[Senate Hearing 109-812]
[From the U.S. Government Publishing Office]
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
__________
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COMMITTEE ON FOREIGN RELATIONS
RICHARD G. LUGAR, Indiana, Chairman
CHUCK HAGEL, Nebraska JOSEPH R. BIDEN, Jr., Delaware
LINCOLN CHAFEE, Rhode Island PAUL S. SARBANES, Maryland
GEORGE ALLEN, Virginia CHRISTOPHER J. DODD, Connecticut
NORM COLEMAN, Minnesota JOHN F. KERRY, Massachusetts
GEORGE V. VOINOVICH, Ohio RUSSELL D. FEINGOLD, Wisconsin
LAMAR ALEXANDER, Tennessee BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire BILL NELSON, Florida
LISA MURKOWSKI, Alaska BARACK OBAMA, Illinois
MEL MARTINEZ, Florida
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 CHRISTOPHER J. DODD, Connecticut
GEORGE ALLEN, Virginia JOHN F. KERRY, Massachusetts
MEL MARTINEZ, Florida BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire BILL NELSON, Florida
(ii)
C O N T E N T S
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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)
THE IMPACT ON LATIN AMERICA OF THE AMERICAN SERVICEMEMBERS' PROTECTION
ACT
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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.
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 military-to-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
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 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 America 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
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:]
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
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 military-to-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 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 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
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 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.
``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 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.
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 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, perhaps 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 ``double 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 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).
---------------------------------------------------------------------------
\1\ See generally, Dieter Fleck, ed., The Handbook of the Law of
Visiting Forces, Oxford University Press 2001.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\2\ See 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.'')
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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.
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\3\ See Security Council resolution 1593, March 31, 2005
(resolution concerning Darfur).
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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.
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.
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\4\ See, 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.
---------------------------------------------------------------------------
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 non-military 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 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\
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\5\ See INS v. Chadha, 462 U.S. 919 (1983).
---------------------------------------------------------------------------
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.
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 Latin American military from the
United States, which after a period of time, will have a
generational effect and will affect our long-term 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 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 government, 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. 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 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 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.
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 Article 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 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 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.