(Editor’s Note: This is Part II of a Just Security Symposium on United States support for the International Criminal Court’s Trust Fund for Victims. Other articles in the series can be found here.)
In Part I of this Symposium, PILPG discussed the strategic advantages to the United States in contributing to the Trust Fund for Victims, and raised the 2023 Consolidated Appropriations Act which created an explicit carve-out for contributions related to Ukraine. This Part outlines the most significant piece of U.S. legislation, the American Servicemembers’ Protection Act (ASPA or Act), which shapes permissible engagement by the United States with the International Criminal Court (ICC). ASPA is a critical piece of the domestic legal framework that frames U.S. ability to contribute to the Trust Fund for Victims.
ASPA aimed to protect U.S. servicemembers and persons from the jurisdiction of the ICC by prohibiting a wide range of engagement by the United States with the court. The Dodd Amendment, however, created a carve-out for assistance to international efforts to bring to justice foreign nationals accused of genocide, war crimes, or crimes against humanity. This carve-out was recently expanded through the 2023 Consolidated Appropriations Act (2023 CAA) to allow the United States to contribute to ICC victims’ assistance programs related to Ukraine.
U.S. Engagement with the ICC
In celebrating the adoption of the Rome Statute of the International Criminal Court (ICC) in 1998, Kofi Annan, then-Secretary-General of the United Nations, described the Court as “a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.” Two years later, President Bill Clinton signed the Rome Statute “to reaffirm [the United States’] strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity.” Clinton highlighted that the ICC cannot “supersede or interfere with functioning national judicial systems,” but instead follows a fundamental principle of complementarity.
But in May 2002, President George W. Bush reversed course and formally notified the U.N. Secretary-General “that the United States does not intend to become a party to the treaty,” and understood itself to have “no legal obligations arising from its signature on December 31, 2000.” Secretary of State Colin Powell justified this about-face by saying that “the sovereign state is best positioned to balance the interest of peace, justice, democratic principles and societal stability against the need for prosecution.” Indeed, the United States was eager to ensure that its people and allies would be insulated from ICC jurisdiction.
The 2002 American Servicemembers’ Protection Act
Toward this goal, in August 2002, Bush signed the ASPA into law, codifying protections for U.S. persons and allies from ICC jurisdiction and restricting U.S. involvement with the Court. As the ASPA sets out, the “United States Government has an obligation to protect the members of its Armed Forces,” and its “senior officials … against criminal prosecutions carried out by the [ICC].” Indeed, the legislative history confirms that the ASPA was passed with the fundamental goal of ensuring protection for U.S. persons and sovereignty.
The ASPA protects U.S. persons from the Court’s jurisdiction by restricting engagement of the United States with the ICC, defined as the court “established by the Rome Statute.” The Act prohibits U.S. courts, agencies, or other government entities from cooperating with an ICC request, from extraditing a person to the ICC or supporting their transfer, and from engaging in investigative activities relating to an inquiry, investigation, prosecution, or other proceeding at the ICC. The Act also directs the president to “ensure that appropriate procedures are in place to prevent the [direct and indirect] transfer of classified national security information and law enforcement information to the [ICC],” and authorizes the president “to use all means necessary and appropriate” to bring about the release of U.S. persons or allies who are detained or imprisoned by or on behalf of the ICC. The Act also prohibits“support to” the ICC, which it defines as providing “assistance of any kind, including financial support, transfer of property or other material support, services, intelligence sharing, law enforcement cooperation, the training or detail of personnel, and the arrest or detention of individuals.”
The Act includes two waiver provisions. Section 7422 authorizes the president to waive ASPA restrictions for a single period of one year provided that the president: (1) notify the appropriate congressional committees; and (2) ensure that the ICC has entered into a binding agreement that prohibits the Court from exercising its jurisdiction over U.S. persons or allies, and that none will be arrested, detained, or prosecuted by or on behalf of the ICC. More broadly, Section 7430 renders inapplicable the ASPA’s restrictions when the president exercises his authority as Commander in Chief on a case-by-case basis. These waivers align with the Act’s fundamental goal of protecting U.S. persons or allies from prosecution.
The Dodd Amendment
A 2002 amendment by then-Senator Christopher Dodd established another exception to the Act’s restrictions on assistance to the ICC. The so-called “Dodd Amendment” states that “[n]othing in this subchapter shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of Al Queda [sic], leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity.”
Under the Dodd Amendment, the United States is not subject to the ASPA’s restrictions when it (1) renders assistance, (2) to international efforts that are (3) aimed at bringing certain individuals to justice, who are (4) foreign nationals, (5) accused of genocide, war crimes, or crimes against humanity. According to Dodd, the plain meaning of the term “international efforts” includes the ICC’s work. While there is some disagreement as to whether the provision requires a formal indictment to enable U.S. assistance, the dominant interpretation is that an indictment is not required because the individuals and groups explicitly named in the Dodd Amendment had not all been indicted by the ICC at that time. Section 7422, Section 7430, and the Dodd Amendment thus establish exceptions to the ASPA’s restrictions on ICC engagement.
The exceptions were designed to enable U.S. engagement in global justice efforts, without jeopardizing U.S. persons or sovereignty. The Bush administration’s stance toward the ICC softened when it abstained from vetoing a referral of the situation in Darfur to the ICC, and proceeded tosupport the ICC’s investigation in Sudan. Subsequently, the actions by the Obama Administration further progressed the United States’ commitment to ensuring accountability for atrocity crimes. Following a report from a task force chaired by Ambassador William H. Taft IV and Judge Patricia M. Wald, convened by the American Society of International Law, the Obama administration built on the “greater engagement with the Court that had taken root during the second term of the Bush Administration,” by continuing to engage with the Court on issues of mutual concern and providing“support for the ICC’s investigation and prosecution of cases that advanced United States interests and values.” For example, the United States played a key role in the transfer to the ICC of Bosco Ntaganda, a militia leader from the Democratic Republic of Congo who turned himself in to the United States embassy in Rwanda, and Dominic Ongwen, a special commander of the Lord’s Resistance Army who was captured by U.S. Special Forces in the Central African Republic. The United States also voted in favor of the United Nations Security Council Resolution referring Libya to the ICC in 2011.
The Consolidated Appropriations Act of 2023
The 2023 CAA, passed on Dec. 29, 2022, further expanded on the ASPA’s original exceptions. Section 7073(b) amended the Dodd Amendment by adding explicit permission for United States to “render assistance to the International Criminal Court to assist with investigations and prosecutions of foreign nationals related to the Situation in Ukraine, including to support victims and witnesses.” The provision continues that this assistance can be made available “notwithstanding” the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, FY 2000-2001 (FRAA) prohibitions on funding “for use by, or for support of, the International Criminal Court,” and that in order to obligate funds, the Secretary of State must notify the House and Senate Committees on Appropriations, the Senate Committee on Foreign Relations, and the House Committee on Foreign Affairs.
Unfortunately, there is no legislative history related to this specific provision, and there has been little public commentary on this significant legislative change. Regardless, the plain text of the provision creates a carve-out for contributions related to the situation in Ukraine, “including to support victims.” This constitutes explicit permission for the United States to contribute to ICC victims’ assistance programs related to Ukraine.
While the ASPA remains the most significant piece of legislation constraining the United Statesrelationship with the ICC, it does not prohibit all engagement. Instead, its restrictions are specific, motivated by the purpose of protecting U.S. servicemembers, and subject to interpretation. This underlying purpose is maintained in the 2023 CAA’s expansion of the Dodd Amendment which permits assistance only in relation to the investigations and prosecutions of foreign nationals related to the Situation in Ukraine. The dominant interpretation of the ASPA, which we will discuss in greater depth in Part III, as well as the ASPA’s underlying purpose, suggest that policymakers who wish to engage with the ICC have avenues to do so, even beyond the Situation in Ukraine, without contravening U.S. law.
The articles in this symposium are written by different authors and represent a diverse range of perspectives. Articles I & IV are authored by Public International Law and Policy Group and reflect legal and policy analysis. Articles II & III are written by attorneys at Debevoise & Plimpton LLP, provide legal analysis and commentary on the topic, and are intended for informational purposes only. The views and opinions expressed in these articles reflect the views and opinions of the individual authors and not of Debevoise & Plimpton LLP.