 2005 Posture

Statement, he said, and I quote, ‘‘While the American Service

Members’ Protection Act, ASPA, provides welcome support in our

efforts to seek safeguards for our servicemembers from prosecution

under the International Criminal Court, in my judgment, it has the

unintended consequence of restricting our access to and interaction

with many important partner nations. Of the 22 nations worldwide

affected by these sanctions, 11 of them are in Latin America, hampering the engagement and professional contact that is an essential

element of our regional security cooperation strategy.’’ I would inject that since the statement was made, Mexico became part of the

ICC, increasing the number of affected countries to 12. General

Craddock also stated the IMET program provides partner-nation

3

students with the opportunity to attend U.S. military training, get

a first-hand view of life in the United States and develop long-lasting friendships with U.S. military and other partner-nation’s classmates. Finally, General Craddock warned extra-hemispheric actors

are filling the void left by restricted U.S. military engagement with

partner nations. We now risk losing contact and interoperability

with a generation of military classmates and many nations of the

region, including several leading countries. In a broader sense, restrictions in military aid could also result in the loss of U.S. diplomatic influence in the region. This occurs at a time when populism

and anti-Americanism are rampant. Charges of U.S. ‘‘neglect’’ are

commonplace, and humanitarian aid for the region is seeing reductions. And any real or perceived vacuum created by the United

States could be filled by worrisome actors in the region or even elements outside the region such as China, which is already scaling

up its military and diplomatic engagement in Latin America. A

couple of case studies further illustrate the consequences of ASPA.

In 2002, Bolivia ratified the Rome Statute and then signed an Article 98 agreement, but the Bolivian Congress has not ratified the

agreement. And given the current political dynamics in Bolivia, it

seems highly unlikely to do so. As a consequence, our 2007 budget

will cut military aid to Bolivia by 96 percent. I worry that this

drastic cut could be counterproductive to our goal of a Bolivia that

is a democratic partner in the region and could erode U.S. efforts

to engage early with the Morales government. Ecuador ratified the

Rome Statute in 2002 and has not signed an Article 98 agreement.

As a consequence, aid for Ecuador has fallen by some $1.2 million

dollars in Economic Support Funds and $1.3 million in military

aid. This sends a difficult message as we seek to extend the agreement which allows the United States the use of the Manta Base

for counter-narcotics operations. Mexico just became a member of

the International Criminal Court in October 2005. Cutting off military training with our NAFTA-partner neighbor will be particularly

damaging to our national security interest, particularly as Mexico

enters an election cycle and we seek cooperation to address challenges along our shared border. Brazil ratified the ICC in 2002.

During my trip to Brazil with Senator Martinez and Congressman

Jeff Miller in August, reductions in military exchanges were among

the top concerns I heard. Brazil is the largest country in Latin

America, and these reductions are having a real impact. It is the

opinion of this Senate that it is up to Congress to find ways to mitigate the negative consequences of ASPA without undermining the

law or the protection it offers for our troops. We need to continue

pressing for Article 98 agreements in ways that do not undermine

our own policy goals, particularly as they relate to IMET. Several

possible solutions exist. First, ASPA already includes a waiver authority, and some have suggested that the administration start

using it more liberally. The downside of this approach is that it

could undermine continuing efforts to reach Article 98 agreements.

I would also add my strong view that the negative consequences of

ASPA are a result of the law itself, not the administration’s reluctance to waive it. A second possible solution would be to delink all

or part of IMET from the law while retaining restrictions related

to FMS and ESF. This approach has a certain appeal, but it might

4

result in a decrease in the pressure on the countries to conclude

Article 98 agreements. A third approach would be to replace all or

part of the IMET provisions with another form of leverage that

would offer some positive incentive to countries that do sign and

ratify Article 98 agreements. I hope our witnesses can offer some

suggestions in this vein. Alternatively, Congress could add specific

flexibility to the waiver authority to take into account other positive measures such as status of forces agreements or other indicators of cooperation.

In conclusion, I support the American Servicemembers’ Protection Act, but I believe it carries some unintended consequences that

are felt acutely in the region. I look forward to hearing the views

of the witnesses about how we can fix it, how we can improve it

and to work with my colleagues and the Congress to achieve this

goal. I would also note my extreme disappointment that neither the

State Department or the Defense Department have cooperated with

my request to send witnesses to testify today. It has been my clear

intention to work with the administration to find mutually acceptable solutions to this problem, and the failure to testify this subcommittee is truly regrettable. And I’m not sure if this is a product

of divisions within the administration, which I’ve heard some conflicting views, and they haven’t settled on consensus policy. I hope

it’s not a head-in-the-sand approach to a status quo, which really

is not acceptable. We need to figure out a way to improve the environment in Latin America. And today, clearly, there are issues, and

they have to be addressed in this hearing. Hopefully, we’ll shed

some light. But again, my extreme disappointment with both State

and Defense. They need to step up to the table on this issue. With

that, I will yield. I was going to yield to my distinguished ranking

member who is not here. If he comes, we’ll give him that opportunity, but why don’t I just move forward with introducing the witnesses. I should note that a number of my colleagues, Senator Martinez, Senator Nelson, have raised this, and there are a number of

things going on right now, but this issue clearly has the interest

of many of us who are concerned about the United States and

Latin America. The committee is pleased to have three witnesses

speak about the consequences of the American Servicemembers’

Protection Act. Dr. Peter DeShazo is the director of the Americas

Program at the Center for Strategic and International Studies

since September 2004. Prior to this position, he was deputy assistant secretary of state for Western Hemisphere affairs. During his

career in the U.S. foreign service, Dr. DeShazo also served as deputy U.S. representative to the OAS, director of the Office of Public

Diplomacy and Public Affairs at the Bureau of Western Hemisphere Affairs and served at U.S. embassies and consulates in Bolivia, Columbia, Chile, Panama, Venezuela, and Israel. Dr.

DeShazo received his B.A. from Dartmouth College and Ph.D. in

Latin American history from the University of Wisconsin at Madison and did his postgraduate work at the Universidad Catolica in

Chile. Mr. Adam Isacson is the director of demilitarization of Latin

American Program Center for International Policy. Mr. Isacson has

worked on Latin American security issues at the Center for International Policy since 1995. He is the primary author of a 1997 CIP

areas foundation book on security and militarism in Central AmerVerDate 11-MAY-2000 13:03 Mar 15, 2007 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 H:\DOCS\80081.SEN mich PsN: mich
5

ica and coauthor of ‘‘Just The Facts,’’ a study of U.S. military assistance to the Western Hemisphere. Mr. Isacson holds an M.A. in

international relations from Yale University. To offer insight about

the ICC and International Law, the committee is pleased to welcome Dr. Ruth Wedgwood. Dr. Wedgwood is the Edward B. Burling

Professor of International Law and Diplomacy and the director of

International Law and Organization Program at the Paul H. Nitze

School of Advanced International Studies at Johns Hopkins University. She’s been a United States member of the United Nations

Human Rights Committee, a member of the United States Secretary of State’s Advisory Committee for International Law, an

independent expert for the International Criminal Tribunal for the

former Yugoslavia. She was formerly professor at Yale University—

a lot of Yale ties today, and director of the studies of the Hague

Academy for International Law. Dr. Wedgwood is a graduate of

Harvard University and Yale Law School.

And with that, I think we will start with Ambassador DeShazo.

I will go to Mr. Isacson and then conclude with Dr. Wedgwood. So

Ambassador, please begin.

STATEMENT OF DR. PETER DESHAZO, DIRECTOR, AMERICAS

PROGRAM, CENTER FOR STRATEGIC AND INTERNATIONAL

STUDIES, WASHINGTON, DC

Ambassador DESHAZO. Thank you very much, Mr. Chairman.

Thank you very much for your invitation. It’s a pleasure to speak

on this important topic. Although the goal of the American

Servicemembers’ Protection Act and the subsequent Nethercutt

amendment to the 2005 Foreign Operations Appropriations Act has

been to encourage countries to sign bilateral immunity agreements,

Article 98 agreements, with the United States, unintended consequences arising from the cutoff of military and economic assistance to now 12 countries in the Americas as a result of ASPA and

Nethercutt are affecting U.S. national interest in the region.

On the military side, the loss of IMET has been especially significant. IMET is a key, cost-effective vehicle for military-to-military

engagement with future leaders of security institutions in the

hemisphere. Although the rescissions in dollar terms are not dramatic, hundreds of Latin American military officers from the countries not ratifying Article 98 agreements will not receive U.S. training in 2006 as a result of the IMET suspension. This suspension

affects U.S. security by weakening current and potential cooperation with key militaries such as the army and navy of Mexico,

which have a direct effect on our border security. It affects efforts

to combat regional threats such as trafficking in persons and arms

trafficking where military-to-military cooperation with the United

States is an important component. It also affects the promotion of

international security and peacekeeping efforts. IMET provides foreign military leaders with access to U.S. doctrine and tactics that

are important in peacekeeping and coalition building. Countries in

the region such as Brazil and Chile are increasingly involved in

such international efforts. It affects the image of the United States.

Abrogation of IMET and other forms of U.S. military assistance

plays into the hands of anti-United States ultranationalists on the

left and right. It affects long-term training relationships. Nations

6

whose training with the United States is cut off will look elsewhere—Europe perhaps—but China, Russia, Cuba, and Venezuela

are other possibilities. It affects linkage to the U.S. model of civilian control of the military in a democratic environment. IMET also

includes an important human rights component in all training,

which is lost to those who don’t participate. Chile may well become

a showcase of the unintended but negative aspects of ASPA. Although it is Latin America’s greatest success story in terms of its

high-quality democratic governance, respect for human rights, prosperous economy based on free market policies and a free trade

agreement with the United States and its success in reducing poverty, Chile will fall under ASPA and Nethercutt sanctions when, as

it is almost certain to do, its Congress ratifies the Rome Statute

of the ICC within a few months. The imposition of sanctions would

set back what has become an excellent military-to-military relationship with the United States and would cause public opinion in

Chile to question why the United States would sanction a friendly

country. The loss of Economic Support Funds, ESF, under the

terms of Nethercutt also has an unintended but negative impact on

U.S. interests in the region. ESF is the lifeblood of U.S. funding for

structural reform in Latin America, for encouraging improved governance, strengthening the rule of law, fighting corruption and promoting sound economic policies. It is a precious resource in short

supply. While Nethercutt does not eliminate ESF spending in countries not ratifying Article 98 agreements, it does deny ESF funds

for the benefit of governments, a broadly-applied definition.

In Andean countries like Bolivia, Peru, and Ecuador that cry out

for reforms in governance, ESF cannot be used to fight corruption,

strengthen justice systems, or improve governance if the state is

the beneficiary of such funds, which is the purpose of such reforms.

ESF may go to NGOs and others who will make good use of it, but

not necessarily to the best advantage of the United States. Regional efforts may also be affected, such as the United States’ interest in promoting trade capacity building in Central America in the

wake of the CAFTA/DR approval. ESF expenditures for regional

projects cannot be made if Costa Rica, which has not signed an Article 98 agreement, is a beneficiary. As in the case of IMET, the

amounts of ESF involved are not large, but are significant in terms

of their impact. Over time, ESF now being reprogrammed within

countries to comply with Nethercutt regulations will be redistributed to other countries in other regions. Nethercutt sanctions limit

the flexibility of U.S. policymakers and strengthen the hand of

those in the region who oppose reform. The well-intentioned, but

nonetheless, negative results arising from ASPA and the

Nethercutt sanctions set back United States policy objectives in

Latin America. The challenge is to find means to protect American

servicemembers and citizens without recurring to this sanction’s regime, and several potential solutions may be possible: Status of

forces agreements and exchanges of diplomatic notes, waivers, or

other measures. Whatever steps taken, however, should be consistent with our overall interests in the region. Thank you, Mr.

Chairman.

[The prepared statement of Dr. DeShazo follows:]

7

PREPARED STATEMENT OF PETER DESHAZO, DIRECTOR, AMERICAS PROGRAM CENTER

FOR STRATEGIC AND INTERNATIONAL STUDIES

The American Servicemembers’ Protection Act (ASPA) that came into effect on

July 1, 2003 and the subsequent ‘‘Nethercutt amendment’’ to the 2005 Foreign Operations Appropriations Act, respectively, call for the suspension of military and economic aid to countries that are parties to the Rome Statute establishing an International Criminal Court (ICC) but that have not signed a bilateral immunity agreement (Article 98 agreement) pledging not to seek the prosecution of U.S. citizens

in the ICC. Currently, 12 countries in the western hemisphere (Barbados, Bolivia,

Brazil, Costa Rica, Ecuador, Mexico, Paraguay, Peru, St. Vincent and the Grenadines, Trinidad and Tobago, Uruguay, Venezuela) are subject to the sanctions established by ASPA and the Nethercutt amendment, with Chile on the verge of ratifying

the Rome Statute, which would make that country also subject to sanctions. The assistance suspended by ASPA includes International Military Education and Training (IMET), Foreign Military Financing (FMF), and Excess Defense Articles (EDA).

The Nethercutt amendment prohibits making available Economic Support Funds

(ESF) to provide assistance to states party to the ICC and that have not signed an

Article 98 agreement. Canada, as a member of NATO, and Argentina, as a major

non-NATO ally, are not subject to these sanctions.

Although the goal of ASPA and Nethercutt Amendment has been to encourage

countries to sign Article 98 agreements, unintended consequences arising from the

sanctions imposed by ASPA/Nethercutt are affecting U.S. national interest in the region. On the military side, loss of IMET has been especially significant. IMET is

a key, cost-effective vehicle for military-to-military engagement with future leaders

of security institutions in the hemisphere. Hundreds of Latin American military officers will not receive United States training in 2006 because of recession of IMET

in the 12 countries not ratifying Article 98 agreements. The dollar amount of these

losses is difficult to calculate and in any case is not dramatic, but the effect in terms

of U.S. interest is substantial and will be multiplied every year that IMET is suspended:

• The transition from authoritarian military regimes to democratic government

which took place throughout the region during the 1980s and 1990s was marked

by steadily improving civil-military relations. This process was encouraged by

the training received by Latin American military officers through IMET. Civilian control over the military in Latin America, with broad respect for human

rights, is now the norm and the threat to democracy in the region comes not

from potential military coups but from authoritarian populism. Exposure to the

U.S. example through IMET training aided this process and loss of IMET would

sever an important linkage between future military leaders and the U.S. model

of civilian control over the military.

• Military-to-military engagement with the Americas strengthens U.S. security.

Mexico is the most obvious example of the importance of improved security cooperation. The Mexican army and navy are undergoing a dynamic process of

change, evolving into more professional and transparent institutions under increased civilian control. The loss of IMET for Mexico at this important moment

is especially inopportune, closing the door on potentially improved relations

with institutions that have a direct effect on our borders and our security. In

the Andean countries of Peru, Bolivia, and Ecuador—all of which have been cut

off from IMET—the United States has a vital interest in preserving democracy,

respect for human rights, and combating international security threats, such as

drug trafficking, trafficking in persons, and arms smuggling—all areas where

military-to-military cooperation with the United States is a key component.

• Efforts to promote regional and international security may be adversely affected

by ASPA sanctions. The militaries of Brazil, Chile, and Peru are increasingly

involved in international peacekeeping and coalition efforts. The ability of military officers from these nations to more closely integrate with United States

and coalition units would be adversely affected by loss of IMET, which provides

them access to U.S. doctrine and tactics. Regional security efforts, such as those

undertaken with the countries of the Organization of Eastern Caribbean States

under the Regional Security System (RSS), could be hampered by ASPA sanctions imposed on Barbados, the key participant in that regional group. With

Trinidad and Tobago, another key Caribbean nation, also under ASPA sanctions, effective cooperation with the defense and security forces making up the

so-called ‘‘Third Border’’ of the United States is more difficult.

• Abrogation of IMET and other forms of United States military assistance plays

into the hands of anti-United States ultranationalists on the left and right in

Latin America. While in many of the countries of the region there may be broad

8

support for the ICC or for not signing an Article 98 agreement with the United

States, the ultranationalists achieve an important goal when relations between

their own militaries and the United States are severed. In Ecuador, the United

States must renegotiate the bilateral agreement due to expire in 2009, allowing

for use of the Ecuadorian air base at Manta as a Forward Operating Location

in tracking drug flights in the region. Extension of this agreement could be negatively affected by weakened military-to-military relations. • Nations whose training options with the United States are cut off will look elsewhere: Europe perhaps, but China, Russia, Cuba, and Venezuela are other possibilities. Young officers gain much more than martial knowledge from their

military training. Like their civilian counterparts who study at foreign universities or technical schools, they acquire a cultural experience that may stay with

them a lifetime. Just as the several generations of Latin American politicians

and economists who carried out the transition to democracy and free-market

economies in the region benefited from their training in the United States

thanks to a wide assortment of exchanges programs, so did their fellow citizens

in the military learn from the U.S. example. One military colleague compared

IMET to U.S. savings bonds—the payoff is years away—when the lieutenant

commanders and majors become admirals and generals. If IMET is eliminated,

that payoff will never come. • As in the case of IMET, the figures for potential losses of Foreign Military Financing (FMF) in the Americas are not particularly significant in dollar terms

but do play a part in establishing linkages to the United States, especially for

smaller countries. Loss of FMF and access to possible Excess Defense Articles

turns countries away from reliance on the United States and toward closer relationships elsewhere. • Chile is likely to become a prime showcase of the negative effects of ASPA. No

country in the hemisphere has been more successful in consolidating democratic

governance, in establishing an environment conducive to entrepreneurial competitiveness, and in improving the lives of its citizens by shrinking poverty and

unemployment. Chile signed a free trade agreement with the United States and

plays a positive, visible role in international peacekeeping and in support of regional security. Civil-military relations in Chile have vastly improved since the

dark days of the Pinochet dictatorship and the United States-Chilean militaryto-military relationship has never been better. If the Chilean congress ratifies

adherence to the Rome Statute, which it is likely to do in the near future, and

when ASPA sanctions kick in, this relationship will be set back. The imposition

of sanctions will send a negative message to the Chilean military and civilian

elites regarding the reliability of the United States as a partner, and public

opinion will question why the United States would take such steps against a

friendly country.

The unintended effects of the Nethercutt amendment prohibiting Economic Support Funds (ESF) from benefiting governments that have not signed Article 98

agreements are similar to those resulting from loss of IMET in terms of their negative impact on U.S. policy interest. ESF is the lifeblood of United States funding

for structural reform in Latin America, for encouraging improved governance,

strengthening the rule of law, fighting corruption, and promoting sound economic

policies, including the enforcement of labor laws. It is a precious resource for U.S.

policymakers—one which over the years has been in increasingly short supply.

While Nethercutt does not eliminate ESF spending in countries not ratifying Article

98 agreements, it does deny ESF funds for the benefit of governments, a definition

that is broadly applied.

In Andean countries like Bolivia, Peru, and Ecuador that cry out for reforms in

governance, ESF cannot be used to fight corruption, strengthen justice systems, or

improve governance if the state is a beneficiary of these funds—the purpose, in fact,

of such reforms. ESF may go to NGOs and other good use may be made of it, but

not necessarily to the best advantage of the United States or the host country. Regional efforts may also be hamstrung by limitations on ESF spending. For example,

the United States is redoubling its efforts to promote trade capacity building in Central America in the wake of the Central American Free Trade Agreement (CAFTA/

DR) but ESF expenditures for regional projects cannot be made if Costa Rica, which

has not signed an Article 98 agreement, is deemed to be a beneficiary. Likewise,

the United States cannot support regional anticorruption efforts promoted by the

Organization of American States if funding goes to nations under ASPA sanctions.

Projects under the State Department’s ‘‘Third Border Initiative’’ with the Caribbean

funded by ESF must exclude the key states of Barbados and Trinidad and Tobago.

The effect of the Nethercutt amendment in dollar terms may not seem dramatic.

But over time, ESF now being reprogrammed within countries to comply with

9

Nethercutt regulations is likely to be redistributed to other countries or regions.

Nethercutt limitations on ESF spending also limit the flexibility of U.S. policymakers who seek to encourage stronger governance and economic development in

the region. In a subtle way, this process, like the loss of IMET, strengthens the

hand of the ultranationalists who resent calls by the United States and the international community for structural reform. Those in governments who promote reform and seek to work with the United States to bring it about are in turn cut off

from support.

The well-intentioned, but nonetheless negative, results arising from ASPA sanctions beg the question of other possible options available to the United States. Traditional means of providing U.S. servicemembers with needed legal protection, such

as status of forces agreements (SOFAs) or by providing them with temporary administrative/technical (A&T) status in country via the exchange of diplomatic notes, are

options—but only for military personnel and not for all U.S. citizens. The challenge

to lawyers and policymakers alike will be to find a means to protect American citizens without recurring to a sanctions regime that undercuts, however unintentionally, U.S. national interest in key countries of the Americas.

[Note.—CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this testimony should be understood to be solely

those of the author.]

Senator COLEMAN. Thank you. By the way, am I pronouncing—

Ambassador, is it DeShazo or DeShazo?

Ambassador DESHAZO. DeShazo.

Senator COLEMAN. Thank you very very much, Ambassador. I appreciate it.

Mr. Isacson.

STATEMENT OF MR. ADAM ISACSON, PROGRAM DIRECTOR,

CENTER FOR INTERNATIONAL POLICY, WASHINGTON, DC

Mr. ISACSON. Senator Coleman, I want to thank you for holding

this hearing and for inviting me to participate. My name again is

Adam Isacson. For 10 years, I have managed a program at CIP

that monitors United States security relations with Latin America

and the Caribbean.

2006 marks the first time in my 10 years that I am seeing actual

reductions in military assistance region wide, and the reason for

this is the American Servicemembers’ Protection Act.

When the ASPA was first enacted, I admit that we didn’t make

it a priority for our work. The sanctions in section 2007 of the law

cut military aid only, and CIP was already advocating reduced

military aid to ease many countries’ transitions away from military

rule at the time. Besides, we saw that the law had a national interest waiver allowing the President to lift sanctions at will. Whenever a waiver like that gets attached to laws cutting military aid

for human rights reasons, we know that any administration, Democrat or Republican, will activate that waiver without a second

thought, and the military aid will flow as always. We thought—

why would it be different in the case of the ASPA—nobody’s really

going to cut FMF and IMET, are they? We also noted that military

aid would continue to flow through several other programs untouched by the ASPA sanctions. The State and Defense Departments both have large and growing counterdrug and counterterror

aid programs outside the ASPA’s purview, and these, plus joint exercises in deployments, already make up most military aid to Latin

America. Since the aid cutoff was so partial, we, in fact, wondered

how exactly the ASPA was going to achieve its own stated objective

of protecting U.S. personnel. At the outset, our main concern at the

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beginning was that if civilian government leaders chose not to sign

Article 98 agreements, the sanctions didn’t punish them, it punished their militaries. We saw that as provoking friction in Latin

America’s fragile civil military relations, but it soon became clear

that there were more reasons to be concerned. As punishments

were handed out to a dozen countries throughout Latin America,

including some of our closest friends, we saw it doing serious damage to the United States’ standing in the region. The message received in Latin America across the political spectrum in the mainstream media was very negative. After years of scolding on human

rights through statements like the annual reports that have been

released today, many Latin Americans now perceive the United

States as hypocritically trying to protect its own soldiers from what

they saw as an international human rights tribunal. It didn’t help

that the diplomatic offensive to sign Article 98 agreements was

happening in 2004 just as revelations began to surface about Abu

Ghraib and Guantanamo. The message was pretty bad. Many

democratically elected Latin American leaders in countries we considered to be close to the United States, wore their refusal to sign

Article 98 agreements almost as a badge of honor. It gave them a

low-cost opportunity to make a public display of standing up to the

big bully to the north. The impact on relations worsened in late

2004 when the Nethercutt provision extended the sanctions beyond

military aid to include ESF. Suddenly, badly needed development

programs were in play, and ESF to the sanctioned Latin American

countries has been cut by more than 55 percent between 2003 and

this year.

So, what can we do about this? The simplest answer is just to

repeal section 2007 and the Nethercutt provision. There is no

shame in recognizing that these sanctions have proven to be too

blunt an instrument.

Repealing the sanctions would send a message to Latin America

and the rest of the world that we get it, that we want our relations

with the region’s democracies to be based on mutual respect. It

would also send the message that we trust our own diplomats to

decide whether or not a country poses a risk of sending U.S. personnel to the ICC for spurious reasons. But if it proves too difficult

to repeal section 2007, the law still gives the executive branch a

good deal of flexibility, if it’s willing to be flexible and if it gets a

message from the U.S. Congress that flexibility will be tolerated.

As I’ve noted, section 2007 already includes the national interest

waiver. This can be invoked much more often than it has been. Section 2007 also exempts countries designated as major non-NATO

allies. Until now, this label has been largely symbolic. It doesn’t

imply mutual defense, and it doesn’t carry a lot of significant advantages for military assistance. But right now, Argentina is our

only major non-NATO ally in Latin America. Granting this status

to a few more countries in the region with whom we have very good

relations would stop the sanctions and symbolically improve relations with our democratic neighbors. These measures—in addition,

I heard Senator Coleman mention in his opening statement the

idea of positive reinforcement, which actually hadn’t even occurred

to me, thinking that it just simply wasn’t in the U.S. budget, but

it would be great. These measures offer easy ways to extract us

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from the blind alley that the ASPA sanctions have proven to be.

The additional risk to U.S. personnel in the region will be zero

since so many personnel are already there carrying out programs

funded through other accounts; International Narcotics Control, the

Andean Counter-Drug Initiative, the DOD Counter-Narcotics budget, the DOD Counter-Terror Fellowship Program, JCET deployments, joint exercises. They’re already there, and they’re already,

I suppose, at risk, but nobody seems too concerned.

We must remember that Latin America is in a critical period of

political upheaval. Citizens are showing more frustration with poverty, inequality, and corruption, and they’re taking it out on their

leaders. They’re losing faith in the democratic process, and they’re

electing leaders who deeply mistrust the United States. This is a

time when we must be a generous partner and a positive force in

the region, not a scold seeking new reasons to distrust and disengage. This is no time to punish our friends. Thank you very

much. I look forward to your questions.

[The prepared statement of Mr. Isacson follows:]

PREPARED STATEMENT OF ADAM ISACSON, DIRECTOR OF PROGRAMS, CENTER FOR

INTERNATIONAL POLICY

Senator Coleman, Senator Dodd, members of the subcommittee, I want to thank

you for holding this hearing, and for inviting me to participate. My name again is

Adam Isacson; for 10 years I have managed a program at the Center for International Policy that monitors and studies United States security relations with

Latin America and the Caribbean.

2006 marks the first time in my 10 years that I am seeing even slight reductions

in military assistance to the Western Hemisphere. This owes in no small part to

the American Servicemembers’ Protection Act (ASPA), which cuts some military aid

to countries that do not exempt U.S. personnel from the International Criminal

Court (ICC).

WHY WE OPPOSE THE ASPA

When the ASPA was enacted in 2002, my organization did not have a strong position on the law. While we supported the International Criminal Court, we also favored giving less military aid to Latin America.

Excesses committed during the cold war made military aid unpopular throughout

the human rights community, both here and in the region. We preferred a greater

emphasis on civilian institutions in countries where transitions from military dictatorships to civilian democracies were still fragile.

Because it cut off only military assistance, section 2007 of the ASPA did not pose

a major concern for us at first, even as the list of Latin American militaries getting

no FMF or IMET began to grow. We were not about to advocate a restoration of

weapons and lethal training, and we noted that many of the strongest critics of the

ICC were also some of the strongest proponents of military assistance to Latin

America. It seemed to us as though we did not have a dog in this fight.

We did have concerns, though, about the impact on regional civil-military relations that the military aid cutoff might have. Whether or not to sign an Article 98

agreement is a choice that civilian leaders must make, but section 2007 was punishing Latin America’s militaries if civilian governments chose not to sign. We saw

that as provoking friction between civilian and military leaders in an unhelpful way.

Our concerns about ASPA increased as we saw how the law’s implementation was

damaging the United States’ standing in Latin America. The effort to punish countries that don’t sign Article 98 agreements has been perceived, including in the region’s mainstream media, as bullying or arm-twisting, the opposite of a ‘‘good neighbor’’ policy.

As aid cutoffs proceeded, two very negative messages were received throughout

Latin America, whether fairly or not. The first was, ‘‘The U.S. Government, which

often scolds us about our human rights records, is now trying to protect its soldiers

from an international human rights body.’’ (This message was especially poorly

timed, coming just as revelations of abuses at Abu Ghraib and Guantanamo began

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to surface.) The second message was, ‘‘The U.S. Government doesn’t trust us not to

extradite its military personnel to the Hague for frivolous reasons.’’

The ASPA became one of several reasons why the United States’ approval ratings

in most Latin American countries have dropped sharply since 2000 (see box). In this

context, we were treated to the spectacle of democratically-elected Latin American

leaders, most of them from countries that maintain good relations with Washington,

wearing their refusal to sign Article 98 agreements as a badge of honor.

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• ‘‘Absolutely no one is going to make me cower. Neither the government, nor

Alfredo Palacio nor the Ecuadorian people need to be afraid.’’—Ecuadorian

President Alfredo Palacio, June 2005.

• ‘‘[Signing an Article 98 agreement] would go against the multilateral order and

against the principles of defense of human rights. . . . We may be poor, but we

have our dignity.’’—Costa Rican Foreign Minister Roberto Tovar, September

2005.

• ‘‘We will not change our principles for any amount of money. We’re not going

to [go] belly up for $300,000 in training funds.’’—Barbadian Ambassador to the

Organization of American States Michael I. King, August 2005.

• ‘‘We will assume any consequences that might result from our signature [of the

Rome Statute]. It is a signature that comes from our principles and this government’s political convictions. Whether or not their will be a reduction in U.S. aid

is not relevant to us, what is relevant is that our convictions and principles

mean something.’’—Mexican Presidency spokesman Ruben Aguilar, February

2006.

• ‘‘Peru will not sign any agreement that impedes it from submitting any country’s citizens to the jurisdiction of the International Criminal Court. Peru rejects

pressure from any other country on its foreign policy.’’—Peruvian Foreign Minister Manuel Rodriguez, August 2004.

It is a great shame that, for the region’s elected leaders, these defiant statements

against U.S. policy were an easy way to gain domestic political support. This speaks

volumes about the damage that the ASPA sanctions are doing to Latin Americans’

attitudes toward us.

By 2005, 11 Latin American countries had their FMF and IMET military assistance cut down to nothing. That number grew to 12 late last year when Mexico ratified the Rome Statute and refused to sign an Article 98 agreement. Chile too may

be close to ratifying the International Criminal Court, and may soon be added to

the list of sanctioned countries.

The damage was worsened by the so-called ‘‘Nethercutt provision’’ added in December 2004 to the Foreign Operations Appropriations bill. For the first time, the

sanctions went beyond military aid to include Economic Support Funds, one of

USAID’s core economic-aid programs.

Suddenly, badly needed development and democracy programs were in play, and

even more resources were taken from the most potentially pro-U.S. governments in

the region. Though an exception has been made for democracy and rule of law programs, Economic Support Funds to sanctioned Latin American countries will decline

by more than 55 percent from 2003 to 2006, from $52 million to $23 million.

POLICY ALTERNATIVES

What can be done about the harm that ASPA is doing to United States’ relations

with our friends in Latin America? The simplest answer would be to repeal section

2007 of the American Servicemembers’ Protection Act, and to omit the Nethercutt

provision from the 2007 Foreign Operations Appropriations law.

There is no shame in recognizing that these sanctions have proven to be too blunt

an instrument, that they have hurt relations with our friends in a region where the

United States’ image is already suffering, and that they have provided grist for regional leaders, like Venezuela’s Hugo Chavez, who have gained adherents by portraying the United States as a unilateralist bully.

Repealing the ASPA sanctions would send a message to Latin America and the

rest of the world that we ‘‘get it,’’ that we understand the importance of

multilateralism and mutual respect as a way to resolve such concerns as the possibility of U.S. personnel being unjustly extradited to the Hague.

It would also send a message that we trust our own diplomatic corps to determine

which countries pose any threat of detaining and extraditing U.S. personnel for spurious reasons. If our Department of State believes such a danger exists, it should

impose its own sanctions and pull out personnel as necessary. It does not need a

legal provision to inflexibly trigger a blanket punishment.

I strongly doubt that revoking the sanctions would increase the threat of U.S. personnel being sent to the ICC for politically motivated reasons. After all, the sanctions have frozen only a portion of U.S. military assistance. With the likely exception of Venezuela, the security forces of the 12 sanctioned Latin American countries

can still get aid through State Department programs outside the ASPA’s jurisdiction, such as International Narcotics Control and anti-terror, border security and

small-arms programs. Aid also flows from the Defense Department, through its

large counternarcotics aid program, the fast-growing Counterterrorism Fellowship

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Program, and the Southern Command’s many joint exercises and training deployments.

None of these activities has been curtailed by the ASPA, and as a result, the

countries being sanctioned have experienced only modest reductions in overall aid

and training levels. For instance, all continue to send students to the Western

Hemisphere Institute for Security Cooperation at Fort Benning, GA. Yet, I have

heard no expressions of concern about the legal status of the dozens of U.S. personnel who, right now, are present in sanctioned countries to carry out these programs.

I understand that it may prove politically difficult to repeal section 2007, though

I hope at least that the Nethercutt provision, which is perceived in the region as

particularly mean-spirited, may cease to appear in the foreign operations bill. If a

legislative fix proves to be impossible, though, all is not lost. The law gives the executive branch a good deal of flexibility in its application. It is up to the executive

to take advantage of this flexibility.

First, section 2007 includes a ‘‘national interest waiver.’’ According to subsection

(b) of that section, aid to a sanctioned country may flow freely if the President tells

Congress that doing so ‘‘is important to the national interest of the United States.’’

Those of us who have worked on human rights over the years have come to view

such waivers as a bit of a joke, because they are usually invoked without a second

thought. In past foreign aid legislation, the addition of a ‘‘national interest waiver’’

has taken the teeth out of attempts to stop assistance to foreign militaries with poor

human-rights records. Whether run by a Democrat or a Republican, the administration in power can be expected to exercise that waiver at the first opportunity, and

aid to the abusive military will begin to flow.

When the ASPA was enacted, I expected the Bush administration to grant waivers in the majority of cases, especially when it came to countries that were considered good friends and top aid recipients, like Mexico, Peru, or Ecuador. Instead, the

waiver power has been used quite sparingly, and even some of our closest allies in

Latin America have been stung by the sanctions. Clearly, a greater willingness to

issue national interest waivers—as happens routinely when enforcing human rights

conditions—would undo much of the damage the ASPA has inflicted on U.S. relations with the region.

Second, in the cases of countries with which the United States has a history of

close relations, the law offers another way to avoid sanctions: Declare those countries to be major non-NATO allies. Section 5l7 of the Foreign Assistance Act, enacted in 1996, allows the president to grant this status to a foreign country.

This is a largely symbolic label, since major non-NATO allies do not enjoy the mutual defense and security guarantees given to members of the North Atlantic Treaty

Organization. It merely implies that a close working relationship exists with a country’s defense forces. Other benefits are very small: They include priority access to

excess defense articles, stockpiling of U.S. arms and equipment, participation in cooperative research and development programs—and now, exemption from the sanctions in section 2007 of the ASPA.

Argentina, named in 1998, is the United States’ only major non-NATO ally in

Latin America. Granting this status to a few more U.S. friends in the region would

undo the ASPA sanctions while having little or no impact on the flow of U.S. military aid.

Whether through abolition of section 2007 of the ASPA, or through a mix of waivers and major non-NATO ally determinations, it should be relatively easy to extract

us from the blind alley that the ASPA sanctions have proven to be in Latin America.

The additional risk to U.S. personnel in the region will be zero, since many are already there, carrying out programs funded through other means.

Latin America is in a critical period of political upheaval, in which citizens are

showing more frustration with poverty, inequality, and corruption, and losing faith

in the democratic process. This is a time when the United States must be a generous partner and a positive force in the region—not a scold seeking new reasons

to distrust and disengage. This is no time to levy sanctions against our friends.

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16

17

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Senator COLEMAN. Thank you, Mr. Isacson. Now, Dr. Wedgwood.

STATEMENT OF DR. RUTH WEDGWOOD, DIRECTOR OF THE

INTERNATIONAL LAW AND ORGANIZATION PROGRAM, THE

PAUL H. NITZE SCHOOL OF ADVANCED INTERNATIONAL

STUDIES (SAIS), THE JOHNS HOPKINS UNIVERSITY, WASHINGTON, DC

Dr. WEDGWOOD. Thank you very much for having me, Senator

Coleman, and it’s a pleasure to be here. I’ll open by saying that I

spent one very happy year up at the U.S. Naval War College where

IMET activities were much of the centerpiece of the curriculum of

19

having visiting foreign officers in for war games and doctrine training, and I certainly can see the importance of that program. You

are familiar, and therefore, I will not rehearse at the moment the

problem of the third-party state coverage under the ICC. I recently

did a panel with my good friend, David Scheffer, over at GW discussing what had happened, and even Ambassador Scheffer acknowledges it would have been a good thing if Phillippe Kirsch and

company had granted our request for adjournment of the ICC negotiations in 1998 to a second session so that it wouldn’t have been

such a hurried, fevered atmosphere. And I spent a good deal of

time taking Christian Maquiera, the deputy permanent representative from Chile, to lunch, hoping to look for a way in which we

could insert some language that would shelter American servicemen abroad. But at the same time, although I am fervently committed to the doctrine of war crimes enforcement—I’ve spent much

of my professional life doing that—what it has left me with is the

reluctant realization that people do differ in their understanding of

what the standard rules of Hague Law mean on the battlefield,

proportionality, what is a military target, how do you conduct an

air war. We saw this even in Kosovo and with a potential liability

in the Yugoslav tribunal, that how we conducted our air war over

Kosovo was disputed by many parties, many NGOs, some countries. Fifteen thousand feet altitude they said was too high, we said

it was better. So, though the fundamental principles of the law of

war are clear and undisputed, nonetheless, when it comes to those

mixed questions of fact and law, you do get real-life disputes. And

that’s what one worries about in any criminal court, particularly in

criminal law as opposed to civil law. So, I was sorry to see that the

earnest attempts of the United States to have some kind of accommodation at Rome were not met, that in the long, long post-Rome

preparatory sessions, nobody was willing to go so far as to think

about it seriously. So, we’re stuck in a dilemma, but it’s not entirely of our own creation. And I was noting down your list of alternatives. I’m not intimately involved in the government’s own Article 98 process, I just watch it from the outside, but the one reason

I can see to be given against flexibility is a kind of most-favored

nation problem. If you’ve already gotten 100 countries signed up to

a standard-form contract, which is available on the Web—you insert the name of the country, and then you go on the State Department Web site—folks who have already signed up to the full monty

are going to feel a bit abandoned. And in any kind of negotiation,

whether it is with a credit card company or your rental landlord,

a standard-form contract has this virtue of creating stable expectations. But I can see, just running down logical policy options, the

thought that, as you suggest, the Executive Branch could consider

granting waivers in the national interest with more flexibility. I

take it that currently they’re granted largely, perhaps only, when

a country is about to ratify an Article 98 agreement, to get them

a safe zone so they have time to work it through their congress.

So, one could say that, and certainly express the view of Congress, they should be granted with more flexibility on more occasions. National interest is a category in which the Congress certainly has a right to a point of view. Second, just as a logical law

professor-type thought, one could think about scaled waivers, perVerDate 11-MAY-2000 13:03 Mar 15, 2007 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6602 H:\DOCS\80081.SEN mich PsN: mich
20

haps this is the suggestion about going program by program, that

instead of having to cut 100 percent, you could cut off 90 percent

or 40 percent, but something that would both send the message

that you want to send and yet also indicate that you’re not entirely

happy with the arrangement. I also worry about, because I used to

work over at Justice, what can be called a paperwork tax, the view

of the stolid interagency process, how hard it is to work any piece

of paper that requires a Presidential signature through the deputies’ committee and up to the President. And so, I could imagine

a kind of executive fast track, that somehow the executive would

undertake to have a decision process that would allow these things

to be considered with expedition. Fourth, just another logical law

professor-type suggestion, and I don’t like my own suggestion, is

confidential understandings. Woodrow Wilson didn’t like secret

treaties, and the Case amendment says you have to report all of

your treaties to the Congress.

But I do suppose that there are countries that would be willing

to undertake on the QT that they would not surrender our people

and yet, would not want to have the diplomatic burden of justifying

themselves to Europe or the European Union or other members of

the ICC. I would worry about the status of those confidential understandings if anybody was ever presented to the ICC. Was it

really enforceable? But it’s true that much of life in diplomacy occurs sotto voce.

I would beware of the suggestion about simply exchanging notes

on SOFAS. Those are no different than Article 98 agreements. In

fact, Article 98 was aimed at SOFAS. So, insofar as the European

Union objects entirely to our conclusion of SOFA agreements or Article 98 agreements, they would predictably object as well to a

standard status of forces agreement or a note exchange.

On the court’s side, and I have spent part of my cocktail hours

trying to push these ideas gently when I meet people in Europe,

they could do some things that would be helpful. I am a great fan

of Moreno-Ocampo, the prosecutor. I think he’s done the adult

thing in focusing the court on massacre law, as I will call it, undisputed doctrines of law with the most horrendous kinds of crimes,

and I think it was really a very sound and sage judgment to focus

on Africa, Uganda, Congo, Central African Republic. And certainly,

if the Yugoslav tribunal is any case in point, one discovers that

these investigations and trials are far more complicated than you

ever expect.

So, I think the court actually already has a very full workload

for quite some time to come, and they will discover, as the Yugoslav tribunal discovered, that you ultimately can’t be effective without the support of major powers. So, I think part of the issue has

been mooted for a while by a workload. But the court has, within

its own power, the capacity to help solve the problem. It could be

a declaration of prosecutorial policy that will not take defendants

from countries that are not themselves parties to the ICC statute,

that it will not use the mere existence of territoriality as a sufficient predicate, it will want the permission of the state of nationality. The prosecutor could do that as a matter of office policy if he

chose, and I think that would be a wise and sage thing to do. I’ve

also been urging on them a little-known Italian legal idea, of ‘‘douVerDate 11-MAY-2000 13:03 Mar 15, 2007 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6602 H:\DOCS\80081.SEN mich PsN: mich
21

ble complementarity.’’ It’s used in different senses, so one has to be

careful, but double complementarity says that in the court’s duty

to make sure that the national legal system has first been given

a chance to address a problem, that not only the case, but the person comes home. So, if I get arrested in Italy for having sat on the

defense policy board, I would first be sent home and dispatched to

the Department of Justice. And only then, could the ICC ask to see

me. And that, in some degree, converts it from the kind of hostage

taking that we fear to a legal political confrontation with the

United States as a whole, which is where the issue should lie. But

I still do worry that that’s not a widely-accepted idea. It’s just my

idiosyncratic suggestion.

And then, we have coming up the 2009 ICC Review Conference.

And here, we may have considerable trouble. There are a number

of issues that are pending on the treaty—the implementation of the

category of aggression—which is going to cover a whole lot of

things according to different people. But every time that we act beyond a narrow construction of the article 51 of the United Nations

charter—which only allows, some say, self defense when there’s an

armed attack, actual received armed attack, or with a security

council resolution, which is often very difficult to get—somebody

somewhere may say it’s not only illegal, it’s aggression. We just

saw that in the Iraq war, and that definition is going to be actualized most likely at the 2009 Review Conference. Second, I’ve heard

telltales that there may be a challenge to the legality of our Article

98 agreements. So, one thing you have to bear in mind is what effect it may have on the upcoming agenda at the 2009 Review Conference.

So, I think it’s unfortunate that we’re in this situation. I take the

point that it is at times awkward for our diplomacy and our foreign

policy and good projects that we want to do jointly. I don’t see any

easy solutions. I think the first step probably would be for the Congress or this committee to express its view to the State Department

and the Defense Department and the President that they think

that the statute is plenty commodious to accept a broad definition

of national interest in regard to waivers and see what then eventuates. Thank you very much, Mr. Chair.

[The prepared statement of Dr. Wedgwood follows:]

PREPARED STATEMENT OF DR. RUTH WEDGWOOD, EDWARD B. BURLING PROFESSOR

OF INTERNATIONAL LAW AND DIPLOMACY AND DIRECTOR OF THE INTERNATIONAL

LAW AND ORGANIZATIONS PROGRAM, PAUL H. NITZE SCHOOL OF ADVANCED INTERNATIONAL STUDIES, JOHNS HOPKINS UNIVERSITY, WASHINGTON, DC

Mr. Chairman, I appreciate the opportunity to discuss the situation of the United

States in regard to the International Criminal Court (ICC) and the role of so-called

‘‘Article 98’’ agreements in protecting American personnel from the unwarranted exercise of third-party jurisdiction by the ICC.

The United States plays a unique role in international security affairs. We serve

as an anchor of regional security in conflict-prone areas around the globe. We have

unique capabilities in lift, logistics, and intelligence, and are frequently called upon

to support the efforts of the international community in peacekeeping and other

emergencies. The United States maintains the overseas deployment of more than

200,000 soldiers, sailors, airmen, and marines.

Our armed services are trained to obey the law, including the law of armed conflict. The United States deploys military lawyers with its forces in the field, in an

effort to assure that the conduct of the American military conforms to the ideals of

22

1See generally, Dieter Fleck, ed., The Handbook of the Law of Visiting Forces, Oxford University Press 2001. 2See Foreword by Justice Robert H. Jackson, in Sheldon Glueck, The Nuremberg Trials and

Aggressive War (1946) (‘‘There are many theoretical difficulties which cause violent debate but

which do not plague us practically in the Nurnberg case at all. What is aggression and what

is self-defense? These questions might cause considerable trouble in other circumstances. . . .

The Nurnberg trial . . . has avoided wrangles over definitions.’’) 3See Security Council resolution 1593, March 31, 2005 (resolution concerning Darfur).

the law. Maintaining the standards of military law involves important components

of planning, training, and advice, as well as discipline against any willful violations.

The responsibility for assuring the lawful conduct of military forces in the discharge of their duties is a solemn one. In peacetime, it is a duty exercised by the

‘‘sending’’ country that deploys its armed forces abroad. It is helpful to recall that

in the model ‘‘status of forces agreements’’ used by NATO and by the United Nations in peacekeeping, jurisdiction for the investigation and prosecution of any

crimes committed in the course of official duties belongs primarily to the state deploying the forces overseas.1 This responsibility of the sending state also has been

a long-standing feature of bilateral ‘‘status of forces agreements’’ (SOFAS).

The U.S. Government has had significant reservations about some aspects of the

Treaty of Rome that created the International Criminal Court in 2002. This stems

both from a sense of fairness toward our Armed Forces and a concern about the efficacy of American military operations. To be sure, in any military action, we abide

by the principles of battlefield law, including the duty of proportionality that seeks

to avoid unnecessary collateral damage, and the duty of confining military targeting

to permissible military objects. But as we saw in the Kosovo campaign in 1999,

there are many difficult and unsettled problems in the practical application of the

law of war, both in air and ground campaigns. One might hesitate to give an international judge the effective power to rewrite our rules of engagement.

So, too, the jurisdiction of the International Criminal Court may extend after a

treaty review conference in 2009 to the prosecution of the crime of ‘‘aggression.’’

This is an offense with unsettled parameters. The chief American prosecutor at Nuremberg, United States Supreme Court Justice Robert H. Jackson, observed in 1946

that it is difficult to define aggression, although we knew the Nazis had committed

it.2

In the present day, the United States may find circumstances where we must decide whether to use military force, without an authorizing vote of the United Nations Security Council. The willingness of the Security Council to take action

against a threat to international peace and security is sometimes hard to predict.

It may be influenced by the particular membership of the Council, their national

ambitions, and even their energy politics.

Thus, the United States may face situations where it must decide to act alone or

with coalitions of the willing, and without the aegis of a Council resolution. Article

51 of the U.N. Charter recognizes the inherent right of self-defense in case of an

armed attack. But in a world of weapons of mass destruction and catastrophic terrorism, the United States may have to respond before an attack is actually launched

against our shores. There are also situations of genocidal violence against a vulnerable population, in which we may wish to consider intervention as part of a moral

duty to protect the innocent. These very acts of selflessness may be styled by others

as an illegal use of force or even ‘‘aggression.’’

Thus, in my view, there is still a potential hazard to American security interests

from an irresponsible exercise of the jurisdiction of the International Criminal

Court. These hazards are made more acute by the claim under the Rome treaty that

an American national could be subjected to the Court’s jurisdiction, even though the

United States has not become a party to the treaty.

I am pleased to note that the first prosecutor of the International Criminal Court,

Luis Moreno-Ocampo, has wisely chosen to exercise the jurisdiction of the ICC in

cases where the treaty court was invited to intervene by a war-torn country, or

where the Security Council has made a referral under its Chapter VII powers.3 Mr.

Moreno-Ocampo has not sought to inject the court into the decision-making processes of NATO, or to target the nationals of third-party states that have declined

to join the court, unless there is Security Council approval.

Nonetheless, the potential is still present under the Rome statute for such an

event to occur. Both at the Rome treaty conference in 1998 and at the preparatory

commissions working on court rules thereafter, the United States asked for a provision to make clear that any third-party nationals would not be subjected to the new

court’s jurisdiction, unless a case was referred by the Security Council. This was

founded on a fundamental principle that a treaty does not bind nonparties.

23

4See, e.g., Ruth Wedgwood, The Irresolution of Rome, 64 Journal of Law and Contemporary

Problems 193 (2001), also available at https://www.law.duke.edu/journals/lcp/articles/

lcp64dWinter2001p193.htm.

The United States has sought such a guarantee against unwarranted jurisdiction

from the ICC preparatory commissions on repeated occasions.4 I testified before the

Senate Foreign Relations Committee in the year 2000, to ask that the Congress

allow more time to permit the American ambassador at post-Rome conferences to

obtain the necessary guarantees. But it became apparent thereafter that the claim

of a right to assert prosecutorial power over third-party nationals has become an

article of faith for some ICC supporters, including some leaders of the preparatory

conferences.

Hence, the decision was reached by the Congress to protect U.S. personnel who

serve their country overseas through the modality of bilateral state-to-state agreements. It is well to note that such agreements are actually anticipated by Article

98(2) of the Rome treaty. Article 98(2) states that the International Criminal 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.’’

If the conference leadership at Rome had acted on the request of the United

States to exclude the exercise of the court’s jurisdiction over third-party nationals—

citizens of states that have not joined the International Criminal Court—then bilateral agreements would not be needed.

But this was rebuffed, and Washington logically turned to its friends and allies

around the globe, and asked each for a bilateral agreement that would preserve the

long-standing arrangements for overseas deployments. We have sought, reasonably,

to prevent the surrender of Americans to an international court that we have not

joined.

Under these agreements, the United States, as the so-called ‘‘sending state,’’

would generally retain primary jurisdiction for the investigation and prosecution of

any alleged offenses arising in the discharge of official duties. The ‘‘receiving state,’’

i.e., the foreign country where American troops have been stationed or deployed,

would frequently retain jurisdiction to investigate and prosecute any offenses committed in a private capacity. But no personnel would be surrendered by the receiving state to the ICC without the consent of the United States as sending state.

I do not agree with the critics who claim that Article 98(2) is limited to the particular Status of Forces Agreements that happened to be in force at the time of the

conclusion of the Rome treaty. That would make little sense, since we may enter

into an agreement with a new country to help meet a new threat, or modify a Status

of Forces Agreement to support a new effort.

Nor should Article 98(2) be read to exclude bilateral agreements that protect nonmilitary U.S. personnel and other U.S. persons, or informal bilateral arrangements.

The protection of U.S. persons abroad has long been a part of consular conventions

as well as the old-fashioned friendship, commerce, and navigation treaties. In a

world of global commerce, thousands of American civilians and tourists, as well as

government contract personnel, will travel abroad. They deserve protection from the

jurisdiction of an international body that we have not joined.

To suppose that the use of the word ‘‘sending State’’ in Article 98(2) of the Rome

treaty is limited to people who were officially dispatched by a government would be

an unduly narrow reading of a text hurried to completion in five weeks under pressure cooker conditions. The text was so quickly rendered that the United Nations

has offered repeated ‘‘corrigenda’’ and technical corrections.

The exclusion of jurisdiction over all U.S. persons may be necessary to protect individual military personnel on a visit away from their primary overseas base, as

well as military personnel deployed in situations where there is sometimes no formal status of forces agreement. It may be needed to protect intelligence personnel,

American relief and aid workers, and private contractors, not to mention a bewildered tourist.

We are here this afternoon, of course, to discuss the issue of how the United

States enters into such bilateral agreements for the protection of its personnel, and

what inducements it may provide to other countries to conclude such agreements.

In the framework legislation known as the ‘‘American Servicemembers Protection

Act’’ (APSA), the United States Congress has served notice on other countries that

we wish to have a firm and binding assurance that the accountability for the actions

of our personnel abroad will remain the shared responsibility of the United States

24

5See INS v. Chadha, 462 U.S. 919 (1983).

and the country visited, as appropriate. Americans should not be dispatched to an

international treaty-based court when we have not joined the treaty.

Many foreign partners have agreed to preserve this shared jurisdiction between

the two countries. After all, good relations with the United States still carry a high

mark. But some states have been pressured to overturn the traditional arrangement. The European Union has reportedly threatened to exclude candidate countries

from joining the European Union if they have entered into Article 98(2) agreements.

Other states may fail to complete Article 98(2) agreements because they have higher

priorities in their domestic politics and lawmaking.

Hence, the Congress has provided an incentive for reaching agreement, by stating

that a Rome treaty party will not be eligible for American military assistance if it

should refuse an Article 98 agreement. Section 2007 of ASPA provides for a potential cut-off or delay of programs for foreign military financing (FMF), international

military education and training (IMET), excess defense articles (EDA), and economic

support funds (ESF).

However, section 2007(b) also provides the President with clear authority to waive

any restriction on the extension of such aid, whenever the President determines

that a waiver is ‘‘important to the national interest of the United States.’’ Such

waivers have to be reported to the Congress after the fact.

Thus, if a foreign government that has been a good partner to the United States

is unable to secure conclusion of an Article 98 agreement because of the vagaries

of domestic politics, still there is a provision in the law for presidential waiver of

the requirement.

It is possible that in some circumstances, a President would wish to continue assistance under the FMF, IMET, EDA, or ESF programs, even though the country

in question is not willing at the time to complete an Article 98 agreement. The

American Servicemembers Protection Act permits the President to accommodate

such programs by the waiver provision of section 2007(b). As noted, the President

must find that it is ‘‘important to the national interest of the United States to waive

such prohibition.’’

There are a number of countries in Latin America and the Caribbean that have

not yet entered into Article 98 agreements with the United States. Nonsignatory

countries appear to include Barbados, Bolivia, Brazil, Costa Rica, Ecuador, Mexico,

Paraguay, Peru, St. Vincent and the Grenadines, Trinidad and Tobago, Uruguay,

and Venezuela. In addition, Argentina is not subject to aid conditions because it is

a classified under the Act as a ‘‘major non-NATO ally.’’

One can appreciate that the United States may share important interests with

these countries. We seek partners in our efforts to deter narcotics trafficking. We

wish to stabilize new democracies. We need to take joint action against any threats

involving international terrorism.

But there is nothing in the operative language of the APSA that discourages or

restricts the President of the United States in the use of waiver provisions to accommodate a situation of acute and compelling, or indeed, even an ‘‘important’’ interest.

The Congress may choose to provide the President with its views on circumstances that warrant accommodation of non-Article 98 states, through the exercise of the waiver power. But this involves communication and persuasion, and does

not require any change in the statute.

Any broad attempt to exempt particular states through legislation could present

the difficulties of fast-changing situations. Similar problems might attend any legislative attempt to exempt particular programs or program amounts. Certainly any

attempt to accommodate a particular country must conform to the rule against legislative vetoes and the requirements of the presentment clause of the Constitution,

as set forth by the United States Supreme Court in the Chadha case.5

In the attempt to negotiate with foreign states for appropriate protections for

Americans, the President may need all the tools that he has at his disposal, and

the Congress would surely support this effort. But the Congress has an important

role in its capacity to highlight and focus national attention upon those situations

where it believes that the President would advance America’s interests by the exercise of the ASPA waiver provisions.

One hopes, as well, that the member states of the Rome treaty will come to the

view that an international court has sufficient work to do through criminal referrals

by the United Nations Security Council and by consent of states of nationality. Any

maximalist extension of ICC jurisdiction, to sweep up the citizens of states that

have not joined the treaty, will test the limits of international law and undermine

the durability of the court.

25

Senator COLEMAN. Thank you very much, Dr. Wedgwood. Does

anyone—kind of step back. I take it from you, Dr. Wedgwood, in

your written testimony that you’re not looking at—from your perspective, it’s not about statute modifications, you’d try to work with

the national interest and then work on it in a more informal way

than actually changing the statute. I noticed when I talked about

changing the statute, I thought I saw a reaction from you when I

talked about that. Is that a fair reading of—in terms, at least the

first steps that you’d approach—that you’d try here? Not change

the statute?

Dr. WEDGWOOD. I’m just a normal incremental-type case lawyer,

so I’d like to try golden means, moderate middles. I’m not in a position to really, again, have a, you know, deeply-founded view of the

relative burden to Latin diplomacy. But certainly, if I was President, I’d take that onboard.

Senator COLEMAN. Well, let me just step back and get to that

issue of—I just want to make sure that there’s a common understanding that, in fact, this has been a burden on Latin policy. One

of the concerns that I have is when I look at the role that China

is playing, very active, very aggressive, it’s their right to do so. Certainly, increasing trade opportunities, I think, you know, China

sees Latin America as resource rich, and they have a huge desire

for resources. But I mean, from my perspective, I’d much rather

have folks trained by military officers with a democratic tradition,

clear civilian control, folks who we’re going to, you know, be working with down the road, then, you know, not having access to that.

And clearly, what we’re seeing is that being hindered. Is there any

question from any of you about the deleterious impacts it has on

United States-Latin relations, or is it just a matter of degree?

Mr. ISACSON. It’s a brick in the larger wall. I mean, there have

been several wedges driven between the United States and Latin

America lately in our relationship, but this is certainly one of them.

And the fact that, you know, I—we believe that every institution

between the United States and Latin America, military or civilian,

should be engaging pretty regularly. And if the United States is

unilaterally withdrawing at this time, it’s really poorly timed. In

dollar amounts, it doesn’t look like a lot right now, but in symbolism and in the number of interactions, whether military or civilian, it does have a strong impact, and we should be engaging more.

Senator COLEMAN. Dr. DeShazo and I’ll add to that. One of the

things that I’ve noticed, and we see it in the case particularly of

Venezuela, but the United States—having the United States as

kind of the whipping boy, having that as the force to kind of say

here’s the bad guy, it does have political impact, does apparently

move people, and do you see that concern? Do you just see this,

the—both the IMET and the ESF funding, whether it’s large dollars or not, do you think it’s serving the purpose of allowing the

United States to be the, you know, kind of the whipping boy, the

bad guy for some Latin leaders?

Ambassador DESHAZO. Mr. Chairman, I think that it does allow

that image to be strengthened as the United States is seen as taking some sort of unilateral action to sanction countries. The effects

of IMET are both short- and long-term. Every year that goes by

without IMET is another step in the direction of alienating the

26

Latin American military from the United States, which after a period of time, will have a generational effect and will affect our longterm possibilities 10–15 years down the road and not just our

short-term situation.

So, it has a difficult effect, both long- and short-term.

Senator COLEMAN. Should we be—and anyone can answer this,

or you all can answer, do you believe that we should—that the

Nethercutt amendment limiting Economic Support Funds, should

that be viewed in a different light than IMET, or are they all

lumped together?

Mr. ISACSON. I would put it in a different light. Mainly, there

was a more of a direct relationship with the military assistance

and the ASPA sanctions because the concern was about American

servicemembers. All of a sudden, with the Nethercutt provision,

you’ve crossed over to civilian economic aid and often, aid for the

very poorest, and it actually looks much more mean spirited in the

region when you’re cutting aid for the poor as opposed to aid for

the military.

Senator COLEMAN. Any other perspectives on that, Dr. DeShazo?

Ambassador DESHAZO. I think in terms of our national interests,

the effects of IMET and of Nethercutt are quite similar. They affect

different areas, but areas that are vitally important to us, and in

the long run, affect our security and our national interest.

Senator COLEMAN. Dr. Wedgwood, you want to weigh in on that

at all? Because there are those, by the way, who have said that we

have—these are fungible dollars here and if we cut them with ESF,

we can put them somewhere else. I’m just wondering whether the

folks on the ground see that, or whether this is kind of—is, you

know, just political fodder that which has some impact. Would you

want to respond?

Dr. WEDGWOOD. I take your point. We may, in fact, be doing

things for some of these countries through the World Bank and our

political influence there that counterbalance what we fail to do bilaterally, but I do take your point that one good kind of scaled

waiver or scaled penalty sends a mixed message.

Senator COLEMAN. Yeah, I’m wondering if can get an assessment

of some of the current situations. I mentioned in my opening statement late October, we had Mexico ratify the statute of Rome. Chile

is likely to follow, again, the leadership in Chile. I’d be interested

in your perspective as whether there’s any likelihood that any of

these countries will sign Article 98s in the near future, and is there

a—we don’t have the State Department. One of the questions I’d

be asking the State Department is what’s our strategy, what’s on

the negotiations strategy. I’m wondering if one, you could give

me—a two-part question here, a reflection on what you think will

happen with these countries in terms of Article 98s and what strategy and negotiations—what should the State Department be doing

in dealing with these countries with the likelihood that, you know,

Article 98s are not going to be concluded? Dr. Wedgwood.

Dr. WEDGWOOD. If I could just make a general comment on that,

I think at times we’ve lost the rhetorical battle. I mean, one thing

that’s always startled me about the ICC debate is that people

didn’t see what to me was plain as day, which is that third-party

coverage under the ICC potentially reversed the utterly traditional

27

architecture for troops deployed in peacetime, whether it’s NATO

standing, Status of Forces Agreements—model NATO SOFA agreement—or the model U.N. SOFA agreement. It’s the sending country—the sending country that always is the one that has at least

primary responsibility for the disciplining or investigation and trial

of its own troops. So, when ICC supporters have taken it for granted that, gee, the country of the place of deployment is the one that

ought to have the right to delegate its authority to a new international body, that just seemed to me astonishingly oblivious to the

long-standing arrangement.

Senator COLEMAN. I appreciate, by the way——

Dr. WEDGWOOD. Yes.

Senator COLEMAN [continuing]. That point being stressed. I think

we sometimes forget that in this discussion. But again, to the question, if you’d give me—I’d love some insight on where you—what

you think happens with Mexico. I mean, these are critical allies,

and they—a NAFTA partner and probably—and the paradigm of

success and by the way, the model we use in terms of trade agreements in Latin America, Chile, two key partners in the region.

Some of the strong—Chile being one of the strongest governments

and economies in the area. I’m interested in your perspective of

how this plays out and whether it has any impact on United

States-Chile relations and United States-Mexico relations.

Dr. WEDGWOOD. If I could just add one more comment, I think

some of this may get better over time. And again, third-party coverage was just the sine qua non at Rome itself. Now, as the ICC

has become more engaged, I think even the anti-98 forces have

quieted to some degree. There are ways now in which the court

knows that it needs us, both for abstentions at the security council

as we did on the Darfur Resolution. One thing that I think has not

been looked at is section 2003C in the American Servicemembers’

Protection Act. We’re allowed to offer—the President can offer assistance to the court with a waiver in its investigations and prosecutions once there’s a named individual, but not earlier. So, that

could present some practical difficulties for the court. They might

want some American logistical support or intelligence sharing,

whatever, before they really know who their single targets are in

Darfur or elsewhere. So, I can imagine the President enjoying and

preferring a broader waiver authority, which in turn would bring

home the message to the court that they need us, at least as a

friendly neighbor. I worry about the role of Europe. I mean, I think

some of the countries in Latin America that have very close ties to

Europe will feel the drum beating because the European Union has

taken such a harsh stand toward this, and I would be doing a lot

of diplomacy in Europe to mitigate that.

Senator COLEMAN. Mr. Isacson.

Mr. ISACSON. I can’t give you any reason for optimism that there

will be Article 98 agreements with either Mexico or Chile. And

Mexico, in February, the spokesman for the presidency said whether or not there will be a reduction in United States aid is not relevant to us—what is relevant is that our convictions and principles

mean something. That sounds pretty clear. And right now, the

frontrunner in the Mexican elections, of course, Manuel Lopez

Obrador is unlikely to sign one either. In Chile, the new governVerDate 11-MAY-2000 13:03 Mar 15, 2007 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 H:\DOCS\80081.SEN mich PsN: mich
28

ment, which is still dominated by the socialist-led coalition would

be probably unlikely to ratify an Article 98 agreement. I know less

about it, but we do know Mexico this year was supposed to get

FMF for the first time. It’s not going to. Chile, usually one of the

highest numbers of United States trainees, one of the largest IMET

recipients, one of the largest feeders of schools to the Western

Hemisphere Institute for Security Cooperation would suffer a deep,

deep cut in its military assistance.

Senator COLEMAN. Ambassador DeShazo.

Ambassador DESHAZO. I don’t think that—well, it’s hard to say

if there are other possibilities for other Article 98 agreements to be

signed in the region. Right now, that doesn’t look particularly

promising. And the case of Mexico is an interesting one because the

Mexican military had been traditionally quite hermetic, and the

IMET had been a major resource used to extend contact with—between the United States and Mexican military that had not been

there before. There has been a sort of a destigmatization of military-to-military contact in Mexico that’s been very helpful. The

Mexican military would have a pivotal role if there were a major

security threat in-country that would affect United States security

at the same time. And so, the loss of IMET really hurts. On the

ESF side, support for judicial reform, anti-corruption measures,

other such things that as well affect border security and other matters, if they were to benefit the Mexican government, will be curtailed, and that’s also a matter of concern.

Senator COLEMAN. If I can, Ambassador, you’ve served embassies

in Medellin and Columbia and in Brazil and Chile—I think with

Panama and Venezuela. I just—perhaps personal reflections on

your experiences that relate to IMET Article 98 agreements, can

you—I’m very interested. Could I have your view from having been

on the ground there?

Ambassador DESHAZO. Thank you, Mr. Chairman. I think IMET

has played a role, an important role, in helping promote the transition of democracy. There are many factors involved in the United

States relations with Latin America, but I think that the—that

IMET did play a role in helping strengthen the concept of civilian

control over the military that’s been very successful in Latin America. It’s very interesting that Bolivia, which has not had a military

government since 1982, which is an unusual matter in Bolivian

history, went through a period of great civil upheaval in 2003–

2004–2005, and the military played a traditional, nonpolitical role,

stayed out of the political situation. And again, I think the very

strong contact between the United States and Bolivian military

through IMET helped play a role in reinforcing that model. These

are the kinds of long-term benefits that accrue from a program

such as IMET and that also accrue on the ESF side from strengthening democracy and governance.

Senator COLEMAN. And it’s—you’ve kind of summarized—I mean,

one of the forces that are driving me in terms of having this hearing. What I’m looking for, then, are ways to recognize the goal of

what ASPA is trying to do, but without suffering the negative consequences. I mean, my—I think it’s very fair to say that though the

dollars may not be great, the impact, long-term impact as well as

some short-term impact, but clearly, long-term is pretty serious.

29

And we—as policymakers, we have to figure out a way to again understand the legitimate policy concerns, understanding, you know,

what third-party coverage means and, you know, what the history

was. So, there are legitimate reasons for concern, but is there a

way to reflect those concerns? Are there other aspects of our relationship with Chile and with Bolivia and with Mexico that can be

impacted in the absence of Article 98 agreements without cutting

off IMET? Is that the only path? But anyone can respond to that.

I mentioned in my opening statement, I talked about there are

some positive things that we can do, and I do think we have tools

available in spite of some of the budget issues that we’re facing,

tools available through things like Millennium Challenge accounts

in some areas, tools available in terms of working with the Interdevelopment Bank and just kind of a number of vehicles that say

hey, there is some pain to be suffered if you’re not going to do this

because it is important to us, but this strategic—and I think it was

a very good example, Ambassador, when you talked about Bolivia

and the armed forces in spite of great upheaval, standing on the

sidelines on this, very important.

And sometimes, we can’t underestimate the impact of, I think,

these relationships and how they then will have some impact on

the, you know, events today. Can we talk about other—we talked

a little bit how some have already, but I—one, if there are other

positive things that could be done, or if there are other ways in

which we can impact a relationship, express the concern about Article 98s, but not get rid of the IMET relationships. Anybody want

to respond to that? Mr. Isacson and just kind of go across.

Mr. ISACSON. One trial balloon worth floating here is distinguish

between IMET and expanded IMET. About 25 or 30 percent of

IMET is in this expanded category, which is for nonlethal courses,

courses in things like human rights, military and democracy, defense resource management. It’s not going off and learning how to

shoot better or how to do ambushes or small-unit tactics and things

like that, most of it’s classroom training, but it would fulfill the

goals of maintaining contact with key officers. But because you

don’t get to go out and do the fun and lethal stuff, you still sent

the message to those militaries—or those countries—that it’s not a

full partnership because of the ASPA.

Senator COLEMAN. Ambassador DeShazo, any thoughts about

other approaches that we take—and I threw out this concept of,

you know, positive—there’s a positive—any—again, just a concept.

I’m looking for ideas here. I’m searching for things that I can put

on the table for my colleagues.

Ambassador DESHAZO. I’m not sure to what extent the sanctions

make much of a difference to some of the countries. That’s part of

the problem that the pain really—the effect, I would say, is often

more on us than it is—than it may be on them in terms of their

interests, although they certainly have a strong interest in maintaining good military-to-military relations and ESF. There may be

other mechanisms.

I’m not by any means a lawyer nor expert in this. I’ve seen many

individual exercises carried out on the basis of exchanges of diplomatic notes, relatively low-key and quiet mechanisms to protect

American servicemembers while they are participating in such

30

events or for longer-term events. Again, perhaps status of forces,

but I’m not sure what in the end all of the ramifications would be.

Granting so-called A&T, Administrative and Technical, status to

the military gives them the kind of immunities they need in-country, something that could be quieter, more flexible and that the

countries in the region would be, I think, open to giving us.

Senator COLEMAN. And then, Dr. Wedgwood, and I thought I

heard you say that you didn’t think using the status of forces

agreements—was that in your testimony, that that would, you

know, provide—that would be helpful here?

Dr. WEDGWOOD. You get two arguments from ICC folks. One is

that what’s wrong with our Article 98 agreements is they’re too

broad because they include more than current serving soldiers.

They include former officials. They include U.S. nationals. They

would include contractors, and any U.S. national is covered in the

standard-form Article 98 agreement.

So, one argument from ICC advocates is just they’re too broad,

but that perhaps a standard SOFA would do. Other arguments are

more radical, though, and say that this would shelter only existing

freeze-frame Article 98 agreements, but no new SOFA agreements,

no modified SOFAs. So, it’s a moving target.

The suggestion I also wanted to throw out was a little bit like

the Ambassador’s. There’s a category in the law called unilateral

declarations. It’s taught as recherche stuff in an international law

course, but there is a—when the French said they were no longer

going to test in the South Pacific, the ICJ, the International Court

of Justice, said hey, that’s a unilateral declaration binding on

France. So, in fact, if some of this is about honor and who’s on top,

and worries about north-south relationships, some countries, I just

venture to suppose, might be willing to, in their own voice, make

a solemn unilateral declaration that they will not turn over the nationals of any of their neighbors, including us, to any other organ

or body.

And if we can just deracinate this and not make this a United

States versus Latin American confrontation, I think one could perhaps get some of the same legal effect and yet not have to plow

one’s way through the problems of national egos.

Senator COLEMAN. And then, you know, the question that would

be raised is then who are we doing this for. If the sanctions

aren’t—if the impact of the sanctions aren’t that horrendous on the

country—like they’ll do without, and they’ll do without IMET, we’re

the ones who may be hurt. I mean, part of this, part of the message, is for me and my colleagues and for the American public and

our folks that we’re saying this is for us, that we need to have

these guarantees, we need to—we’re not going to—and I understand that we’re not going to put our fighting—our forces in some

part of legal harm’s way without some kind of strong guarantees.

And so, there would need to be something, need to be something

in a question of whether something like unilateral declaration

would work. I have two other areas of inquiry, just a—if I can with

you, Mr. Isacson, I saw in a recent comment you had in the New

York Times about Bolivia and cutting the aid—military aid would

antagonize the Bolivian military. I may be wandering a little afield

here, but do you—are you—is it your sense that the consequence

31

of that may be a strengthening of Venezuelan-Bolivian military?

What do you see as the offshoot of that?

Mr. ISACSON. It could go one of two ways. I mean, Bolivia, as

Ambassador DeShazo mentioned, is a country that’s had a lot of

military coups. It continues to have a very independent military

and also a very factionalized military, which is why it could go either way. You’ve got a left-wing elected President. The right-wing

factions in the military, which may be feeling quite resentful of

having this President here, will be provoked, indeed, by a cutoff of

relations with the United States. If they can send less students to

the former school of the Americas and other things, they will—that

will be a grievance.

The left sectors of the military may see this as an opportunity

to do—move more in a Hugo Chavez sort of direction. So, you could

see both, and it depends on which factions end up on top.

Senator COLEMAN. If I can perhaps end on this, I—the optimist

that I am, and I talked about some positives, but even perhaps

going a little beyond IMET, there is concern today as we look at

the political situation in Latin America and we look at the elections. In Bolivia, we look at the continuing strife we have with

Chavez, with some of the concerns that that ruler has faced with

corruption. People are kind of looking out, looking at Central America, what’s happened in Nicaragua, some, you know, great concerns

there. This thing about things that can strengthen the United

States-Latin relationship, I mean, IMET should be a tool that is a

positive, something that—it’s building a connection, it’s strengthening the relationship, it’s serving, as the Ambassador has talked

about, a long-term United States security interest. If I’d give you

the opportunity, if there are two or three things that we could be

doing in the region, and with IMET being one of them, if there are

some other things that you think, as policymakers, we should be

looking at to strengthen the image of America, the reality of us as

being a strong partner in the region, I’d love to hear that before

we’ve concluded this hearing if you’d want to venture forth. Mr.

Isacson.

Mr. ISACSON. Well, I think the first thing would be simply to restore the cuts that the 2007 budget request anticipates in core economic aid programs for Latin America. They’re deep, and they are

going to be felt throughout the region. That’s one. The second was

if you restore IMET, fine, but let’s—if we’re restoring economic aid,

some of that should pay for—why is there no IMET for Latin

American judges, for Latin American legislators, for Latin American investigative journalists, mayors, governors. It would be great

to have an overall effort to try to improve governance at a time

when people are really losing confidence in governance.

Senator COLEMAN. An IMET for rule of law?

Mr. ISACSON. Absolutely.

Senator COLEMAN. Ambassador.

Ambassador DESHAZO. I would second that idea. I think that

what is most needed in Latin America is a second generation of

structural reforms to make democracy work better and to help

economies grow in a sustained way that results in job creation and

poverty reduction, which is what the people of the Americas are

crying out for.

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And what we need is more ESF—and more flexibility for our policymakers to be able to support efforts, not just by ourselves, but

by others in the region to bring about that kind of structural reform. We have to be seen as a country that is really concerned

about poverty, about empowering people in the hemisphere to be

able to help themselves to improve their lives.

I would also add that we need to greatly improve our public diplomacy efforts in the hemisphere, which have suffered cuts for

many years and now put us at a disadvantage in getting out our

message to the people of the Americas.

Senator COLEMAN. Dr. Wedgwood, you want to venture into this

broader policy discussion?

Dr. WEDGWOOD. Beyond my pay scale, but I would take the point

that people in the administration are well aware of the problems

of the rising ambitions of China. I think DOD spends some part of

its time thinking about that, and the new QDR shows that. So, the

problem of China—and the radicalism of some regimes now, is not

lost on people. Forgive me, I’m a hectoring type by nature, but beware, unraveling the Article 98 agreements that already exist. I

mean, if you put it in terms of traditional sovereignty, I think most

countries would agree that, in general, treaty law should not bind

third parties, that abstract proposition is not one that is lost on

other regimes.

I think with some Latin countries, you can salute their own considerable heroism in confronting their own pasts, whether it’s Chile

or it’s Argentina, which proves again that the ICC is not the only

modality for having accountability for war crimes. But clearly, the

object of the exercise is to get the kind of coverage that we need

for former and current soldiers, diplomats, officials, light cover intelligence folks who otherwise are not going to have a SOFA, get

that kind of really secure coverage. And at the same time, do it in

a way that doesn’t offend the pride of our interlocutors. Thank you.

Senator COLEMAN. This panel has been very helpful. I will make

sure that your entire statements will be entered into the record,

and I will continue to work on this issue, and you certainly have

provided some very excellent guidance, and I appreciate that. With

that, this hearing is now adjourned.

[Whereupon, at 3:30 p.m., the hearing was adjourned.]

ADDITIONAL PREPARED STATEMENT AND QUESTIONS AND ANSWERS

SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. MEL MARTINEZ, U.S. SENATOR FROM FLORIDA

I appreciate Chairman Norm Coleman’s initiative calling this hearing on this important topic. This is a fine panel of respected specialists and the testimony will certainly inform this debate.

I do think that at some point we will need to hear from the executive branch. Senior leaders from DOD and State should be called to testify on the impact of the

ASPA in Latin America and the Caribbean.

I am generally concerned that we are not investing enough in Foreign Military

Financing (FMF) and International Military Education and Training (IMET) to

begin with. These relatively low-cost programs have a big impact for several of our

allies in Latin America and the Caribbean, particularly those facing tough economic

and social challenges.

I believe that we need to explore ways to maintain—or in some important cases—

restart the flow of IMET money for selected countries that have not agreed to ArtiVerDate 11-MAY-2000 13:03 Mar 15, 2007 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 H:\DOCS\80081.SEN mich PsN: mich
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cle 98 provisions of the ICC Treaty. There are currently 12 countries that are affected and we can expect that a 13th nation—Chile—will be added shortly when

they ratify the ICC Treaty (expected this year).

In my talks with U.S. Ambassadors in the region as well as the Southern Command Regional Commander in Miami, GEN Banz Craddock—I have been persuaded

that restricting IMET (the way American Service Members Protection Act does) is

an unintended consequence and is now becoming counterproductive to U.S. policy.

At the outset—I want to make it clear that I fully support the U.S. position on

the ICC and the intent of the American Service Members Protection Act. I do not

think that relaxing this discrete prohibition of IMET will have any appreciable impact on either our ICC policy or the APSA.

My concern for now is only with the restriction on IMET. I am not yet ready to

look at lifting prohibitions on FMF or Excess Defense Article (EDA) transfers.

When we restrict IMET, we leave an engagement vacuum that other nations will

likely fill. IMET allows the U.S. military to bring foreign military and civilian officials to the United States and not only teach technical skills—but perhaps just as

importantly—see U.S. democracy in action. This restriction on IMET weakens our

ability to offer training to allies that otherwise would not be able to afford the training, and limits our ability to build military-to-military relationships. IMET is an important tool and our Ambassadors in the region should have the full power of the

IMET program.

Besides the technical and military training they get—they also get professional

development and leadership training, instruction in defense planning and resource

management. All courses taught at our Spanish language school, the Western Hemisphere Institute for Security Cooperation (WHINSEC), include human rights training. Each IMET program is tailored annually and can be shaped, limited, or stopped

altogether virtually immediately—at the discretion of the U.S. Chief of Mission.

I do not think we can afford to stop the limited engagement that IMET allows—

at a time when U.S. commitment to the region is being challenged. Having students

from Bolivia, Peru, Brazil, Mexico, and even Venezuela studying next to our officers

helps build cooperation and helps advance United States interests. Many of these

students return to visit the United States as Chiefs of Defense 10 years later.

Under ASPA, the President also has several waiver authorities, including those

under section 2007(b) of the ASPA. To date, as I understand it—the President has

not yet exercised this national interest waiver authority for ICC signatory counties

that are not Article 98 partners.

RESPONSES OF ADAM ISACSON TO QUESTIONS SUBMITTED BY SENATOR MEL MARTINEZ

Question. Recognizing that the United States now has 100 Article 98 agreements

worldwide to date, it appears that the outlook for our ability to get additional Article 98 agreements is not good. Is there a realistic prospect that additional Article

98 agreements might be possible in Latin America or the Caribbean in the foreseeable future? Do you think it is likely that the United States will be able to get an

Article 98 agreement with Brazil, Mexico, or Chile (Chile is expected to ratify ICC

Treaty this year)?

Answer. A general rule of thumb is that the larger the country, the less painful

the U.S. sanctions, and the less likely the signing of an Article 98 agreement will

be.

In 2003, the year before the sanctions were imposed, affected military aid to Brazil totaled only $480,000 (about 1/27900th of Brazil’s defense expenditure). In

2005, the year before Mexico’s cutoff, affected aid to that country totaled $1.25 million (about 1/3200th of Mexico’s defense expenditure). In 2006, possibly affected aid

to Chile is to total $1.24 million (about 1/2016th of Chile’s defense expenditure).

Even if Felipe Calderon, a strongly pro-United States candidate, wins Mexico’s

July 2006 elections, I see little possibility that Mexico or any of the other larger

countries in the region will sign Article 98 agreements. The most likely signers, if

any, will be small Caribbean states like Barbados, St. Vincent, and the Grenadines,

or possibly Trinidad and Tobago.

Question. I would like to ask each of the witnesses about the President’s waiver

authority. Is the President’s waiver authority under section 2007(b) a viable path

to delinking IMET from Article 98 prohibitions? Should the executive branch consider using the President’s ASPA authority to allow IMET money for countries that

are ICC signatories—but do not have Article 98 agreements?

Answer. If a legislative fix to the section 2007 sanctions proves to be impossible,

the executive branch must take greater advantage of the flexibility afforded it with

the waiver authority in section 2007(b). We strongly recommend using the waiver

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authority to free up not just IMET but Economic Support Funds currently frozen

by the so-called Nethercutt provision.

Question. I recognize that some countries that accepted some domestic political

and diplomatic risk by entering into Article 98 agreements with the United States.

Could you assess the possible reaction of those nations currently in Article 98 agreements with the United States if the President approved waivers for selected countries?

Answer. Some of those nations might protest, though relations would not be fundamentally affected. Their outrage could be calmed by (a) making the waiver subject

to only one or two programs, such as IMET and ESF, while leaving others, like FMF

and EDA, frozen; (b) reminding these countries that non-signatory countries waivers

are year-to-year and not permanent; and/or (c) providing ‘‘positive reinforcement’’ to

countries that do sign Article 98 agreements, such as additional economic assistance

or small trade concessions.

Question. Do you agree that the sanctions that cut the flow of IMET money can

create a vacuum that other nations might fill and limit our contact?

Answer. This is a distinct possibility, especially for small countries whose militaries cannot provide a full range of training on their own.

I note, though, that United States training with these countries does continue to

this day, through a host of other programs. These include State Department International Narcotics Control funds; Defense Department counter-drug activities funds

(often known as ‘‘section 1004’’); Nonproliferation, Antiterrorism, Demining and Related Activities (NADR); the Defense Department’s Counter-Terrorism Fellowship

Program (CTFP); Joint Combined Exchange Training (JCET) deployments; bilateral

and multilateral military exercises; International Criminal Investigations Training

Assistance Program (ICITAP); and attendance at the Defense Department’s regional

security-studies institutions.

Question. Should Congress consider a legislative fix to delink IMET?

Answer. A legislative fix is necessary to delink IMET as well as Economic Support

Funds. This would be the cleanest and most effective way to undo the damage that

the ASPA sanctions are doing to the United States’ standing in Latin America. The

effort to punish countries that don’t sign Article 98 agreements has been perceived,

including in the region’s mainstream media, as bullying or arm-twisting, the opposite of a ‘‘good neighbor’’ policy.

RESPONSES OF DR. PETER DESHAZO TO QUESTIONS SUBMITTED BY SENATOR MEL

MARTINEZ

Question. Is there a realistic prospect that additional Article 98 agreements might

be possible in Latin America or the Caribbean in the foreseeable future?

Answer. It may be possible, but probably unlikely, in the case of two smaller countries in the region.

Question. Will the United States get an Article 98 agreement with Brazil, Mexico

or Chile?

Answer. No.

Question. Chile is expected to ratify ICC Treaty this year?

Answer. Yes.

Question. Is the President’s waiver authority under section 2007(b) a viable path

to delinking IMET from Article 98 prohibitions? Should the Executive Branch consider using the President’s ASPA authority to allow IMET money for countries that

are ICC signatories—but do not have Article 98 agreements?

Answer. A Presidential waiver is a viable mechanism for overcoming the negative

effects of IMET sanctions. It could be combined with an agreement by countries receiving the waiver to work with the USG to grant administrative and technical

(A&T) status to U.S. servicemembers while in country or through some other mechanism to provide protection.

Question. Could you assess the possible reaction of those nations currently in Article 98 agreements with the United States if the President approved waivers for selected countries?

Answer. While there may be a negative reaction from some countries already signing Article 98 agreements, the U.S. Government should make its decision based on

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overall U.S. national interest, which is negatively affected by loss of IMET and Economic Support Funds (ESF) to key countries in the region.

Question. Do you agree that the sanctions that cut the flow of IMET money can

create a vacuum that other nations might fill and limit our contact?

Answer. Yes. If training opportunities with the United States are restricted because of ASPA sanctions, affected countries in the region may well look elsewhere

for military training, including to countries that do not share U.S. views on democracy or on key security matters.

Question. Should Congress consider a legislative fix to delink IMET?

Answer. Congress should examine whatever potential means it has at its disposal

to alleviate the negative consequences of cutting off IMET, ESF, and other key assistance programs as a result of ASPA and the Nethercutt amendment.

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