(Editor’s Note: This is Part III 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.)

Part I of this Symposium discussed the reasons why the United States should contribute to the International Criminal Court’s (ICC) Trust Fund for Victims. Part II outlined the passage, purpose, and relevant provisions of the American Servicemembers Protection Act of 2002 (ASPA), and discussed the recent amendments to that legislation through the 2023 Consolidated Appropriations Act (CAA). This post details the Office of Legal Counsel’s (OLC) binding interpretation of the ASPA and the earlier Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, FY 2000-2001 (FRAA).

Analyzing these two laws together, the OLC determined that the United States may not provide funds to the ICC, but may engage in diplomatic activity relating to the ICC, and may provide international assistance, training, and even detail government employees to the ICC “where those forms of assistance are limited to particular cases involving foreign nationals accused of genocide, war crimes, or crimes against humanity.”

The Obama Administration’s Engagement with the ICC

In 2009, the Obama administration showed an early interest in deepening U.S. engagement with the ICC. In her first speech before the United Nations Security Council, Ambassador Susan Rice described the ICC as “an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda and Darfur.” In March 2009, after the ICC issued an arrest warrant for Sudanese President Omar al-Bashir, the Obama administration reportedly launched a review of its policy toward Sudan, including a re-examination of whether the United States should formally join the ICC.

By that time, two pieces of federal legislation constrained U.S. engagement with the ICC: the ASPAand the FRAA. To understand the contours of the restrictions imposed by these laws, Mary DeRosa, then-Legal Adviser to the Obama Administration’s National Security Council, requested that OLC – a division of the Department of Justice that provides legal advice, including binding legal opinions, to the executive branch – advise on whether and how the United States could engage with the ICC without contravening domestic legislation. Specifically, DeRosa inquired:

[W]hether federal statutes bar the Government from engaging in certain diplomatic activities that could be supportive of the ICC, from providing funding directly to the ICC for specific cases, from providing certain international assistance to the ICC, from training ICC personnel, and from detailing Government employees to the ICC.

In January 2010, OLC released a memorandum outlining its interpretation of the ASPA and the FRAA, taking into account the views of several government departments and agencies (the “OLC Memo”). Its interpretation remains binding on the executive branch to this day and constitutes the most recent authoritative statement by the United States on the scope of permissible engagement with the ICC.

OLC’s Interpretation of the ASPA

As described in Part II, the ASPA was designed to protect United States persons and allies from the ICC’s jurisdiction, and imposed broad restrictions on the ability of the United States to provide support to the Court. At the end of the statute, however, is the Dodd Amendment, which provides that “[n]othing in this subchapter shall prohibit the United States from rendering assistance to international efforts to bring to justice … other foreign nationals accused of genocide, war crimes or crimes against humanity.” As the OLC Memo explains, there was initially disagreement within the executive branch as to whether the Dodd Amendment qualifies or clarifies the ASPA’s restrictions: that is, (1) whether it provides an exception to ASPA’s restrictions, permitting the United States to provide assistance to particular ICC efforts to bring to justice foreign nationals accused of the listed crimes, or (2) whether it only clarifies that the United States is not barred from providing assistance to other international justice efforts, outside of the ICC?

Based on the text, purpose, and legislative history of the ASPA, OLC determined that the Dodd Amendment qualifies the ASPA and therefore creates an exception to allow specific assistance to the ICC in cases involving foreign nationals accused of atrocity crimes. OLC reasoned that the amendment’s reference to “international efforts” includes the ICC under the plain meaning of those terms. Further, the purpose of the Dodd Amendment, read as a qualifying provision, does not conflict with the ASPA’s purpose of protecting United States persons, because the Dodd Amendment explicitly permits United States assistance only to cases involving foreign nationals. Finally, the Amendment was adopted after extensive debate during which its sponsors identified its precise consequences as qualifying the ASPA. Dodd made clear that he intended “international efforts” to include those of the ICC, which he described as “the only game in town.” Senator Mark Warner, the sponsor of the ASPA, likewise indicated that he understood the Amendment as covering ICC efforts just before he moved to incorporate the Dodd Amendment by unanimous consent. Prior to the bill’s final passage, the Congressional Research Service publicly expressed the view that the Amendment applied to cooperation with the ICC.

OLC also rejected the contention that the Dodd Amendment would render the waiver provisions in Sections 7422 and 7430 of the ASPA superfluous. Indeed, Dodd stated that the Amendment was necessary in part because the waiver provision in Section 7422, which requires a binding agreement with the ICC in order to waive the ASPA’s restrictions, was too onerous and therefore virtually impossible to use in many instances. Therefore, Section 7422 still remains effective for any effort to provide assistance in a case that does not fall within the scope of the Dodd Amendment, including cases involving United States nationals and the crime of aggression.

OLC thus determined that, because the Dodd Amendment (1) includes the ICC within the plain meaning of its text; (2) enumerates specific criteria for its application (i.e., cases of foreign nationals accused of genocide, war crimes, or crimes against humanity); and (3) was passed after extensive debate during which its sponsors described it as qualifying the ASPA, it does in fact create a carve-out permitting the United States to render assistance to the ICC in accordance with its terms and with other applicable law, namely, the FRAA. This interpretation is further bolstered by the amendments to the Dodd Amendments contained in the 2023 CAA which explicitly provide for U.S. support to the ICC with investigations and prosecutions of foreign nationals related to the Situation in Ukraine, “including to support victims and witnesses.” This indicates, in line with OLC’s 2010 interpretation, that the Dodd Amendment acts as a carve-out to the other prohibitions contained in the ASPA.

OLC’s Interpretation of the FRAA

Passed before the ASPA, the FRAA prohibits funds “for use by, or for support of, the International Criminal Court,” defined as “the court established by the Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17, 1998.” According to the OLC, under the surplusage canon of statutory construction, these two phrases, “for use by” and “for support of,” must each be given effect; they must be understood to prohibit different kinds of activity in order to avoid rendering one phrase meaningless.

With this statutory framework in mind, OLC interpreted the scope of each phrase. According to OLC, the prohibition on funds “for use by” the ICC only applies to funds that the ICC would spend in a self-directed way, including funds used to meet institutional expenses and to pay any costs associated with a specific case. While the prohibition applies only to self-directed funding, it is categorical and applies regardless of the way the ICC uses the funds.

While the prohibition on funds “for support of” the ICC appears very broad, OLC adopted a narrower interpretation. Absent a definition of “support” in the FRAA, OLC looked to other uses of the word in the United States Code. As an initial matter, OLC determined that Congress did not intend the ASPA’s broad definition of “support” to apply to the use of the same word in the FRAA. The ASPA includes other cross-references to the relevant section of the FRAA, suggesting the failure to align the definitions was not inadvertent. In addition, OLC reasoned that subsequently enacted legislation, including the ASPA, indicates that this FRAA provision does not impose a sweeping bar on support to the ICC – if it did, many of the ASPA’s provisions would arguably be meaningless. Instead, OLC determined that “support of” indicates “‘maintenance’ or ‘sustenance’ of the ICC as an institution.”

Therefore, according to OLC’s interpretation, the phrase “support of’ prohibits the provision of any kind of aid used to support the ICC as an institution, rather than in aid of a certain case. The OLC Memo cites as examples of “institutional support,” “donating a computer system, constructing a building, or detailing personnel for non-case-specific functions.”

OLC’s Conclusions

Taking these analyses together, OLC adopted three over-arching principles to circumscribe United States engagement with the ICC under domestic law. First, the United States may not provide the ICC with any funds that Congress has authorized to be appropriated, regardless of whether the funding is for institutional support or case-specific activities. Notably, the OLC Memo leaves open the question of unauthorized appropriations, raising the issue only in a footnote. Second, the United States may engage in diplomatic activities relating to the ICC. And third, in light of the Dodd Amendment, the United States can provide informational assistance, training, and even detail government employees to the ICC “where those forms of assistance are limited to particular cases involving foreign nationals accused of genocide, war crimes, or crimes against humanity.”

This interpretation is still binding on the United States and thereby continues to shape the United States’ engagement with the ICC. However, the 2023 CAA explicitly states that the United States can contribute to ICC investigations and prosecutions of foreign nationals related to the Situation in Ukraine “notwithstanding” the FRAA’s prohibitions on funds “for use by, or for support of,” the ICC. This creates a clear path, under the 2023 CAA, for the United States to make contributions to the Trust Fund for Victims for assistance programs related to the Situation in Ukraine. As discussed in the next Part, there also exists a pathway for the United States to contribute to the Trust Fund for Victims beyond its efforts in Ukraine.

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.

IMAGE: The Justice Department building on a foggy morning on Dec. 9, 2019, in Washington, D.C. (Photo by Samuel Corum via Getty Images)