U.S. Allows Continuing Military Aid to Some ICC Signatories

(Bush memorandum; Boucher briefing excerpt) (3180)

President Bush has issued waivers allowing continuing military aid to 22
countries that signed the Rome Statute establishing the International
Criminal Court (ICC), and subsequently signed Article 98 agreements
exempting U.S. personnel from war crimes prosecution.

Bush released a memorandum for the secretary of state on July 1 waiving the
prohibition on military assistance to ICC signatories that is called for in
the American Service Members' Protection Act of 2002.

White House spokesman Ari Fleischer said Bush wants to ensure through the
Article 98 agreements that American military personnel stationed abroad
would not be subject to being put on trial before an entity that the United
States does not recognize.

At the State Department, spokesman Richard Boucher said some of the waivers
signed by the president are for countries that have signed such agreements
but have not yet ratified them.

"There is a four-month waiver for countries who signed before May 1 and
haven't yet ratified, a six-month waiver for countries who signed after May
1 and haven't yet ratified," he said. "In many cases, ratification means
working things through parliament, which takes some time in some places."

Boucher said there are some 35 countries that have not signed agreements
and therefore do not qualify for a waiver. Those countries subject to
restrictions, he added, "are recipients of U.S. military assistance, they
are parties to the ICC, and they have not been exempted as a NATO member or
major non-NATO ally, or signed an Article 98 agreement."

Following are the text of Bush's memorandum and an excerpt of Boucher's
press briefing:

(begin Bush text)

THE WHITE HOUSE Office of the Press Secretary

July 1, 2003

Presidential Determination No. 2003-27

MEMORANDUM FOR THE SECRETARY OF STATE

SUBJECT: Waiving Prohibition on United States Military Assistance to
Parties to the Rome Statute Establishing the International Criminal Court

Consistent with the authority vested in me by section 2007 of the American
Service members Protection Act of 2002, title II of Public Law 107-206 (22
U.S.C. 7421 et seq.), I hereby determine that:

(1) Gabon, the Gambia, Mongolia, Senegal, Sierra Leone, and Tajikistan have
each entered into an agreement with the United States pursuant to Article
98 of the Rome Statute preventing the International Criminal Court from
proceeding against U.S. personnel present in such countries and waive the
prohibition of section 2007(a) of the American Service members Protection
Act with respect to these countries for as long as such agreement remains
in force;

(2) it is important to the national interest of the United States to waive,
until November 1, 2003, the prohibition of section 2007(a) with respect to
Afghanistan, Djibouti, Democratic Republic of Congo, East Timor, Ghana,
Honduras, and Romania, and waive that prohibition with respect to these
countries until that date; and

(3) it is important to the national interest of the United States to waive,
until January 1, 2004, the prohibition of section 2007(a) with respect to
Albania, Bolivia, Bosnia-Herzegovina, Botswana, Former Yugoslav Republic of
Macedonia, Mauritius, Nigeria, Panama, and Uganda, and waive that
prohibition with respect to these countries until that date.

You are authorized and directed to report this determination to the
Congress, and to arrange for its publication in the Federal Register.

GEORGE W. BUSH

(end Bush text)

(begin Boucher excerpt)

QUESTION: Is the U.S. going to suspend the military aid to Colombia due to
the fact that they didn't sign the immunity?

MR. BOUCHER: The President made his decisions yesterday, signed the package
for transmission to Capitol Hill, on the American Servicemembers'
Protection Act, and that includes some waivers for countries that have
signed Article 98 agreements with us but not ratified them. There is a
four-month waiver for countries who signed before May 1st and haven't yet
ratified, a six-month waiver for countries who signed after May 1st and
haven't yet ratified. In many cases, ratification means working things
through parliament, which takes some time in some places.

There are other countries, some 35 of them, that have not signed Article 98
agreements and therefore don't qualify for a waiver, and so Colombia is one
of those countries. But as I think I said yesterday, this is an ongoing
issue that we're going to have to deal with, and we're going to keep
pressing countries to sign Article 98 agreements with us.

Much of our assistance to Colombia, the great bulk of our assistance to
Colombia, is, indeed, counter-drug money and therefore not affected. It's
not military assistance, among the military assistance programs that are
affected by this law.

In addition, I think of some over a hundred million, a hundred million or
more, in military financing that we have for Colombia, I think all but
about 5 million has been expended. So there is probably about 5 million of
our assistance to Colombia that's been suspended because of the Act right now.

But as we proceed with this, we'll look at individual programs, as well,
and decide whether they need waivers. But our hope is to continue to work
with governments to secure and ratify Article 98 agreements that protect
American servicemembers from arbitrary or political prosecution by the
International Court.

Matt.

QUESTION: The 35 countries, you have a list of those that I presume you'll
be making available to us?

MR. BOUCHER: It's in the package. I don't have it here right now. I'll see
if I can get that for you.

QUESTION: And is it exactly 35? You said "some 35." Is it exactly?

MR. BOUCHER: I counted, I got 36. But three other counted and got 35, so --

QUESTION: When I counted, I got 31. But that was, of course, because we
didn't have this package that you guys obviously did. And we had to
actually go through and compare the number of countries getting -- the
exact countries getting U.S. military assistance with the number of
countries who have signed Article 98 agreements, and then the number of
countries who have actually ratified the Rome Treaty, which was extremely
time-consuming, I'm sure, as you can imagine.

MR. BOUCHER: I can't give you the package before the President signs it.
Now that the President has signed it and it has been transmitted to
Congress, I will be glad to try to provide it to you. But I'm not going to
give it to you before the Congress gets it.

QUESTION: All right, okay. That's fine.

MR. BOUCHER: Okay. We have calculated that a total of 35 states would be
subject to these restrictions; that is, there are recipients of U.S.
military assistance, they are parties to the International Criminal Court,
and they have not been exempted as a NATO member or major non-NATO ally, or
signed an Article 98 agreement.

QUESTION: Now, what about countries that do receive U.S. assistance, are
parties that had signed and ratified the Rome Treaty, and have signed
Article 98 agreements and still don't get an exemption? I mean, what does
poor old Cambodia have to do here to get back in the good graces of the
United States?

MR. BOUCHER: Cambodia doesn't have any military assistance from us this year.

QUESTION: Yes, it does. Well, it was requested. It was in the budget.

MR. BOUCHER: No, it was requested. And if you read the budget documents
carefully, you'll see that it said that we would provide this program if
the political conditions allowed and other restrictions were removed.
Because that situation hasn't occurred, they have -- there is no money in a
program this year.

QUESTION: Okay, but --

MR. BOUCHER: There is actual program of military assistance to Cambodia
this year, is the bottom line, so it doesn't need a waiver.

QUESTION: And is that -- can you say that that's the only country that
meets all of the criteria that has not received a waiver?

MR. BOUCHER: It doesn't meet all of the criteria because there is no
military assistance program.

QUESTION: All right. Can you say it's the only country that has signed an
Article 98 agreement that has also signed and ratified the ICC that --

MR. BOUCHER: I don't know how many countries there are who are members of
the court and have signed Article 98 agreements, but don't have a military
assistance program from the United States. That may -- I don't -- I just
didn't try to calculate that.

QUESTION: Richard.

MR. BOUCHER: Nicholas.

QUESTION: Richard, the six countries that are supposed to be joining NATO
next year, you said yesterday that for this fiscal year there are no
consequences. Right?

MR. BOUCHER: No, I didn't say that.

QUESTION: No, I mean, the programs that have already been started, that
they'll go on before today. Right?

MR. BOUCHER: I said that money that has been spent, money that's been
allocated, remains allocated. Money that has not been allocated is not
going to be allocated. So it depends on the individual country and how much
of the money has been expended. We were asked a moment ago about Colombia,
and out of $100 million or more in military financing for Colombia, there's
$5 million left this year that's not been allocated. That money is caught.

Each government, each country will be, may be slightly different. There may
be different percentages or amounts that have been spent already and
different amounts left that have not.

QUESTION: Well, my question was, if these six countries, as it is expected,
become NATO members next year, they will be automatically getting the
waiver. Is that correct?

MR. BOUCHER: Yes.

QUESTION: So, basically, the impact on them will be minimal. Is that safe to --

MR. BOUCHER: Again, it depends on the country. There may be places where,
you know, most of the money has been spent. There may be places where most
of the money has not been spent.

George.

QUESTION: I walked in a little late. Did you address the question of which
countries are being penalized?

MR. BOUCHER: I said there were 35 of them that are subject to some
restrictions under this Act, that the list was in the documents that have
been sent up to the Hill, and one of your colleagues asked me and I
promised I would try to get the -- make the documents available to you.

QUESTION: In that document it also explains how much money is affected here
for the rest of this fiscal year?

MR. BOUCHER: The -- no, it doesn't. But I will be glad to do that now.

QUESTION: Okay.

MR. BOUCHER: In terms of Fiscal Year 2003 dollar amounts in various
military programs subject to assistance -- subject to restrictions, in the
Foreign Military Financing program there's approximately $47 million that's
not been allocated and in the International Military Education and Training
program there's approximately $613,000.

I think we had larger numbers yesterday, but since those numbers were
compiled several countries have signed Article 98 agreements. So what
you'll find is these numbers are subject to change, hopefully in the
downward direction as we sign agreements.

QUESTION: Well, following up on -- I think what Nicholas is trying to ask
-- the NATO aspirants basically don't really have to do much of anything,
do they? I mean, they lose a little bit this year, but as long as they join
on schedule, they'll be given an automatic exemption, correct? Unless you
guys are going to make signing an Article 98 with them a requirement for
them to get into NATO, which you've always said in the past --

QUESTION: It's rati -- the Congress ratified already.

MR. BOUCHER: The Congress has ratified the members.

I think the point, the point of all this, is not the technicalities of it.
It's the effort that's underway by the United States to secure these
agreements. It's not a matter of today, tomorrow, this program, that
program. This is merely one of the tools that Congress has given us, has
asked us to implement, in order to secure these kinds of agreements.

It remains an important part of national policy. It's something -- the
Article 98 agreements, I would say, is something that comes up in virtually
every meeting the Secretary has with countries that it's relevant for. And
in not just the last week or two or the last month or two, but consistently
for months and months and months we have made this an issue. It's an
important issue to the United States, will continue to be an important issue.

So as we work with other governments, whether they're NATO aspirants or
friends or coalition friends, people we've worked with in Iraq and
Afghanistan, it's an issue that we consistently raise and it's an area
where we are going to implement the law, and that's what we're doing.

QUESTION: Since the EU-U.S. summit that you guys had last week, which this
was the former EU president said this was an issue on which you had agreed
to disagree, have the Europeans changed their tune at all or are they still
being obstructionist?

MR. BOUCHER: I think you'd have to ask them if they've changed their tune.
I mean, from our point of view, we have made very, very clear that we're
not attempting to undermine the Rome statute, we're not attempting to
infringe upon the rights of countries that have decided to sign and
implement the treaty involving the International Criminal Court; and we ask
that our right and our decision, our sovereignty in deciding not to be a
party to that treaty, is similarly respected. We think it's important that
we have the ability to choose not to become a party and that we not be
subject to jurisdiction by a treaty for which we have not become a party.

QUESTION: Yeah, that's -- I know that. But --

MR. BOUCHER: I know. But have they changed their -- have they begun to
agree with us on that? I don't know that there is any particular progress
to report at this point. We have had discussions, legal discussions in
particular, in the past with the European Union. We've had a lot of
discussions with individual governments of European Union members or
countries that are seeking to get in. But at this point I don't think
they've changed their tune that I have seen, but you can ask them if they have.

QUESTION: Yes, I'm still confused about Colombia, first of all, because,
you know, it receives lots of help from the United States. So you're saying
that for this fiscal year, still, I mean, there are $5 million that they
won't receive that? What's going to happen for next year? Then the
Colombian president is saying that they have already a treaty of 1962 which
is kind of the same thing that the United States wants, so that that should
work. Does that work?

MR. BOUCHER: It's an issue that we have been discussing with the Government
of Colombia. The Secretary has talked to Foreign Minister Barco about it
very recently -- oh, in Santiago, Chile, which was not even a month ago
now. So it's something that we have discussed repeatedly and will continue
to discuss with the Government of Colombia to try to work things out. The
Colombians and the United States do have an existing agreement that has
some relationship to this, but we need to provide the kind of exemption
that an Article 98 agreement would provide. That's our view.

But what's going to happen next year, that depends on the state of affairs,
whether we can conclude agreements with Colombia and other governments. It
depends on the kind of assistance programs we might be contemplating. As
always, much of the U.S. assistance for Colombia has been in the form of
anti-narcotics efforts, and those are not covered by these restrictions. So
it will depend on the kind of program that we design for Colombia next
year, as well as where we are in terms of Article 98 agreements.

QUESTION: But they would have to sign that if they want to receive military
help? I mean, there's no other option? There's no getting away from it?

MR. BOUCHER: There are limited possibilities for waivers in the law, but
how the President should decide to exercise those I just can't tell you at
this point.

QUESTION: Richard, may I see if I understand it? Because I also don't
understand what would happen next year. Does the President's act today mean
it is impossible for Colombia to receive additional military assistance
from the United States, point blank? In other words, if Congress --

MR. BOUCHER: Unless -- well --

QUESTION: Unless?

MR. BOUCHER: Unless -- see, that the -- again, there are still some
authorities in this law to exercise specific waivers for specific programs.
So, you know, speculating on what kind of program we'll have next year, how
much of that money might be affected, if there are aspects of the program
we might want to waive, I think it's a little too early to do that now,
particularly given that we continue to pursue with Colombia and others
agreements under Article 98.

So if we succeed in getting the non-surrender agreements with various
governments, we may not face that question come October 1st. If we do get
to October 1st, it will depend on the kind of program that we're
implementing in that year.

QUESTION: But I'm trying to understand it. It may be that I am just
confused about this. Is it conceivable that Congress could appropriate
additional military assistance for Colombia, and that that would go forward
absent, you know, an Article 98 agreement, or absent a waiver, or, no,
that's simply impossible?

MR. BOUCHER: It's not simply impossible but the authority, because there is
some additional waiver authority, it could be applied to a particular
program. But that hasn't been done at this point.

QUESTION: The 1st of October, what is that deadline? Could you explain that?

MR. BOUCHER: That's the start of our new fiscal year. So there is another
pot of money that has to be analyzed according to these criteria.

QUESTION: Oh, okay.

QUESTION: I just want to ask about one country that did get a waiver,
Botswana. What's the date that they signed their Article 98?

MR. BOUCHER: I don't know. I have to check.

QUESTION: Can you explain why it doesn't appear on the list that the Press
Office put out last night? Are they perhaps one of these countries that has
signed an Article 98 in secret?

MR. BOUCHER: Perhaps. It's not so secret. We said -- we said they had just
not publicly advertised it. We weren't going to do that either. But I don't
know if Botswana was one of those are not.

QUESTION: Yeah, what just happened in Croatia, what was U.S. military
assistance?

MR. BOUCHER: Again, I'll have to get the documents for you, and you can
check there exactly where Croatia stands on that list.

(end Boucher excerpt)

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