Anti-ICC Legislation Generally
Congress has passed, and the president signed into law, several pieces of legislation intended to distance the US from the ICC and thereby undermine the Court. Several of them have either restricted US cooperation with or funding to the ICC, or punished other countries for not accepting the previous hostile US approach to the Court. Several of these laws have either been repealed or scaled back, in part due to the realization by US officials that these laws undercut US national interests.
Public Law No. 106-113, §§ 705-706
Current US Law
The Admiral James W. Nance and
Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 prohibits funds from the Foreign Relations Authorization Act "or any other act" from being used by or for the support of the ICC, or to extradite a United States citizen to a foreign country obligated to cooperate with the ICC unless the US receives guarantees that that person won't be sent to the ICC. It also states that the US "shall not become a party to the International Criminal Court except pursuant to a treaty made under Article II, section 2, clause 2 of the Constitution of the United States."
These sections remain US law and have been interpreted to prevent any US funds from going to the ICC. The current US administration interprets this law as only permitting in-kind support to the Court.
American Servicemembers' Protection Act (ASPA)
Current US Law
The American Servicemembers' Protection Act of 2002 (ASPA) was signed into law on January 28, 2008. The current version of ASPA includes the following provisions, subject to full waivers at the discretion of the president:
- Prohibition on cooperation with the International Criminal Court
- Restrictions on US participation in UN peacekeeping operations
- Prohibition on direct or indirect transfer of classified national security information, including law enforcement information, to the International Criminal Court, even if no American is accused of a crime
- Preauthorized authority to free members of the armed forces of the US and certain other persons detained or imprisoned by or on behalf of the international criminal court (the so-called "Hague Invasion" clause)
In addition to the specific waiver provisions relevant to specific prohibitions, there is section entitled "Assistance to International Efforts" - also known as the Dodd Amendment - which is essentially a catch-all exception authorizing the US government to participate in a wide-range of international justice efforts:
"Nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosevic, Osama bin Laden, other members of Al Queda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity."
- German Foreign Minister Joschka Fischer, Letter to Secretary of State Colin Powell (October 2001)
- Louis Michel on behalf of the European Union, Letter to Senator Tom Daschle, Majority Leader (October 30, 2001)
- Louis Michel on behalf of the European Union, Letter to US Secretary of State Colin Powell(October 30, 2001)
- The Netherlands House of Representatives of the States General, Interpellation regarding the US American Service Members' Protection Act (ASPA) (June 13, 2002)
- General Affairs Council of EU, Council Conclusions on the International Criminal Court (ICC) and the Draft US American Servicemembers' Protection Act (ASPA), (June 2002)
- Ambassador Javier Ruperez (Spain), Karster Ankjaer Jensen (Denmark) and Ambassador Gunter Burghardt (European Commission) on behalf of the European Union, Letter to Senator Tim Johnson (and to other House and Senate Apprpriations conferees) (June 18, 2002)
- Europe Minister Bertel Haarder, Statement Regarding the "American Serice Members' Protection Act" (July 3, 2002)
- European Parliament, Debate on Consequences for Transatlantic Relations of the Law on the Protection of US Personnel (July 3, 2002)
- European Parliament, Resolution on Consequences for Transatlantic Relations of Law on the Protection of US Personnel (on the draft American Servicemembers' Protection Act (ASPA)), P5_TA-PROV(2002)0367 (July 4, 2002)
- Greg Crouch, Dutch Citizens up in Arms Over US Congressional Act That Would Protect US officials or Service Personnel from War Crimes Convictions in The Hague, National Public Radio (June 14, 2002)
- Lauren Comiteau, The International Criminal Court: In Dutch with America, Chicago Tribune (July 14, 2002)
The original version of the law prohibited US military assistance to certain ICC States Parties unless they "entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal court from proceeding against United States personnel present in such country." The US conducted an aggressive Bilateral Immunity Agreement (BIA) campaign to secure such agreements to shield US nationals from the Court.
The effects of ASPA and ther BIA campaign were severely criticized by the Department of Defense. Several senior officials in the Pentagon made public statements about how ASPA's restriction of International Military Education and Training (IMET) and Foreign Military Funds (FMF) to countries that refused to conclude BIA undercut US national security interests.
- Department of Defense, Quadrennial Defense Review Report ("the Department seeks to ... [c]onsider whether the restrictions on the American Service Members Protection Act (ASPA) on IMET and other foreign assistance programs pertaining to security and the war on terror necessitate adjustment as we continue to advance the aims of the ASPA") (February 6, 2006)
- US Army General Bantz J. Craddock, Statement at and testimony before a United States Army Committee on House Armed Services Hearing on the Fiscal 2006 Defense Budget (March 9, 2005)
- Jim Loney, China's Influence in Latin America Rising, Reuters (March 10, 2005)
- US Navy Vice Admiral Lowell Jacoby, Testimony before a Senate Armed Services Committee Hearing (March 17, 2005)
- Vince Crawley, New Law May Hurt US Influence in Latin America: Official Concerned China Could Fill Assistance Vacuum, Air Force Times (March 28, 2005)
- Rick Maze, New Rules May Hinder US Training for Foreign Troops, Defense News (May 9, 2005)
- Mark Mazzetti, US Cuts in Africa Aid Said to Hurt War on Terror, The New York Times (July 23, 2006)
Learn more about the Bilateral Immunity Agreement Campaign
By January 2008, all of the prohibition of US military assistance to ICC States Parties refusing BIAs had been repealed.
First, on October 17, 2006 President Bush signed into law an amendment to ASPA as part of the John Warner National Defense Authorization Act for Fiscal Year 2007 removing IMET restrictions for all nations. President Bush has early issued waivers of these same IMET prohibitions with respect to some nations.
Second, on January 22, 2008 Congress again amended ASPA to eliminate FMF restrictions on nations refusing BIAs. President Bush signed this FMF amendment into law on January 28, 2008.
There have been no additional amendments or changes to ASPA since January 1998.
Expired and No Longer US Law
The last version of the Nethercutt provision expired on September 30, 2008 and was not renewed in the FY 2009 omnibus appropriations bill, Public Law No. 111-8, which was signed into law by President Obama on March 11, 2009.
Former Representative George Nethercutt's so-called "Nethercutt Amendment" to the Foreign Operations, Export Financing, and Related Programs Appropriations Act suspended Economic Support Fund (ESF) assistance to ICC States Parties who refuse bilateral immunity agreements (BIAs) with the US or have not been provided a Presidential waiver. It was intended to extend the reach of ASPA to cut non-military assistance, in addition to IMET and FMF assistance, but ended up hurting key relationships with allies. The Nethercutt provision also permitted waivers. It was renewed twice, but not for 2007.
- Representatives George Nethercutt, Jim Kolbe and Tom DeLay, Statements in favor of or opposition to the Nethercutt Amendment, Congressional Record (July 15, 2004)
- "Nethercutt Amendment" (H.AMDT.706 (A015)) to the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2005 (H.R. 4818), Public Law No. 108-447 (December 8, 2004)
- "Nethercutt Amendment" to the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2006 (H.R. 3057), Public Law No. 109-102 (November 14, 2005)
- "Nethercutt Amendment" to the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2008, a division of the Consolidated Appropriations Act, 2008 (H.R. 2764), Public Law No. 110-161 (December 26, 2007)
Other Anti-ICC Laws Prohibiting US Funding to the ICC
Expired and Not Renewed
- Public Law No. 107-228 (H.R. 1646), § 113(c), Foreign Relations Authorization Act, Fiscal Year 2003 (September 30, 2002)
- Public Law No. 107-77 (H.R. 2500), § 630, Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2002 (November 28, 2001)
Senate ICC-Related Reservations and Understandings
The US Senate, in providing its two-thirds advice and consent to ratification as required by the US Constitution, made a number of reservations and understandings relevant to the ICC. These Senate actions, which were on treaties and agreements on mutual criminal assistance, extradition and other forms of bilateral and international cooperation, were another form of anti-ICC action taken by a US legislative body. These treaties remain in effect and thus the reservations and understanding remain.
- Argentine Republic Extradition Treaty, signed at Buenos Aires (June 10, 1997)
- Barbados Extradition Treaty, signed at Bridgetown (February 28, 1996)
- Belize Extradition Treaty, signed at Belize (March 30, 2000)
- Belize Treaty on Mutual Legal Assistance in Criminal Matters, 148 Cong Rec § 11058 (November 14, 2002)
- Convention on the Rights of the Child, Optional Protocols on the Sale of Children, Child Prostitution and Child Pornography & The Involvement of Children in Armed Conflict, 148 Cong Rec § 5453 (June 12, 2002)
- Cyprus Extradition Treaty, signed at Washington (June 17, 1996)
- Cyprus Treaty on Mutual Legal Assistance in Criminal Matters, signed at Nicosia (December 20, 1999)
- Egypt Treaty on Mutual Legal Assistance in Criminal Matters, signed at Cairo (and a related exchange of diplomatic notes) (May 3, 1998)
- France Extradition Treaty, signed at Paris (April 23, 1996)
- France Treaty on Mutual Legal Assistance in Criminal Matters, signed at Paris (December 10, 1998)
- Greece Treaty on Mutual Legal Assistance in Criminal Matters, signed at Washington (May 26, 1999)
- Hong Kong Treaty on Mutual Legal Assistance in Criminal Matters, signed in Hong Kong (April 15, 1997)
- Inter-American Convention Against Corruption, adopted and opened for signature at the Specialized Conference of the Organization of American States (OAS) at Caracas, Venezuela (March 29, 1996)
- Inter-American Convention on Mutual Assistance in Criminal Matters and Optional Protocol, adopted at the twenty-second regular session of the Organization of American States (OAS) General Assembly meeting in Nassau, The Bahamas, on May 23, 1992, and at the twenty-third regular session of the OAS General Assembly meeting in Managua, Nicaragua (June 11, 1993)
- International Convention for the Suppression of the Financing of Terrorism, adopted by the United Nations General Assembly on December 9, 1999, and signed on behalf of the United States of America on January 10, 2000
- International Convention for the Suppression of Terrorist Bombings, adopted by the United Nations General Assembly on December 15, 1997, and signed on behalf of the United States of America on January 12, 1998
- India Treaty on Mutual Legal Assistance in Criminal Matters, 148 Cong Rec § 11058 (November 14, 2002)
- Ireland Treaty on Mutual Assistance in Criminal Matters, 148 Cong Rec § 11059 (November 14, 2002)
- Liechtenstein Treaty on Mutual Legal Assistance in Criminal Matters, 148 Cong Rec § 11059 (November 14, 2002)
- Luxembourg Extradition Treaty, signed at Washington (October 1, 1996)
- Luxembourg Treaty on Mutual Legal Assistance in Criminal Matters, signed at Washington (March 13, 1997)
- Nigeria Treaty on Mutual Legal Assistance in Criminal Matters, signed at Washington (September 13, 1989)
- Organization of Eastern Caribbean States Extradition Treaty, signed in 1996 by Antigua and Barbuda, Dominica, Grenada, St. Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines
- Paraguay Extradition Treaty, signed at Washington (November 9, 1998)
- Peru Extradition Treaty, 148 Cong Rec § 11057 (November 14, 2002)
- Poland Extradition Treaty, signed at Washington (July 10, 1996)
- Poland Treaty on Mutual Legal Assistance in Criminal Matters, signed at Washington (July 10, 1996)
- Romania Treaty on Mutual Legal Assistance in Criminal Matters, signed at Washington (May 26, 1999)
- South Africa Extradition Treaty, signed at Washington (September 16, 1999)
- South Africa Treaty on Mutual Legal Assistance in Criminal Matters, signed at Washington (September 16, 1999)
- Sri Lanka Extradition Treaty, signed at Washington (September 30, 1999)
- Ukraine Treaty on Mutual Legal Assistance in Criminal Matters, with Annex, signed at Kiev (an Exchange of Notes signed on September 30, 1999 provides for its provisional application) (July 22, 1998)