[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

                               __________

       Printed for the use of the Committee on Foreign Relations


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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

                              ----------                              
                                                                   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

                              ----------                              


                        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.'')
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \3\ See Security Council resolution 1593, March 31, 2005 
(resolution concerning Darfur).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.


                                  
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