June 21, 2001
The House of Representatives of the United States passed the "American Servicemembers' Protection Act of 2001" (ASPA), which restricts U.S cooperation with the International Criminal Court, on May 10 as an amendment to the Foreign Relations Authorization Act of 2001. A vote in the Senate may occur this month (see Regional Update section). The following is a summary of the key provisions of the bill:
* The bill restricts U.S. participation in any peacekeeping mission and prohibits military assistance for those nations that ratify the ICC Treaty, with the exception of NATO member countries and other major allies (Australia, Egypt, Israel, Japan, the Republic of Korea, and New Zealand were cited as members of this category). In addition, the bill authorizes the President to use "all means necessary and appropriate" to bring about the release from captivity of U.S. or Allied personnel detained or imprisoned against their will by or on behalf of the Court.
* The President may waive this restriction for countries that ratify the treaty if he reports to Congress that such cooperation is in the national security interest of the U.S. and the country has entered into an agreement with the United States protecting U.S. personnel from extradition to the Court.
* The U.S. may not participate in any peacekeeping mission unless the President certifies to Congress that the Security Council has exempted U.S. Armed Forces members from prosecution and each country in which U.S. personnel will be present is either not a Party to the ICC or has an agreement with the U.S. exempting U.S. Armed Forces members from prosecution; or that the U.S. has taken other appropriate steps to guarantee that U.S. Armed Forces members will not be prosecuted.
* No governmental entity in the United States, including State and local governments or any court, may cooperate with the International Criminal Court in matters such as arrest and extradition of suspects, execution of searches and seizures, taking of evidence, seizure of assets, and similar matters.
* No agent of the ICC may conduct in the US any investigative activity. The President should use the U.S. voice and vote at the Security Council to ensure that each resolution authorizing any U.N. peacekeeping operation permanently exempts members of the U.S. armed forces from prosecution by the ICC.
* No classified national security information can be transferred directly or indirectly to the ICC or to countries that are Party to the Rome Statute.
* The President is required to transmit two reports on allied command arrangements. The first must describe the degree to which members of Armed Forces may be placed under the command or operational control of foreign military officers subject to ICC jurisdiction and evaluate the degree of risk in such arrangements. The second must describe modifications to command and operational control arrangements with allies to reduce such risk.
These provisions are in addition to existing U.S. law (the 2000-2001 Foreign Relations Authorization Act) which prohibits any U.S. funds to the ICC, once it has been established, unless the Senate has given its advice and consent to the Rome Treaty.
