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US & ICC > Congressional Update > Anti-ICC Legislation

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 Several of these laws have either been repealed or scaled back, in part due to the realization by US officials that these laws undercut US national interests.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."

International Reaction

Criticism

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.

Learn more about the Bilateral Immunity Agreement Campaign

Amendments

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.

Nethercutt Amendment

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.

Enactment

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.

Opinion

Other Anti-ICC Laws Prohibiting US Funding to the ICC

Expired and Not Renewed

Repealed

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.