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 Congressional
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This page has information on actions taken by the US Congress.
The American Servicemembers' Protection Act (ASPA) and the Nethercutt Amendment are the highlights of this page. The sanctions provisions of ASPA have been repealed and the Nethercutt provision has expired and not been renewed. Text of the ASPA, Nethercutt, and other legislation can be found below, as can analysis of the legislation.
Action taken against the ICC in Congress have included a provision from the 106th Congress that prevented US funding in support of the ICC and extradition to the Court of US nationals and contractors. Two anti-ICC amendments passed the 107th session of Congress, preventing the use of funds to provide support or other assistance to the ICC or any criminal investigation by the Court. Another anti-ICC amendment passed the 108th Congress, which cuts economic assistance to states parties to the ICC and have not entered into an immunity agreement with the US. Read more about these laws.
The President's signing
statements for both 2002 amendments said that he would
interpret them consistently with his foreign affairs powers.
This does not mean, however, that these provisions have had
no impact. For instance, these laws may have helped bolster
the anti-ICC opposition to put pressure on the Administration
not to participate in the final ICC negotiations, and may be used to keep the US from becoming an observer
in the Assembly of States Parties or to prevent US cooperation
with the Court on a case-by-case basis as is called for by
the Dodd Amendment and the American Servicemembers' Protection Act (ASPA) (see below). Additionally, cuts in economic assistance to countries in support of the ICC under the Nethercutt provision continue to threaten the pace of ratification of the Court's statute worldwide, as countries will fear being in conflict with their obligations to the Court and their obligations under a bilateral immunity agreement with the US.
The current version of the 2002 American Servicemembers'
Protection Act (ASPA) - signed into law on January 28, 2008 - 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; and
- 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
Hague Invasion Clause).
The prohibition of US military assistance to parties to the
International Criminal Court was repealed in January 2008.
The Act is an odd and tortured piece of legislation whose
impact is hard to assess. Although ASPA contains authority
for the president to waive most of its requirements, its adoption
has nevertheless been a strong psychological and symbolic statement
against the Court and is already alienating our friends and
allies whom we are asking to help us with our anti-terrorist
coalition.
It was the outcome of several contradictory forces: a determination
shared with the Administration by House and Senate leadership
to make a strong statement of ideological hostility to the
ICC, the Administration's resolve to preserve in full the
President's constitutional powers in international relations,
and some congressional resistance to the Act - especially in
the Senate.
ASPA can best be understood as three stacked layers:
- The first is the original text that gave the President
a few very limited waivers, mostly for sanctions on friendly
countries.
- The second layer, dropped right on the first, consists
of waivers at the will of the president on all of the operative
provisions of the bill. The Administration insisted on these
to protect the president's constitutional privileges.
- The last layer on the top of the stack was language added
by Senator Dodd that essentially reverses the effect of
ASPA by 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."
The effects of ASPA have been severely criticized by the Defense Department. While
speaking before the United States Army Committee on House Armed Services regarding
the Fiscal 2006 Budget, US Army General Bantz J. Craddock, Commander of the US Southern Command,
made strong statements on the
impact of ASPA on military operations and cooperation in Latin America. He explains
that ASPA is creating a void of contact that is being filled by other
extra-hemispheric actors, including
China. Vice
Admiral Lowell Jacoby made
similar statements during a hearing
of the Senate Armed Services Committee. In addition, the Chairman of the Joint Chiefs
of Staff, Air Force General Richard Myers testified at the Senate
Appropriations Defense Subcommittee on April 27, 2005 that ASPA has reduced foreign
troop training opportunities and hurt the government's ability to fight terrorism
abroad as an "unintended consequence."
A US Department of Defense statement in its 2006
Quadrennial Defense Review Report, published on February 6th, 2006 suggested a review of whether
the ASPA restrictions on "foreign assistance programs pertaining to security and the war on terror
necessitate adjustment as we continue to advance the aims of the ASPA."
A July 23rd, 2006 news article provides
an overview of these developments related to anti-ICC legislation.
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 International Military Education and Training (IMET) restrictions for all nations.
Previously, on October 2, 2006 President Bush had issued a waiver of these same IMET prohibitions with respect to 21 nations.
Foreign Military Funds (FMF) restricted under ASPA were not affected by the 2006 waivers or the ASPA amendment. On November 22, 2006 President Bush issued ASPA waivers with respect to the
Comoros and Saint Kitts and Nevis, followed by a similar waiver with respect to Montenegro on August 31, 2007. Click here to see other presidential waivers.
On January 22, 2008 Congress amended the American Servicemembers' Protection Act (ASPA) to eliminate restrictions on Foreign Military Financing (FMF) to nations unwilling to enter into BIAs.
President Bush signed this FMF into law on January 28, 2008 and thus
no nation will be threatened with the loss of military assistance of any kind - FMF or IMET - for its refusal to shield US nationals from the ICC.
Read analysis by the Washington Working Group on the ICC
(WICC):
Read about the international
reaction to ASPA
Read about the potential
for legislative advocacy post-ASPA
Read Congressional statements
on ASPA and other legislation
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 111-8,
which was signed into law by President Obama on March 11, 2009. Its exclusion from the FY 2009 bill means
that nations will not lose ESF for refusing to enter into BIAs. Click here to read AMICC's analysis of the non-renewal and its impact on the Bilateral Immunity Agreement campaign.
Former Rep. George Nethercutt's so-called "Nethercutt Amendment" to the Foreign Operations,
Export Financing, and Related Programs Appropriations Act suspended Economic Support Fund assistance to
ICC States Parties who refuse bilateral immunity agreements (BIAs) with the US or have not been
provided a Presidential waiver. The funds affected support initiatives including peacekeeping,
anti-terrorism measures, democracy-building and drug interdiction. The language of the amendment allows
presidential exemptions for NATO, MNNA (major non-NATO allies), and Millennium Fund countries. The
appropriations bill containing the controversial amendment was adopted two years in a row, for FY 2005
and FY 2006. Congress did not pass a foreign operations appropriations bill or any other bill containing
the Nethercutt provision for FY 2007. On December 17, 2007 the US Congress approved HR 2764, a comprehensive
Consolidated Appropriations Act which reinstates the so-called Nethercutt provision cutting off Economic
Support Funds (ESF) to nations unwilling to enter into Bilateral Immunity Agreements (BIAs) shielding US
nationals from the jurisdiction of the ICC. President Bush signed
the bill into law on December 26 and it became Public Law 110-161. As a result, dozens of US allies may have lost millions
of dollars in economic assistance for FY 2008 and further alienated the US in the world community.
The FY 2008 version Nethercutt provision read:
HR 2764, Division J - Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008
Title VI: General Provisions
Limitation on economic support fund assistance for certain foreign governments that are parties to the International Criminal Court
Sec. 671
(a) None of the funds made available in this Act under the heading `Economic Support Fund' may be used to provide assistance to the government of a country that is a party to the International Criminal Court and has not 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.
(b) The President may, with prior notice to Congress, waive the prohibition of subsection (a) with respect to a North Atlantic Treaty Organization (`NATO') member country, a major non-NATO ally (including Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand), Taiwan, or such other country as he may determine if he determines and reports to the appropriate congressional committees that it is important to the national interests of the United States to waive such prohibition.
(c) The President may, with prior notice to Congress, waive the prohibition of subsection (a) with respect to a particular country if he determines and reports to the appropriate congressional committees that such country has 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.
(d) The prohibition of this section shall not apply to countries otherwise eligible for assistance under the Millennium Challenge Act of 2003, notwithstanding section 606(a)(2)(B) of such Act.
(e) Funds appropriated for fiscal year 2005 under the heading `Economic Support Fund' may be made available for democracy and rule of law programs and activities, notwithstanding the provisions of section 574 of division D of Public Law 108-447.
The Nethercutt Amendment differed from anti-ICC provisions in the American Servicemembers' Protection Act (ASPA) by imposing economic aid cuts instead of military aid cuts. Cutting economic assistance is far a more damaging act because in many countries, it directly affects the lives of their people.
In addition, existing Status of Forces Agreements (SOFAs) and other bilateral
agreements already provide full US jurisdiction over US
personnel and officials serving abroad. What the Nethercutt
Amendment does is exempt all US nationals and contractors with the US from accountability for widespread and systematic
war crimes, crimes against humanity, and genocide committed on the territory of a signatory country. Many countries
who have refused to sign BIAs are wary of exempting individuals
on their territory who are neither working for the US government
or military.
The provision hurt key relationships with allies
helping the US fight the global war on terrorism. It jeopardized $326.6 million in US economic assistance in FY 2006 to at least 12 nations:
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Brazil: $750,000. The US and Brazil frequently cooperate on numerous issues, including promoting democratic values and stability in the region, and combating international crime
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Cyprus: $20 million to support the peace process and eventual reunification of the island, support economic development, empower civil society, and promote good governance
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Ecuador: $7 million to combat drug trafficking, strengthen its democratic institutions, fight corruption and foster economic development
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Jordan: $250 million as Jordan's Upper House of Parliament is currently debating a pending BIA with the U.S. The funds would be used for three objectives: advancing economic opportunities, strengthening water resources management and increasing social sector development (healthcare, education and governance)
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Kenya: $8 million crucial for programs to promote the country's economy, infrastructure, development projects and political stability
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Mexico: $11.5 million to promote democracy, improve economic competitiveness by strengthening rule of law and supporting greater transparency and accountability in government. Funds would be used for technical assistance and training and support civil and criminal justice reform, greater respect for human rights and greater access to justice for disadvantaged populations
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Nigeria: $5 million due to the Parliament's rescission of the 2003 BIA with the U.S. The country is the fifth largest source of U.S. oil imports. Funds would be used to increase security and stability, strengthen institutions and promote credible elections
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Paraguay: $2.55 million to strengthen civil society, encourage anti-corruption reforms and support democratic political parties; an important partner in the U.S. fight against terrorism
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Peru: $8 million critical for efforts to decrease coca production, promote democracy by enhancing local governance, and assisting the country's Truth and Reconciliation Commission
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South Africa: $1.3 million, despite exceptional progress in economic growth and human rights
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Venezuela: $500,000 to strengthen democratic institutions, promote the rule of law and respect for human rights, and ensure free and fair elections in 2006; a leading supplier of foreign oil to the U.S.
Click here to read a Citizens for Global Solutions fact sheet on FY 2006 ESF aid requests.
On November 28, 2006 President Bush waived ESF restrictions with respect to Bolivia, Costa Rica, Cyprus, Ecuador, Kenya, Mali, Mexico, Namibia, Niger, Paraguay, Peru, Samoa, South Africa, and Tanzania. President Bush issued similar waivers for FY 2008 on June 20, 2008 with respect to the same 14 nations and on January 16, 2009 with respect to 16 nations. It is unclear whether these waivers restored any of the ESF funding lost for FY 2006 or FY 2008. Click here to see other presidential waivers.
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