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American Servicemembers’ Protection Act (ASPA)

The U.S. government is prohibited by law from providing material assistance to the International Criminal Court in its investigations, arrests, detentions, extraditions, or prosecutions of war crimes, under the American Servicemembers’ Protection Act of 2002, or ASPA (P.L. 107-206, Title II). The prohibition covers, among other things, the obligation of appropriated funds, assistance in investigations on U.S. territory, participation in United Nations peacekeeping operations unless certain protections from International Criminal Court actions are provided to specific categories of personnel, and the sharing of classified and law enforcement information. These prohibitions do not apply to cooperation with an ad hoc international criminal tribunal established by the United Nations Security Council such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR). See 22 U.S.C. 7423(a)(1). In the case of Darfur, the Darfur Accountability and Divestment Act of 2007 (H.R. 180), passed by the House on August 3, 2007, would have offered U.S. support to the
ICC’s efforts to prosecute those responsible for acts of genocide in Darfur, but was not enacted into law.

Section 2015 of American Servicemembers’ Protection Act (22 U.S.C. 7433, known as the “Dodd
Amendment”), however, provides an exception to these provisions:

“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 Qaeda, leaders of Islamic Jihad, and other foreign nationals accused of
genocide, war crimes or crimes against humanity.”

Analysis of the American Servicemembers’ Protection Act (ASPA): Anti-ICC Legislation

Jurisdictional and other concerns led Congress to pass the American Servicemembers’ Protection Act (P.L. 107-206, Title II), which was signed into law on August 2, 2002. Section 2007 of the American Servicemembers’ Protection Act (ASPA) prohibited U.S. military assistance to International Criminal Court member-states, except for NATO countries, major non-NATO allies, and countries subject to various other waiver provisions. Permanent waivers were granted to countries that ratified Article 98 agreements promising not to surrender U.S. nationals to the Court (see, for example, the African States that are International Criminal Court Parties andhave concluded an “Article 98 Agreement” with the United States). However, despite continuing opposition among some Members, a combination of presidential waivers and changes to the law have effectively nullified restrictions on U.S. assistance to African parties to the International Criminal Court.

In Africa, the American Servicemembers’ Protection Act effectively froze International Military Education and Training (IMET), Foreign Military Financing (FMF), and Excess Defense Articles (EDA) accounts for Kenya, Mali, Namibia, Niger, South Africa, and Tanzania. However, President Bush waived the prohibition on IMET assistance to 21 countries, including these six, on September 29, 2006, citing concerns that the restrictions could preclude valuable military-to-military ties (Presidential Determination No. 2006-27 of September 29, 2006; CRS interview with State Department official, September 4, 2008). Congress repealed the American Servicemembers’ Protection Act restriction on IMET funding in the National Defense Authorization Act for FY2007 (P.L. 109-364), which was signed into law on October 17, 2006. The National Defense Authorization Act for FY2008 (P.L. 110-181), signed into law on January 28, 2008, repealed Section 2007 of the American Servicemembers’ Protection Act entirely, ending remaining prohibitions on Foreign Military Financing andExcess Defense Articles assistance.

Separately, the Nethercutt Amendment to the FY2005 Consolidated Appropriations Act (P.L. 108-447) prohibited Economic Support Fund (ESF) assistance to International Criminal Court parties that had not entered into an Article 98 agreement with the United States, with certain waiver provisions. This prohibition was included as part of the FY2006 Consolidated Appropriations Act (P.L. 109-102, Section 574), and was subsequently carried over via continuing resolutions on
February 15, 2007 (P.L. 110-5) and September 29, 2007 (P.L. 110-92). A substantially identical restriction was included in the Consolidated Appropriations Act of 2008 (P.L. 110-161, Section 671), signed into law December 26, 2007.

However, in practice, this restriction was not applied to African countries, due to presidential waivers with respect to Kenya, Mali, Namibia, Niger, South Africa, and Tanzania (Presidential Determination No. 2007-5 of November 27, 2006, waives restrictions on FY2006 Economic Support Fund assistance; Presidential Determination No. 2008-21 of June 20, 2008, does not specify a fiscal year). The Omnibus Appropriations Act of 2009 (P.L. 111-8) did not carry forward Section 671, ending such restrictions on Economic Support Fund assistance.

Nethercutt Amendment

The 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.

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)

Repealed

• Public Law No. 107-117 (H.R. 3338), § 8173, Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 2002 (January 10, 2002)

List of ICC-Related Reservations and Understandings on U.S. Treaties

• 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)
• igeria 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)
• ri 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)

See Also

Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act
International Criminal Court
International Criminal Tribunal for Rwanda