Order Code RL31495
Report for Congress
Received through the CRS Web
U.S. Policy Regarding the
International Criminal Court
Updated September 3, 2002
Jennifer Elsea
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

U.S. Policy Regarding the International Criminal Court
Summary
One month after the International Criminal Court (ICC) officially came into
existence on July 1, 2002, the President signed legislation that limits U.S.
government support and assistance to the ICC, curtails military assistance to many
countries that have ratified the Rome Statute establishing the ICC, and most
controversially among European allies, authorizes the President to use “all means
necessary and appropriate to bring about the release” of certain U.S. and allied
persons who may be detained or tried by the ICC.
While most U.S. allies support the ICC, the Bush Administration firmly opposes
it and has renounced any U.S. obligations under the treaty. The Administration
initially vetoed a United Nations resolution to extend the peacekeeping mission in
Bosnia because it did not contain any guarantee that U.S. participants would be
immune to prosecution by the ICC. Ultimately, the Security Council and the U.S.
delegation were able to reach a compromise that defers for one year any prosecution
of participants in U.N. established or authorized missions, whose home countries
have not ratified the Rome Statute. While the compromise falls short of the
Administration’s original goal of ensuring permanent immunity for U.S. citizens
from the ICC, it suggests that the role of the U.N. Security Council under the Rome
Statute may prove effective in addressing some of the concerns U.S. opponents of the
ICC have voiced.
This report outlines the main objections the United States has raised with
respect to the ICC and analyzes the American Servicemembers’ Protection Act
(ASPA) enacted to regulate the U.S. cooperation with the ICC. The report concludes
with a discussion of the implications for the United States, as a non-ratifying
country, as the ICC comes into force, as well as the Administration’s apparent
strategy with regard to the ICC. This report is intended to serve as an update to the
fifth and sixth parts of CRS Report RL31437, International Criminal Court:
Overview and Selected Legal Issues
.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
U.S. Objections to the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Issue #1 Jurisdiction over Nationals of Non-Parties . . . . . . . . . . . . . . . . . . . 4
Issue #2 Politicized Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Issue #3 The Unaccountable Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issue #4 Usurpation of the Role of the U.N. Security Council . . . . . . . . . . . 6
Issue #5 Lack of Due Process Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Congressional Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
American Servicemembers’ Protection Act of 2002 . . . . . . . . . . . . . . . . . . . 8
Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Prohibitions and Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Authority to Free Persons from ICC . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Prospective Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Implications of the ICC for the United States as a Non-member . . . . . . . . . . . . 19
Observer Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Foreign Policy Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Strategy for Precluding ICC Prosecution of U.S. Troops and Officials . . . 23
List of Tables
FY2003 Requested Military Assistance for Certain States Parties to the ICC . . 12
FY2003 Requests for Military Assistance for Non-states Parties to the ICC . . . 14

U.S. Policy Regarding the International
Criminal Court
Introduction
July 1, 2002 marks the birth of the International Criminal Court (ICC), meaning
that crimes of the appropriate caliber committed after that date could fall under the
jurisdiction of the ICC, although the ICC is not expected to be ready to try cases until
at least early next year. The ICC will be the first global permanent international court
with jurisdiction to prosecute individuals for “the most serious crimes of concern to
the international community;”1 the United Nations, many human rights organizations,
and most democratic nations have expressed support for the new court.2 The Bush
Administration, however, opposes it and in May, 2002, formally renounced any U.S.
obligations under the treaty.3 On August 2, 2002, President Bush signed into law the
American Servicemembers’ Protection Act (ASPA) to restrict government
cooperation with the ICC. The Administration had earlier stressed that the United
States shares the goal of the ICC’s supporters – promotion of the rule of law – and
does not intend to take any action to undermine the ICC.4
1 See Rome Statute of the International Criminal Court, Preamble, U.N. Doc.
A/CONF.183/9 (1988)(“Rome Statute”). These include genocide, crimes against humanity,
war crimes, and potentially the crime of aggression, if the Assembly of States Parties is able
to reach an agreement defining it. Id. art. 5(1).
2See Barbara Crossette, World Criminal Court is Ratified – Praised by U.N., Opposed by
U.S.
, N.Y. TIMES Apr. 12, 2002, available at 2002 WL-NYT 0210200003. As of August
5, 2002, 77 nations have ratified the Rome Statute For the current status of signatures,
r a t i f i c a t i o n s a n d r e s e r v a t i o n s , v i s i t h t t p : / / u n t r e a t y . u n . o r g /
ENGLISH/bible/englishinternetbible/ partI/chapterXVIII/treaty10.asp.
3See Jonathon Wright, U.S. Renounces Obligations to International Court, REUTERS, May
6, 2002. Although some in the media have described the act as an “unsigning” of the treaty,
it may be more accurately described as a notification of intent not to ratify.
4See Marc Grossman, Under Secretary for Political Affairs, Remarks to the Center for
Strategic and International Studies, Washington, D.C., (May 6, 2002) (prepared remarks
available at http://www.state.gov/p/9949pf.htm). Secretary Grossman promised that:
Notwithstanding our disagreements with the Rome Treaty, the United States
respects the decision of those nations who have chosen to join the ICC; but they
in turn must respect our decision not to join the ICC or place our citizens under
the jurisdiction of the court.
So, despite this difference, we must work together to promote real justice after
July 1, when the Rome Statute enters into force.
(continued...)

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While the United States initially supported the idea of creating an international
criminal court5 and was a major participant at the Rome Conference,6 in the end, the
United States voted against the Statute.7 Nevertheless, President Clinton signed the
treaty December 31, 2000, at the same time declaring that the treaty contained
“significant flaws” and that he would not submit it to the Senate for its advice and
consent “until our fundamental concerns are satisfied.”8 The Bush Administration
has likewise declined to submit the Rome Statute to the Senate for ratification, and
has notified the U.N. Secretary General, as depositary, of the U.S. intent not to ratify
the treaty.9 The primary objection given by the United States in opposition to the
treaty is the ICC’s possible assertion of jurisdiction over U.S. soldiers charged with
“war crimes” resulting from legitimate uses of force, and perhaps over civilian
4(...continued)
The existence of a functioning ICC will not cause the United States to retreat
from its leadership role in the promotion of international justice and the rule of
law.
5 See Ruth Wedgwood, Harold K. Jacobson and Monroe Leigh, The United States and the
Statute of Rome,
95 AM. J. INT’L L. 124 (2001) (commenting that the United States has
“repeatedly and publicly declared its support in principle” for an international criminal
court). Congress expressed its support for such a court, providing the rights of U.S. citizens
were recognized. See, e.g., Foreign Operations Appropriations Act § 599E, P.L. 101-513,
104 Stat. 2066-2067 (1990)(expressing the sense of the Congress that “the United States
should explore the need for the establishment of an International Criminal Court” and that
“the establishment of such a court or courts for the more effective prosecution of
international criminals should not derogate from established standards of due process, the
rights of the accused to a fair trial and the sovereignty of individual nations”); Anti-Drug
Abuse Act of 1988, § 4108, P.L. 100-690, 102 Stat. 4181, 4266 (1988)(encouraging the
President to initiate discussions with foreign governments about the possibility of creating
an international court to try persons accused of having engaged in international drug
trafficking or having committed international crimes, providing constitutional guarantees
of U.S. citizens are recognized); P.L. 99-399, § 1201 (1986) .
6 See U.N. International Criminal Court: Hearings before the Subcomm. on International
Operations of the Senate Foreign Relations Committee,
105th Cong. (1998) (testimony of
David J. Scheffer, Ambassador-at-Large for War Crimes Issues).
7See Wedgwood, et al., supra note 5, at 124 (noting that the final vote for the Statute was
120 in favor to seven against).
8See Statement on the Rome Treaty on the International Criminal Court, Dec. 31, 2000,
37(1) Weekly Compilation of Presidential Documents 4 (2001).
9Because the United States signed the Rome Statute, it had been obligated under
international law to refrain from conducting activity in contravention of the object and
purpose of the treaty. See Vienna Convention on the Law of Treaties, opened for signature
May 23, 1969, art. 18, 1155 U.N.T.S. 335. However, this obligation ends once a signatory
state has indicated an intent not to ratify the treaty. Id. Some press reports initially
indicated the Administration was also planning to renounce the Vienna Convention, which
the United States has signed but not yet ratified. See Neil A. Lewis, U.S. to ‘Unsign’ Treaty,
Disavow World Tribunal
, SAN DIEGO UNION & TRIB., May 5, 2002 at A1. The report was
apparently based on a misunderstanding of the Administration’s statement explaining the
intent behind its action, which was reportedly to avoid any obligations on the part of the
United States that may have been incurred through its signature of the Rome Statute, in
accordance with article 18 of the Vienna Convention.

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policymakers, even if the United States does not ratify the Rome Statute. The United
States sought to exempt U.S. soldiers and employees from the jurisdiction of the ICC
based on the unique position the United States occupies with regard to international
peacekeeping.10
On June 30, 2002, the United States vetoed a draft U.N. resolution to extend the
peacekeeping mission in Bosnia because the members of the Security Council
refused to add a guarantee of full immunity for U.S. personnel from the jurisdiction
of the ICC, a move that provoked strong opposition from ICC supporters concerned
with the viability of that institution, and that also raised some concerns about the
future of United Nations peacekeeping.11 Ultimately, however, the Security Council
and the U.S. delegation were able to reach a compromise and adopted unanimously
a resolution requesting the ICC defer, for an initial period of one year, any
prosecution of persons participating in U.N. peacekeeping efforts who are nationals
of states not parties to the ICC. The compromise reached by the Security Council
does not provide permanent immunity for U.S. soldiers and officials from
prosecution by the ICC, but invokes article 16 of the Rome Statute to defer potential
prosecutions for one year, at which time the Security Council may vote to continue
the deferral for another year. The United States is also pursuing bilateral agreements
to preclude extradition by other countries of U.S. citizens to the ICC.
This report outlines the main objections the United States has raised with
respect to the ICC and analyzes the American Servicemembers’ Protection Act
(ASPA) enacted to regulate the U.S. cooperation with the ICC. The report concludes
with a discussion of the implications for the United States, as a non-ratifying
country, after entry into force of the ICC Statute, as well as the Administration’s
apparent strategy with regard to the ICC. This report is intended to serve as an update
to the fifth and sixth parts of CRS Report RL31437, International Criminal Court:
Overview and Selected Legal Issues
.
U.S. Objections to the Rome Statute
The primary objection given by the United States in opposition to the treaty is
the ICC’s possible assertion of jurisdiction over U.S. soldiers charged with “war
crimes” resulting from legitimate uses of force, or its assertion of jurisdiction over
other American officials charged for conduct related to foreign policy initiatives.
The threat of prosecution by the ICC, it is argued, could impede the United States in
carrying out military operations and foreign policy programs, impinging on the
sovereignty of the United States. Detractors of the U.S. position depict the objection
as a reluctance on the part of the United States to be held accountable for gross
human rights violations or to the standard established for the rest of the world.
Below, in bold type, are summarized some of the main objections voiced by
U.S. officials and other critics of the Rome Statute. Each objection is followed by the
10See Grossman, supra note 4.
11See Colum Lynch, Dispute Threatens U.N. Role in Bosnia; U.S. Wields Veto in Clash over
War Crimes Court
, WASH. POST, Jul. 1, 2002, at A1.

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counterpositions likely to be voiced by representatives of U.S. foreign allies that
support the ICC, as well as a very brief discussion of the issue. This section is
intended to familiarize the reader with the basic issues that comprise the current
debate, and not to provide an exhaustive analysis of the issues.12 None of the
statements in the section below should be interpreted to represent the view of CRS,
since CRS does not take positions on policy issues.
Issue #1 Jurisdiction over Nationals of Non-Parties
Only nations that ratify treaties are bound to observe them. The ICC purports
to subject to its jurisdiction citizens of non-party nations, thus binding non-
party nations.
13 ICC supporters may argue that the ICC has jurisdiction over
persons, not nations. Non-party states are not obligated to do anything under the
treaty. Therefore, the Rome Statute does not purport to bind non-parties, although
non-party states may cooperate or defend their own interests that may be affected by
a pending case. ICC opponents, however, may point out that if individuals are
charged for conduct related to carrying out official policy, the difference between
asserting jurisdiction over individuals and over the nation itself becomes less clear.14
After all, it is arguably the policy decision and not the individual conduct that is
actually at issue. The threat of prosecution, however, could inhibit the conduct of
U.S. officials in implementing U.S. foreign policy. In this way, it is argued, the ICC
may be seen to infringe U.S. sovereignty.
Some ICC supporters have asserted that the crimes covered by the Rome Statute
are already prohibited under international law either by treaty or under the concept
of “universal jurisdiction,” or both; therefore, all nations have jurisdiction to try
persons for these crimes. The ICC, they argue, would merely be exercising the
collective jurisdiction of its members, any of which could independently assert
jurisdiction over the accused persons under a theory of “universal jurisdiction;” the
Nuremberg trials serve as an example of such collective jurisdiction.15 ICC opponents
may note that the existence of “universal jurisdiction” has been disputed by some
academics, who argue that actual state practice does not provide as much support for
the concept as many ICC supporters may claim.16 However, ICC supporters note, the
12For a more in-depth analysis of these issues, see International Criminal Court: Overview
and Selected Legal Issues, CRS Report RL31437.
13See Fact Sheet: The International Criminal Court, U.S. Department of State Office of War
Crimes Issues, May 6, 2002; Grossman, supra note 4 (asserting “the United States has never
recognized the right of an international organization to [detain and try American citizens]
absent consent or a UN Security Council mandate”).
14See Ruth Wedgewood, The United States and the International Criminal Court: The
Irresolution of Rome
, 64 LAW & CONTEMP. PROBS. 193, 199 (2001) (arguing the state whose
national is charged remains a “party in interest”to the prosecution).
15See Jordan J. Paust, The Reach of ICC Jurisdiction over Non-Signatory Nationals, 33
VAND. J. TRANSNAT’L L. 1, 3-4 (2000).
16See Wedgewood, supra note 14, at 199 (pointing out there is “no ordinary precedent for
delegating national criminal jurisdiction to another tribunal, international or national,
(continued...)

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Rome Statute does not rely entirely on universal jurisdiction; certain pre-conditions
to jurisdiction must be met, including the consent of either the state on whose
territory the crime occurred or the state of nationality of the accused.17 The United
States is already party to most of the treaties that form the basis for the definitions of
crimes in the Rome Statute, meaning U.S. citizens are already subject to the
prohibitions for which the ICC will have jurisdiction.
ICC supporters may further argue that if the ICC could not assert jurisdiction
over non-party states, so-called “rogue regimes” could insulate themselves from the
reach of the ICC simply by not ratifying the Rome Statute. The purpose for creating
the ICC would be subverted. The United States had proposed to resolve this
problem by creating a mandatory role for the U.N. Security Council in deciding when
the ICC should assert jurisdiction, but the majority of other countries refused to adopt
such a rule on the stated grounds that it would mirror the uneven prosecution of war
crimes and crimes against humanity under the present system of ad hoc tribunals.
Issue #2 Politicized Prosecution
The ICC’s flaws may allow it to be used by some countries to bring trumped-up
charges against American citizens, who, due to the prominent role played by the
United States in world affairs, may have greater exposure to such charges than
citizens of other nations.
18 ICC supporters argue that the principle of
“complementarity” will ensure that the ICC does not take jurisdiction over a case
involving an American citizen, unless the United States is unwilling or unable
genuinely to investigate the allegations itself, a scenario some argue is virtually
unthinkable. Some also take exception to the notion that Americans are more likely
to be targeted for prosecution although many other countries that participate in
peacekeeping operations, for example, are willing to subject their soldiers and
officials to the jurisdiction of the ICC. Many U.S. opponents of the ICC express
concern that the ICC will be able to second-guess a valid determination by U.S.
prosecutors to terminate an investigation or decline to prosecute a person. It is not
uncommon for unfriendly countries to characterize U.S. foreign policy decisions as
“criminal.” The ICC could provide a forum for such charges. Some ICC supporters
dispute the likelihood of such an occurrence, and express confidence that unfounded
charges would be dismissed.
16(...continued)
without consent of the affected states, except in the aftermath of international
belligerency”). Some observers, however, note that one of the reasons for constituting an
international criminal court was to do away with the need for military conquest prior to
prosecuting war crimes, in the hope of eliminating the perception of “victor’s justice.”
17Rome Statute, supra note 1, art. 12. See generally International Criminal Court: Overview
and Selected Legal Issues 21-26, CRS Report RL31437 (summarizing jurisdictional
requirements). There is no consent requirement in cases referred by the Security Council.
18See Grossman, supra note 4.

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Issue #3 The Unaccountable Prosecutor
The Office of the Prosecutor, an organ of the ICC that is not controlled by any
separate political authority, has unchecked discretion to initiate cases, which
could lead to “politicized prosecutions.”
19 ICC supporters may counter that the
ICC statute does contain some restraints on the Prosecutor, including a provision that
the Prosecutor must seek permission from a pre-trial chamber to carry out a self-
initiated prosecution, and a provision for removal of the Prosecutor by vote of the
Assembly of States Parties.20 The independence of the prosecutor, it is argued, is
vital in order to ensure just results, free from political control. U.S. negotiators at the
Rome Conference had pressed for a role for the U.N. Security Council to check
possible “overzealous” prosecutors and prevent politicized prosecutions. The
majority of nations represented at the Rome Conference took the view that the U.N.
Security Council, with its structure and permanent members, would pose an even
greater danger of “politicizing” ICC prosecutions, thereby guaranteeing impunity for
some crimes while prosecuting others based on the national interests of powerful
nations.
Issue #4 Usurpation of the Role of the U.N. Security Council
The ICC Statute gives the ICC the authority to define and punish the crime of
“aggression,” which is solely the prerogative of the Security Council of the
United Nations under the U.N. Charter.
21 ICC supporters may argue that all states
parties will have the opportunity to vote on a definition of aggression after the treaty
has been in effect for seven years, which definition must comport with the U.N.
Charter, thereby preserving the role of the U.N. Security Council.22 The ICC, under
this view, is merely providing a forum for trying persons accused of committing
“aggression” under international law. Opponents of the ICC, however, may argue
that the lack of agreement among nations as to the definition of aggression suggests
that any definition adopted only by a majority of member states of the ICC may not
be sufficiently grounded in international law to be binding as jus cogens.23 The U.N.
19See id.
20Rome Statute, supra note 1, art. 46, provides procedures for removing a Prosecutor who:
(a) Is found to have committed serious misconduct or a serious breach of his or her duties
under [the Rome] Statute, as provided for in the Rules of Procedure and Evidence; or
(b) Is unable to exercise the functions required by this Statute.
21See Grossman, supra note 4
22See RL31437 at 20-21 (summarizing issues relevant to the definition of “aggression”).
23A mutually acceptable definition for the elements of the crime of aggression has long
eluded the international community, impeding earlier attempts to establish an international
criminal court. See Jimmy Gurulé, United States Opposition to the 1998 Rome Statute
Establishing an International Criminal Court: Is the Court’s Jurisdiction Truly
Complementary to National Criminal Jurisdictions?
, 35 CORNELL INT’L L.J. 1, 2 (2002).
Article 39 of the U.N. Charter leaves it to the Security Council to determine the existence
of and take action with respect to any act of aggression, but does not provide a definition.

CRS-7
General Assembly adopted a resolution in 197424 addressing the definition of
aggression, but it has only been invoked once by the Security Council.25 The
definition contains an enumeration of offenses included as possible aggression,26 but
leaves the determination to the Security Council.
Issue #5 Lack of Due Process Guarantees
The ICC will not offer accused Americans the due process rights guaranteed
them under the U.S. Constitution, such as the right to a jury trial.
Supporters
of the Rome Statute contend it contains a comprehensive set of procedural safeguards
that offers substantially similar protections to the U.S. constitution.27 Some also note
that the U.S. Constitution does not always afford American citizens the same
procedural rights. For example, Americans may be tried overseas, where foreign
governments are not bound to observe the Constitution. Moreover, cases arising in
the armed services are tried by court-martial, which is exempt from the requirement
for a jury trial. The current U.S. policy about the use of military tribunals in the war
against terrorism could lead to suggestions of a double standard on the part of the
United States with respect to procedural safeguards in war crimes trials.
24G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 19, U.N. Doc A/9615 (1974).
25See Kriangsak Kittichaisaree, The NATO Military Action and the Potential Impact of the
International Criminal Court
, 4 SING. J. INT’L & COMP. L. 498, 505 (2000) (citing U.N.
Security Council Resolution 418 of 4 Nov. 1977, declaring South Africa guilty of aggression
against Angola).
26 G.A. Res. 3314, art. 3, lists the following examples of possible acts of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another
State, or any military occupation, however temporary, resulting from such invasion or
attack, or any annexation by the use of force of the territory of another State or part
thereof;
(b) Bombardment by the armed forces of a State against the territory of another State
or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine
and air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State
with the agreement of the receiving State, in contravention of the conditions provided
for in the agreement or any extension of their presence in such territory beyond the
termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of
another State, to be used by that other State for perpetrating an act of aggression
against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such gravity
as to amount to the acts listed above, or its substantial involvement therein.
27See id. at 29-38 (describing procedural safeguards in the Rome Statute); see also Selected
Procedural Safeguards in Federal, Military, and International Courts, CRS Report RL31262
(providing brief comparison of ICC procedural safeguards to federal and military rules of
procedure and evidence).

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Congressional Action
Congress has passed several riders effectively precluding the use of funds to
support the ICC.28 Congress passed the American Servicemembers’ Protection Act
of 2002 (ASPA) as title II of the supplemental appropriations bill for 2002, which
was signed by the President on August 2, 2002.29 Additionally, the House of
Representatives added a rider to the Bob Stump National Defense Authorization Act
for Fiscal Year 2003, H.R. 4546, expressing the sense of the Congress that “none of
the funds appropriated pursuant to authorizations of appropriations in this Act should
be used for any assistance to, or to cooperate with or to provide any support for, the
International Criminal Court.”30
American Servicemembers’ Protection Act of 2002
Both the House of Representatives and the Senate added the American
Servicemembers’ Protection Act (ASPA) to the supplemental appropriations bill for
the fiscal year ending September 30, 2002, H.R. 4775. The conferees adopted the
Senate version of the bill, which includes a new provision that the ASPA will not
prevent the United States from cooperating with the ICC if it prosecutes persons such
as Saddam Hussein or Osama bin Laden.31
Legislative History.
Originally introduced in the 106th Congress as S. 2726, the ASPA is intended
to shield members of the United States Armed Forces and other covered persons
from the jurisdiction of the ICC. The Senate Committee on Foreign Relations held
hearings32 the same day the bill was introduced but did not report it. The ASPA was
reintroduced in the 107th Congress as S. 857 on May 9, 2001, and an amended
version was introduced as S. 1610 on November 1, 2001. The House of
Representatives also passed a version of ASPA in the Foreign Relations
Authorization Act, Fiscal Years 2002 and 2003, H.R.1646, Title VI, subtitle B. The
Senate amended version of H.R. 1646 does not include the ASPA. H.R. 1646 is in
conference at the time of this writing. The Senate passed a somewhat weakened
version of the ASPA, as part of the Departments of Commerce, Justice, and State, the
28See Department of Defense Appropriations for 2002, P.L. 107-117.
§ 8173. None of the funds made available in division A of this Act may be used to provide
support or other assistance to the International Criminal Court or to any criminal
investigation or other prosecutorial activity of the International Criminal Court.
See also Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 2002, § 630, P.L.107-77.
29P.L. 107-206.
30H.R. 4546 § 1034.
31See H.R. REP. NO. 107-593 (2002).
32The International Criminal Court: Protecting American Servicemen and Officials from the
Threat of International Prosecution, Hearing before the Senate Comm. on Foreign
Relations
, 106th Cong. (2000).

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Judiciary, and Related Agencies Appropriations Act, 2002, HR 3338, but it was
replaced in the enacted law with language prohibiting spending to support the ICC.33
Title II of H.R. 4775 is substantially similar to S. 857 (H.R. 1794), and repeals
the provision passed as part of H.R. 3338.
Prohibitions and Requirements.
The ASPA prohibits cooperation with the ICC by any agency or entity of the
federal government, or any state or local government. (Section 2004) Covered
entities are prohibited from responding to a request for cooperation by the ICC or
providing specific assistance, including arrest, extradition, seizure of property, asset
forfeiture, service of warrants, searches, taking of evidence, and similar matters. It
prohibits agents of the ICC from conducting any investigative activity on U.S. soil
related to matters of the ICC. Section 2004(d) states that the United States “shall
exercise its rights to limit the use of assistance provided under all treaties and
executive agreements for mutual legal assistance in criminal matters ... to prevent ...
use by the [ICC of such assistance].” It does not ban the communication to the ICC
of U.S. policy or assistance to defendants. It does not prevent private citizens from
providing testimony or evidence to the ICC. Section 2006 requires the President to
put “appropriate procedures” in place to prevent the direct or indirect transfer of
certain classified national security information to the ICC.
Restrictions on Participation in Peacekeeping Missions.
Unless subject to a blanket waiver under section 2003,34 section 2005 of the
ASPA restricts U.S. participation in U.N. peacekeeping operations to missions where
the President certifies U.S. troops may participate without risk of prosecution by the
ICC because the Security Council has permanently exempted U.S. personnel from
prosecution for activity conducted as participants,35 or because each other country
participating in the mission is either not a party to the ICC and does not consent to
its jurisdiction, or has entered into an agreement “in accordance with article 98” of
the Rome Statute.36 The latter option may not provide as much assurance as the first;
an article 98 agreement would prevent the surrender of certain persons to the ICC by
33P.L. 107-117 § 8173. See supra note 28. The version of ASPA passed by the Senate in
H.R. 3338 omitted the prohibition on military assistance to non-NATO ICC member
countries and the limitations on participation in U.N. peacekeeping missions.
34See infra page 16.
35The compromise reached by the U.N. Security Council in Resolution 1422 (2002) provides
for a one-year deferral, thus providing neither immunity nor permanent protection, which
would not appear to meet this criterion. See infra note 74.
36Rome Statute, supra note 1, art. 98, prohibits the ICC from pursuing requests for assistance
or surrender that would require the requested state to act inconsistently with certain
international obligations. This provision, as well as other provisions that refer to articles of
the Rome Statute, may be seen as contradicting with finding (11) of section 2, which states
that the United States “will not be bound by any of [the terms of the Rome Statute].”

CRS-10
parties to the article 98 agreement,37 but would not bind the ICC if it were to obtain
custody of the accused through other means. If the alleged crime is committed on the
territory of a state party to the Rome Statute, the consent requirement for the
jurisdiction of the ICC would be met, despite the existence of the article 98
agreement. That country could, however, carry out its own investigation and invoke
complementarity to preclude the ICC’s jurisdiction. Additionally, the country that is
the object of the peacekeeping mission may consent to the ICC’s jurisdiction over
U.S. participants for alleged crimes committed on its territory, whether or not it is a
member of the ICC.
The restriction may also be waived for peacekeeping missions where the
President certifies that U.S. participation is in the national interest of the United
States. The national interest qualification would appear to be the most easily met of
the three waiver options; whenever the United States uses its vote in the Security
Council to approve a peacekeeping operation, the mission presumably is deemed to
serve the national interest.38 This section could conceivably be interpreted to suggest
the President has the authority to commit U.S. troops to participate in U.N.
peacekeeping missions without the prior approval of Congress. The restriction does
not apply to peacekeeping missions established prior to July 1, 2003.39
Restriction on Provision of Military Assistance.
Effective 1 July 2003, the ASPA also prohibits military assistance to any
country that is a member of the ICC, except for NATO countries and major non-
NATO allies,40 unless the President waives the restriction (Section 2007) or a blanket
37See Rome Statute, supra note 1, art. 98, which provides:
Article 98 Cooperation with respect to waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the
requested State to act inconsistently with its obligations under international law with respect to the
State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain
the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State
to act inconsistently with its obligations under international agreements pursuant to which the consent
of a sending State is required to surrender a person of that State to the Court, unless the Court can first
obtain the cooperation of the sending State for the giving of consent for the surrender.
The article appears to cover only persons sent by the government to the requested state on
official business, such as officials and military personnel, and would not cover private
citizens who are present in the requested state for reasons unrelated to official duty. An
agreement signed by a state party to the ICC that promises not to surrender any other
citizens of another state to the ICC would appear to be covered by art. 97 of the Rome
Statute, which requires the requested state to consult with the ICC if honoring a request for
surrender to the ICC would cause the requested state to breach its international obligations.
38See, e.g., 22 U.S.C. § 287b(e)(2)(B) (requiring as part of an annual report to Congress on
U.N. activities information about possible authorization for peacekeeping missions,
including the “vital national interest to be served”).
39 See P.L 107-206, § 2005(b).
40Major non-NATO allies include Australia, Egypt, Israel, Japan, Jordan, Argentina, the
Republic of Korea, and New Zealand. (§ 2007(d)). Taiwan is also exempt under § 2007.
(continued...)

CRS-11
waiver is in effect under section 2003. Military assistance, as defined in the ASPA,
includes foreign assistance under chapters 2 and 5 of Part II of the Foreign Assistance
Act of 1961, as amended,41 and defense articles and services financed by the
government, including loans and guarantees, under section 23 of the Arms Export
Control Act.42 The President may waive the prohibition without prior notice to
Congress if he determines and reports to the appropriate committees that such
assistance is important to the national interest or the recipient country has entered
into a formal article 98 agreement to prevent the ICC’s proceeding against U.S.
personnel present in such country. The following table provides a list of countries
for which military assistance has been requested for FY 2003 that could be affected
by the restriction (not including NATO allies and other countries exempt from the
restriction).43
40(...continued)
The President may designate other nations as major non-NATO allies under 22 U.S.C. §
2321k, by notifying Congress 30 days in advance.
4122 U.S.C. § 2151 et seq. Chapter 2 is codified at 22 U.S.C. §§ 2311 - 2321k (provision of
defense articles and services). Chapter 5 is codified at 22 U.S.C. §§ 2347 - 2347d
(international military education and training of foreign personnel in furtherance of the goals
of international peace and security, to improve the recipient’s self-defense capabilities, and
to increase awareness of human rights).
4222 U.S.C. § 2763 (authorizing President to provide credit to friendly foreign countries and
international organizations for the purchase of defense articles and services).
43Romania is not included because it has signed an article 98 agreement. See Press Release,
United States Department of State, U.S. and Romania Sign Article 98 Agreement (Aug. 1,
2002), available at http://www.state.gov/r/pa/prs/ps/2002/12393.htm.

CRS-12
FY2003 Requested Military Assistance for Certain States Parties to the ICC
Country
Date Ratified
FY2003
FY2003 IMET**
Total FY2003
ICC
FMF*
($ in thousands)
Military
($ in thousands)
Assistance
Belize
5 Apr 2000
300
175
475
Benin
22 Jan 2002
0
400
400
Bolivia
27 Jun 2002
2000
800
2800
Bosnia and Herzegovina
11 Apr 2002
2500
900
3400
Botswana
8 Sep 2000
1000
600
1600
Brazil
20 Jun 2002
0
500
500
Bulgaria
11 Apr 2002
9500
1350
10850
Cambodia
11 Apr 2002
0
200
200
Central African Republic
3 Oct 2001
0
110
110
Colombia
5 Aug 2002
98000
1180
99180
Democratic Republic of the Congo
11 Apr 2002
0
50
50
Costa Rica
7 Jun 2001
0
400
400
Croatia
21 May 2001
6000
700
6700
Ecuador
5 Feb 2002
1000
650
1650
Estonia
30 Jan 2002
6750
1100
7850
Fiji
29 Nov 1999
0
100
100
Gabon
20 Sep 2000
0
160
160
Gambia
28 Jun 2002
0
50
50
Ghana
20 Dec 1999
500
500
1000
Honduras
1 Jul 2002
0
650
650
Latvia
28 Jun 2002
7000
1100
8100
Lesotho
6 Sep 2000
0
100
100
Macedonia, The Former Yugoslav Republic
6 Mar 2002
11000
650
11650
of
Mali
16 Aug 2000
0
325
325
Mauritius
5 Mar 2002
0
100
100
Mongolia
11 Apr 2002
1000
725
1725
Namibia
25 Jun 2002
0
200
200
Niger
11 Apr 2002
0
110
110
Nigeria
27 Sep 2001
6000
800
6800
Panama
21 Mar 2002
1000
200
1200
Paraguay
14 May 2001
0
300
300
Peru
10 Nov 2001
1000
600
1600
Senegal
2 Feb 1999
500
900
1400
Sierra Leone
15 Sep 2000
0
250
250
Slovakia
11 Apr 2002
9000
950
9950
Slovenia
31 Dec 2001
5000
950
5950
South Africa
27 Nov 2000
6000
1450
7450
Tajikistan
5 May 2000
0
350
350
Trinidad and Tobago
6 Apr 1999
400
150
550
Uganda
14 Jun 2002
0
170
170
United Republic of Tanzania
20 Aug 2002
0
230
230
Uruguay
28 Jun 2002
1000
450
1450
Venezuela
7 Jun 2000
0
700
700
Yugoslavia, Federal Republic of
6 Sep 2001
1000
300
1300
Total (45 countries)
179453
24638
202088
* FMF is Foreign Military Financing ** IMET is International Military Education and Training.

S o u r c e s : D a t a r e g a r d i n g I C C m e m b e r s h i p s t a t u s i s f r o m t h e U n i t e d N a t i o n s w e b s i t e ,
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty10.asp. Requested military assistance for FY 2003
is from the Congressional Budget Justification, Foreign Operations, FY2003, U.S. State Department

CRS-13
The restriction does not appear to apply to any regional organizations that may
receive military assistance. The restrictions on military assistance to the countries
above will not apply to countries that agree to sign article 98 agreements with the
United States, or if the President waives the restrictions as justified with respect to
a particular country by national interests.
The following table provides a list of countries that have not ratified, but may
have signed the Rome Statute (not including NATO allies and other countries exempt
from the restriction) for which the Administration has requested military assistance
for FY 2003. The restriction on military assistance will not apply to these countries
unless they ratify the Rome Statute, irrespective of whether they sign an article 98
agreement with the United States or agree to withhold consent to the ICC’s
jurisdiction in the event a U.S. person is alleged to have committed a crime on the
territory of the recipient state.

CRS-14
FY2003 Requests for Military Assistance for Non-states Parties to the ICC
Country
Date Signed ICC
FY2003
FY2003 IMET**
Total FY2003
FMF*
($ in thousands)
Military Assistance
($ in thousands)
Albania
18 Jul 1998
5000
900
5900
Algeria
28 Dec 2000
0
550
550
Angola
7 Oct 1998
0
100
100
Armenia
1 Oct 1999
3000
900
3900
Azerbaijan
3000
750
3750
Bahamas
29 Dec 2000
100
0
100
Bahrain
11 Dec 2000
0
450
450
Bangladesh
16 Sep 1999
0
750
750
Burkina Faso
30 Nov 1998
0
50
50
Burundi
13 Jan 1999
0
50
50
Cameroon
17 Jul 1998
0
200
200
Cape Verde
28 Dec 2000
0
120
120
Chad
20 Oct 1999
0
130
130
Chile
11 Sep 1998
1000
600
1600
Comoros
22 Sep 2000
0
50
50
Congo
17 Jul 1998
0
110
110
Côte d’Ivoire
30 Nov 1998
0
50
50
Djibouti
7 Oct 1998
0
185
185
Dominican Republic
8 Sep 2000
320
0
320
El Salvador
2500
900
3400
Equatorial Guinea
0
50
50
Eritrea
7 Oct 1998
500
400
900
Ethiopia
500
500
1000
Georgia
18 Jul 1998
7000
1200
8200
Guatemala
0
350
350
Guinea
7 Sep 2000
0
250
250
Guinea-Bissau
12 Sep 2000
0
75
75
Guyana
28 Dec 2000
400
275
675
Haiti
26 Feb 1999
400
0
400
India
50000
1000
51000
Indonesia
0
400
400
Jamaica
8 Sep 2000
700
600
1300
Kazakhstan
3000
1000
4000
Kenya
11 Aug 1999
1500
600
2100
Kyrgyzstan
8 Dec 1998
4000
1100
5100
Loas
0
100
100
Lebanon
0
700
700
Lithuania
10 Dec 1998
75000
1100
76100
Madagascar
18 Jul 1998
0
170
170
Malawi
2 Mar 1999
0
360
360
Malaysia
0
800
800
Maldives
0
150
150
Malta
17 Jul 1998
1000
300
1300
Mauritania
0
100
100
Mexico
7 Sep 2000
0
1250
1250
Republic of Moldova
8 Sep 2000
1500
900
2400
Morocco
8 Sep 2000
5000
1500
6500
Mozambique
28 Dec 2000
0
215
215
Nepal
3000
500
3500
Nicaragua
500
400
900
Oman
20 Dec 2000
20000
750
20750
Pakistan
50000
1000
51000

CRS-15
Country
Date Signed ICC
FY2003
FY2003 IMET**
Total FY2003
FMF*
($ in thousands)
Military Assistance
($ in thousands)
Papua New Guinea
0
240
240
Philippines
28 Dec 2000
20000
2400
22400
Russian Federation
13 Sep 2000
0
800
800
Rwanda
0
150
150
Samoa
17 Jul 1998
0
120
120
Sao Tome and Principe
28 Dec 2000
0
100
100
Saudi Arabia
0
25
25
Seychelles
28 Dec 2000
0
100
100
Solomon Islands
3 Dec 1998
0
150
150
Sri Lanka
0
350
350
Suriname
250
150
400
Swaziland
0
100
100
Thailand
2 Oct 2000
200
1750
1950
Togo
0
100
100
Tonga
0
125
125
Tunisia
5000
1500
6500
Turkmenistan
700
450
1150
Ukraine
20 Jan 2000
4000
1700
5700
Uzbekistan
29 Dec 2000
8750
1200
9950
Vanuatu
0
100
100
Vietnam
0
100
100
Yemen
28 Dec 2000
2000
650
2650
Zambia
17 Jul 1998
500
0
500
Total
282323
39303
319623
* FMF is Foreign Military Financing ** IMET is International Military Education and Training.
Sources: Data regarding ICC membership status is from theUnited Nations website,
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty10.asp.
Requested military assistance for FY 2003 is from the Congressional Budget Justification, Foreign
Operations, FY2003, U.S. State Department
Authority to Free Persons from ICC.
Section 2008 authorizes the President to use “all means necessary and
appropriate” to bring about the release of covered United States and allied persons,44
upon the request of the detainee’s government, who are being detained or imprisoned
by or on behalf of the ICC. The Act does not provide a definition of “necessary and
appropriate means” to bring about the release of covered persons, other than to
exclude bribes and the provision of other such incentives. Section 2008 also
authorizes the President to direct any federal agency to provide legal representation
and other legal assistance, as well as any exculpatory evidence on behalf of covered
U.S. or allied persons who are arrested, detained, investigated, prosecuted or
44“Covered allied persons” includes military personnel, elected or appointed officials, and
other persons working for a NATO country or a major non-NATO ally, “so long as that
government is not a party to the International Criminal Court and wishes its officials and
other persons working on its behalf to be exempted from the jurisdiction of the [ICC].”
Section 2013(3). Covered allies currently could include persons from the Czech Republic,
Turkey, Egypt, Israel, Japan, the Republic of Korea, and Taiwan. (Of these countries, only
Turkey, Taiwan, and Japan have not signed the Rome Statute.)

CRS-16
imprisoned by, or on the behalf of the ICC. Section 2008 further permits the
government to appear before the ICC in defense of the interests of the United States.
Waivers and Exceptions.
The ASPA contains multiple waiver provisions and exceptions. Section
2003(a)-(b) provides for presidential waivers of sections 2005 and 2007 (restriction
on U.S. participation in U.N. peacekeeping missions and prohibition on military
assistance) if the President certifies to Congress that the ICC has agreed not to seek
to assert jurisdiction over any covered U.S. or allied person with respect to actions
undertaken by such person in an official capacity. This blanket waiver may be
extended for successive periods of one year if the ICC abides by the agreement. As
described above, section 2005 may be waived under its own terms with respect to
specific peacekeeping missions if satisfactory protection can be achieved through
U.N. Security Council measures or by agreement with other participants, or if the
national interests of the United States justify participation in the mission. Section
2007 also contains its own waiver provision, allowing the President to provide
military assistance to a particular country if he determines and reports to Congress
that it is in the national interest or that the country in question has agreed not to
surrender U.S. persons to the ICC. (NATO and major non-NATO allies are excepted
from the prohibition in section 2007).
If the ICC enters into and abides by an agreement under sections 2003(a) or (b),
section 2003(c) permits the President to waive sections 2004 and 2006 (prohibiting
cooperation with the ICC and directing the President to implement measures to
prohibit the transfer of classified information) with respect to specific cases before
the ICC. To waive the prohibitions and allow cooperation with the ICC, the
President must first certify to Congress that there is reason to believe the accused is
guilty as charged, it is in the national interest to waive the prohibitions, and that the
investigation and prosecution by the ICC will not result in the investigation or arrest
of any covered U.S. or allied persons with respect to any actions undertaken by them
in an official capacity. It is somewhat unclear what a waiver of section 2006 would
entail, in that the section does not directly prohibit any action. Instead, it directs the
President to implement rules to prevent transfer of classified national security
information and law enforcement information to the ICC, and to prevent indirect
transfer of material related to matters under investigation or prosecution by the ICC
to the United Nations and ICC member countries unless assurances are received from
the recipient that such information will not be made available to the ICC. A waiver
of section 2006 could be interpreted to mean that the President’s requirement to
implement the rules is waived, or that the requirement to obtain assurances from
recipients other than the ICC is waived, or that the rules themselves may be waived
with respect to a particular case.
Section 2011 provides an exception for certain presidential authorities, stating
that the restrictions on cooperation with the ICC (section 2004) and the requirement
for procedures to protect certain sensitive information (section 2006) do not apply to
“any action or actions with respect to a specific matter taken or directed by the
President on a case-by-case basis in the exercise of the President’s authority as
Commander in Chief of the Armed Forces of the United States under article II,
section 2 of the United States Constitution or in the exercise of the executive power

CRS-17
under article II, section 1 of the United States Constitution.”45 The section would
require the President to notify Congress within 15 days of the action, unless such
notification would jeopardize national security. It further clarifies that “nothing in
[the] section shall be construed as a grant of statutory authority to the President to
take any action.” Section 2012 prohibits delegation of the authorities vested in the
President by sections 2003 (waiver provision) and 2011(a) (constitutional
exception).46
Inasmuch as sections 2004 and 2006 are already subject to presidential waiver
under section 2003(c) in the case of the investigation or prosecution of a “named
individual,” it appears that this section is drafted to avoid possible conflicts of the
separation of powers between the President and Congress. In the event that the
President takes the position that the prohibitions of sections 2004 and 2006 infringe
upon his constitutional authority in certain cases, he might assert that Congress has
no power even to require a waiver under section 2003. Section 2011 appears to
ensure notification of Congress, at least at some point after the action has been taken,
regardless of whether the President believes that sections 2004 and 2006 impinge his
constitutional authority.
The effect of section 2011 is not entirely clear, depending as it does on the
interpretation of the President’s executive powers under article II, section 1 of the
Constitution and his authority as Commander in Chief of the Armed Forces.
Interpreted broadly, the constitutional executive power includes the power to execute
the law, meaning the execution of any law, whether statutory or constitutional, or
even international law. Such an interpretation would seem to render sections 2004
and 2006, as well as the waiver provision of section 2003(c), largely superfluous.47
Interpreted narrowly, the executive authorities cited above could refer to those
powers which the President does not share with Congress. Under a narrow
interpretation, Congress would be deemed to be without authority to regulate such
actions in any event, in which case it would appear to make little sense to restrict its
application to sections 2004 and 2006. The language could be construed by a court
to imply a waiver authority apart from the restrictions outlined in section 2003.
Section 2015 provides clarification with respect to assistance to international
efforts. It states:
45 P.L. 107-206 § 2011.
46 It is unclear what authority is meant with respect to section 2011(a), since 2011 does not
vest any authority in the President. See id. § 2011(c). Perhaps section 2012 should be
interpreted to prohibit delegation of the authorities to which sections 2004 and 2006 do not
apply under section 2011.
47Section 2004 restricts the conduct of federal and state agencies and courts. Therefore, the
exception in section 2011 could not be invoked with respect to state courts and other non-
federal entities. Section 2006 applies only to the President, directing him to implement
procedures to safeguard certain information from the ICC; a broad interpretation of section
2011 would appear to render section 2006 a nullity. Perhaps section 2011 is meant to
provide the President authority to suspend regulations promulgated under section 2006 with
respect to certain cases under the jurisdiction of the ICC.

CRS-18
Nothing in this title 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 Qaeda, leaders of Islamic Jihad, and
other foreign nationals accused of genocide, war crimes or crimes against
humanity.
This language would appear to have the effect of limiting the prohibitions in section
2004 to cases in which the ICC prosecutes non-U.S. citizens for the crimes currently
under the jurisdiction of the ICC. It could also eliminate the restrictions on
participation in peacekeeping missions or provision of military assistance where such
participation or aid could be interpreted to further an international effort to prosecute
the named crimes. There is no definition of “foreign national” in the ASPA; its use
in section 2015 could lead to a conflict with sub-sections (d) and (f) of section 2004
as they apply to permanent resident aliens.
Reporting Requirements.
In addition to the congressional notifications required by some of the waiver
authorities described above, the ASPA encourages the President to submit, within six
months of its date of enactment, a report for each military alliance to which the
United States is a party assessing the command arrangements they entail and the
degree to which such arrangements may place U.S. servicemembers under the
command or control of foreign officers subject to the jurisdiction of the ICC.48 No
later than August 2, 2003, the President should submit a report describing possible
modifications to such alliance command arrangements that would reduce the risks
to U.S. servicemembers identified in the first report.49
Prospective Legislation
The Administration may also ask Congress to pass legislation to close
jurisdictional gaps in U.S. criminal law in order to ensure U.S. territory does not
become a safe haven for those accused of genocide, war crimes, and crimes against
humanity.50 The War Crimes Act of 1996,51 for example, establishes U.S. federal
jurisdiction to punish war crimes, as defined in international treaties to which the
United States is a party, but only when perpetrated by or against U.S. nationals.
Likewise, the Genocide Convention Implementation Act of 1987 prohibits acts that
would constitute genocide under the Rome Statute, except that the U.S. Code covers
only conduct committed by a U.S. national or conduct committed within the United
States.52 Some observers have expressed concern that war criminals or perpetrators
of genocide from other countries could seek refuge in the United States from
48 P.L. 107-206, § 2009.
49Id.
50See Grossman, supra note 4.
5118 U.S.C. § 2441.
52Genocide Convention Implementation Act of 1987, Pub. L. No. 100-606, 102 Stat. 3045
(codified at 18 U.S.C. §§ 1091-93).

CRS-19
extradition to and prosecution by the ICC. However, the exception in section 2013
of the ASPA, which allows U.S. entities to cooperate with the ICC in the case of
foreign nationals accused of war crimes, may obviate the need for such legislation.
Some have suggested that changes in U.S. statutes to broaden the jurisdiction
of federal courts to cover all crimes over which the ICC might assert jurisdiction
could enhance the implementation of complementarity by precluding a finding by the
ICC that the United States is “unable” to prosecute one of its citizens.53 For the most
part, war crimes committed by U.S. persons are covered by the War Crimes Act,
although there may be some acts covered by the Rome Treaty that are not explicitly
prohibited by U.S. law. Also, there is no U.S. statute codifying crimes against
humanity as such. U.S. criminal law prohibits most of the crimes enumerated under
the Rome Statute as possible crimes against humanity, as long as they are committed
within the United States or by military personnel.54 Under current law, acts that
could constitute crimes against humanity committed by U.S. civilians overseas
generally are not triable in U.S. civil or military courts unless they involve torture or
certain acts of international terrorism.55 In the event a U.S. citizen is alleged to have
committed such an act, the United States may not be deemed able to investigate and
prosecute the alleged crime, a prerequisite for asserting complementarity.
Implications of the ICC for the United States as a
Non-member
Now that the Rome Statute has entered into force, the Preparatory Commission
will cease to exist after the first meeting of the Assembly of States Parties September
3 - 10, 2002. U.S. eligibility to participate on an equal basis with other states in
setting some of the ground rules for the ICC will have ended. The Assembly of States
Parties will take over as the governing body to oversee the implementation and
possible amendment of the Rome Statute. Review Conferences are an alternative
forum for considering amendments to the Statute; an initial Review Conference is to
be convened in July of 2009, seven years after the Statute has entered into effect.56
Thereafter, Review Conferences may be convened from time to time by the U.N.
53See Douglass Cassel, Empowering United States Courts to Hear Crimes Within the
Jurisdiction of the International Court
, 35 NEW ENG. L. REV. 421, 437 (2001); Robinson
O. Everett, American Servicemembers and the ICC, in THE UNITED STATES AND THE
INTERNATIONAL CRIMINAL COURT 137, 142 (Sarah B. Sewall and Carl Kaysen, eds. 2000).
54See Douglass Cassel, Empowering United States Courts to Hear Crimes Within the
Jurisdiction of the International Court
, 35 NEW ENG. L. REV. 421, 429 (2001).
55See id. n.39 (listing relevant crimes over which U.S. courts have extraterritorial
jurisdiction). Additionally, U.S. courts have jurisdiction to try criminal offenses committed
by persons employed by or accompanying the armed forces overseas, or ex-servicemembers
who committed a crime overseas, if such crime would be punishable by imprisonment for
more than one year if it had committed within the territorial jurisdiction of the United States.
18 U.S.C. § 3261.
56Rome Statute, supra note 1, art. 123.

CRS-20
Secretary-General upon request by a majority of the states parties.57 As a non-party,
the United States will have no vote in either body. However, it will remain eligible
to participate in both the Assembly and in Review Conferences as an observer.58
Observer Role
The role of observers ultimately will be defined by the rules of procedure
adopted for the two bodies.59 If the current finalized draft rules are adopted,
observers will be entitled to participate in the deliberations of the Assembly and any
subsidiary bodies that might be established. Observer states will receive notifications
of all meetings and records of Assembly proceedings on the same basis as states
parties. They will not, however, be permitted to suggest items for the agenda or to
make motions during debate, such as points of order or motions for adjournment.
Thus, the United States may be able to participate substantially in Assembly debates
as well as proffer and respond to proposals, even if it does not become a party to the
Statute.60 The United States may also use its position at the United Nations to
communicate to the Assembly of States Parties.61
As noted, the United States will not be able to vote in these bodies if it does not
ratify the Rome Statute. It could not nominate U.S. nationals to serve as judges or
cast a vote in elections for judges or the Prosecutor (or for their removal). It could
not vote on the ICC’s budget. It could not vote on the definition of the crime of
aggression or its inclusion within the jurisdiction of the ICC, when the matter is
considered at first Review Conference, or on any other amendment to the Rome
Statute.
The United States, as a non-party, will have no right itself to refer situations to
the Prosecutor for investigation; as a Permanent Member of the Security Council,
57Id. art. 23.
58 Id. arts. 112 and 123. States which have signed the Statute or the Final Act are eligible
to participate as observers in both bodies. The Administration’s notification of intent not
to ratify the Statute should have no effect on eligibility, although it may signal an intent not
to participate. The United States did not participate at the final meeting of the Preparatory
Commission in early July, possibly signaling the intent of the Administration to forego
participation as an observer.
59U.N. Doc., PCNICC/2001/1/Add.4, Draft Rules of Procedure of the Assembly of States
Parties (2002) (hereinafter “Draft Assembly Rules”).
60Unlike the previous administration, the Bush Administration has not participated actively
in Preparatory Commission meetings, suggesting that the Administration does not envision
playing an active role as observer at the Assembly of States Parties.
61The United Nations has a standing invitation to participate as an observer. Draft Assembly
Rule 35. It may also propose items for the agenda. Draft Assembly Rule 11. Finally, the
U.N. may provide funding for the ICC, in particular with respect to cases referred by the
Security Council. Rome Statute, supra note 1, art. 115; see also U.N. Doc.,
PCNICC/2001/1/Add. 1,Draft Relationship Agreement between the Court and the United
Nations.

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however, it could seek to influence referrals by the Security Council.62 Similarly, it
could still participate in Security Council requests to the Prosecutor to defer an
investigation or prosecution63 and to the Pre-Trial Chamber to review a decision of
the Prosecutor not to investigate or prosecute.64 As a non-party to the treaty, the
United States could, but would not be obligated to, cooperate with any ICC
investigation and prosecution;65 and under the Statute, the United States could, but
would not be obligated to, arrest a person named in a request for provisional arrest
or for arrest and surrender from the ICC.66 The United States would also retain the
right not to provide information or documents the disclosure of which would
prejudice its national security interests67 and to refuse to consent to the disclosure by
a state party of information or documents provided to that state in confidence.68
Finally, as a non-party, the United States would not be under any obligation to
contribute to the budget for the ICC, except, perhaps indirectly, to the extent that the
U.N. General Assembly U.N. regular budget might include ICC support.69
Foreign Policy Implications
Perspectives differ on the impact of the ICC on U.S. interests, as it begins to
operate. Some see the ICC as a fundamental threat to the U.S. armed forces, civilian
policy makers, and U.S. defense and foreign policy.70 Others see it as a valuable
foreign policy tool for defining and deterring crimes against humanity, a step forward
in the decades-long U.S. effort to end impunity for egregious mass crimes. Debate
over the ICC has brought out a tension between enhancing the international legal
justice system and encroaching on what some countries perceive as their legitimate
use of force. The review by the International Criminal Tribunal for the Former
Yugoslavia (ICTY) of allegations that NATO bombing in Kosovo might be deemed
a war crime is illustrative of this tension. Many opponents of the ICC were outraged
that the issue was even considered. They questioned the legitimacy of the tribunal’s
actions, and their anger was not assuaged by the Tribunal’s ultimate decision that
there was “no basis for opening an investigation into any of those allegations or into
other incidents relating to NATO bombing.”71 While opponents of the ICC interpret
62Rome Statute, supra note 1, art. 13. Non-parties might also be able to provide information
to enable the Prosecutor to initiate a self-referred investigation, but would have no official
role in advocating prosecution.
63Id. art. 16.
64Id. art. 53.
65Id. arts. 86, 87, and 93.
66Id. arts. 59 and 89.
67Id. art. 72.
68Id. art. 73.
69Id. art. 115.
70See Lee A. Casey, The Case Against the International Criminal Court, 25 FORDHAM INT’L
L.J. 840, 849-50 (2002).
71See Final Report to the Prosecutor by the Committee Established to Review the NATO
(continued...)

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this event as an indication that the ICC is likely to pursue spurious and politically
motivated cases against U.S. citizens, proponents of the ICC see it as illustrating that
similar unfounded allegations would be dismissed by the ICC Prosecutor.
Another consideration is the practical effect that the U.S. position will have on
the ICC itself. Because the ICC relies largely on states parties to provide mechanisms
and manpower for arresting suspects and enforcing verdicts of the ICC, it has been
argued that the lack of U.S. participation in the ICC may seriously impair the ICC’s
ability to function. Those who believe the ICC is a fundamental threat to U.S.
foreign and defense policy may welcome this outcome; while ICC supporters may
argue that an ineffective court could serve the interests of human rights abusers,
ensuring impunity and decreasing the likelihood of future ad hoc tribunals.
The United States has enjoyed a long reputation for leadership in the struggle
against impunity and the quest for universal human rights and the rule of law.
Human rights organizations have expressed concern that U.S. refusal to ratify the
Rome Statute, coupled with any actions that might undermine the ICC, could cause
the United States to lose the moral high ground and damage its influence world-wide,
including its ability to influence the development of the law of war.72 The perceived
U.S. willingness to hold U.N. peacekeeping missions hostage to U.S. demands for
immunity from the ICC may deepen the rift between the United States and allies that
support the ICC. The withholding of military assistance to members of the ICC may
also be seen as an effort to coerce countries to refuse to ratify the Rome Statute or to
sign an article 98 agreement, which could appear to some as undermining the ICC
and negating the Administration’s stated intent to respect the decisions of other
countries to join the ICC. By demanding special treatment in the form of immunity
from the ICC, the United States may be seen as bolstering the perception of its
unilateral approach to world affairs and its unwillingness to abide by the same laws
that apply to other nations. This perception could undermine U.S. efforts at
coalition-building to gain international support for the present war against terrorism
as well as future international endeavors.
Others argue that the perception of U.S. commitment to the rule of law has little
effect on countries where human rights abuses are most rampant. Despots like
Cambodia’s Pol Pot or Iraq’s Saddam Hussein have not weighed possible future legal
ramifications before committing massive crimes.73 Under this view, the
establishment of the ICC might have the unintended effect of hardening the resolve
71(...continued)
Bombing Campaign Against the Federal Republic of Yugoslavia, available at
http://www.un.org/icty/pressreal/nato061300.htm.
72See Major Eric S. Kraus and Major Mike O. Lacy, Utilitarian vs. Humanitarian: The
Battle over the Law of War
, PARAMETERS, Jul. 1, 2002, available at 2002 WL 18222339.
(commenting that U.S. refusal to ratify Protocol I to the Geneva Conventions, the treaty
banning antipersonnel landmines, and the Rome Statute appear to be diminishing U.S.
influence on the development of customary international law).
73The International Criminal Court: Hearing Before the House Committee on International
Relations
, 106th Cong. 4 (2000) (prepared testimony of John Bolton, Senior Vice President,
American Enterprise Institute).

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of ruthless tyrants who may feel they have nothing to gain by giving up their power
to more democratic regimes if they fear prosecution for the crimes they committed
while in power. From this perspective, in terms of curbing human rights abuses, it
does not matter whether the U.S. ratifies the Rome Statute, other than perhaps to
provide support to an accused dictator’s argument challenging the legitimacy of the
ICC. According to this viewpoint, the costs to the United States appear to outweigh
the benefits.
Strategy for Precluding ICC Prosecution of U.S. Troops and
Officials

On July 12, 2002, in response to the U.S. veto of the extension of peacekeeping
operations in Bosnia, the U.N. Security Council adopted a resolution requesting a
blanket deferral of prosecutions by the ICC of peacekeepers from states not parties
to the Rome Statute for a period of one year. Resolution 1422 provides, in pertinent
part:
Acting under Chapter VII of the Charter of the United Nations,
1.
Requests, consistent with the provisions of Article 16 of the Rome Statute, that the
ICC, if a case arises involving current or former officials or personnel from a
contributing State not a Party to the Rome Statute over acts or omissions relating to
a United Nations established or authorized operation, shall for a twelve-month period
starting 1 July 2002 not commence or proceed with investigation or prosecution of any
such case, unless the Security Council decides otherwise;
2.
Expresses the intention to renew the request in paragraph 1 under the same
conditions each 1 July for further 12-month periods for as long as may be necessary;
3.
Decides that Member States shall take no action inconsistent with paragraph 1 and
with their international obligations;
4.
Decides to remain seized of the matter.74
The resolution appears to fall short of the President’s original proposal, which would
have provided permanent immunity for U.S. troops and officials from the jurisdiction
of the ICC. Opponents of the original proposal objected that the U.N. Security
Council does not have the authority to “rewrite” international treaties. The
compromise invokes article 16 of the Rome Statute, which provides:
No investigation or prosecution may be commenced or proceeded with under this
Statute for a period of 12 months after the Security Council, in a resolution
adopted under Chapter VII of the Charter of the United Nations, has requested
the Court to that effect; that request may be renewed by the Council under the
same conditions.
Although some opponents of the U.S. position had argued that article 16 was
intended to be invoked only on a case-by-case basis, the language of the article does
not expressly state such a requirement. Therefore, Resolution 1422 appears to be
74S/Res/1422 (2002), available at http://www.un.org/Docs/scres/2002/res1422e.pdf.

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consistent with the Rome Statute. The resolution defers ICC action for one year; it
does not provide absolute immunity for actions occurring during the deferral period.
Therefore, should the Security Council choose not to extend the deferral in
subsequent years, it appears that the ICC could then investigate and prosecute any
purported crimes under its subject matter jurisdiction that occurred at any time after
the Rome Statute’s entry into force, subject to other provisions of the Rome Statute.
In the event an American citizen is alleged to have committed a crime under the
jurisdiction of the ICC, but whose prosecution has been deferred by the resolution,
the United States may find itself in a somewhat weakened negotiating position at the
Security Council, inasmuch as inaction by the Council would allow the deferral to
expire. Also, it does not provide protection to U.S. persons engaging in
peacekeeping or military operations not authorized or established by the U.N.
The United States may seek additional options for achieving protection for U.S.
troops, within or outside U.N. peacekeeping arrangements, by concluding agreements
similar to the status-of-forces agreements (SOFA) routinely negotiated where U.S.
troops are stationed abroad. The United States has so far concluded bilateral
agreements with Romania and Israel whereby each signatory promises that it will not
surrender citizens of the other signatory to the ICC, unless both parties consent in
advance to the surrender. The Department of State is seeking to conclude many such
agreements.75
This tactic has been criticized by some as an effort to undermine the ICC,76 but
supporters of the policy note that such agreements providing for immunity in foreign
and international courts are not unusual. For example, the 19-member International
Security Assistance Force (ISAF), a joint force authorized by the U.N. Security
Council currently headed by Turkey to provide assistance to the interim government
in Afghanistan, included a clause providing immunity for participants in its Military
Technical Agreement with the interim government.77 Furthermore, supporters point
out, the agreements are based on and consistent with article 98 of the Rome Statute,
and therefore cannot be said to undermine the ICC.
75See Press Release, United States Department of State, U.S. and Romania Sign Article 98
Agreement (Aug. 1, 2002), available at http://www.state.gov/r/pa/prs/ps/2002/12393.htm.
76See Press Release, Human Rights Watch, United States Efforts to Undermine the
International Criminal Court, available at http://www.iccnow.org/html/hrw20020802.pdf.
77See Colum Lynch, Deal Gave Europe’s Troops Immunity, INT’L HERALD TRIB., June 20,
2002, at A1. Section 1.4 of Annex A to the MTA provides:
The ISAF and supporting personnel, including associated liaison personnel, will be
immune from personal arrest or detention. ISAF and supporting personnel, including
associated liaison personnel, mistakenly arrested or detained will be immediately handed
over to ISAF authorities. The Interim Administration agree that ISAF and supporting
personnel, including associated liaison personnel, may not be surrendered to, or otherwise
transferred to the custody of, an international tribunal or any other entity or State without
the express consent of the contributing nation. ISAF Forces will respect the laws and
culture of Afghanistan.
The text of the agreement may be downloaded from the ISAF website at
http://www.operations.mod.uk/fingal/index.htm.

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The use of such agreements with host countries does not provide absolute
immunity from the ICC. They would bind only countries that choose to sign, and
would have the effect only of preventing the host nation from surrendering an
accused to the ICC for prosecution. While the Rome Statute gives some discretion
to states parties to honor their international obligations applicable to extradition of
persons who are identified in an ICC request for surrender,78 there does not appear
to be a provision for accused persons or their states of nationality to challenge the
jurisdiction of the ICC based on the violation of a bilateral agreement. Therefore,
states parties to the Rome Statute are not precluded from entering into SOFAs that
provide for immunity of foreign troops from surrender, but if the ICC were
nevertheless to gain custody over the accused through other means, its jurisdiction
may not be affected by the agreement.
Another option might be to implement a policy of investigating, and if
warranted, prosecuting, all crimes under the ICC jurisdiction alleged to be committed
by a U.S. person, thus preempting the ICC through application of the
complementarity principle. Such a policy, coupled with changes in U.S. statutes to
broaden the jurisdiction of federal courts to cover all relevant crimes, could further
insulate U.S. citizens from the reach of the ICC. The United States could seek to
further enhance its reputation for conducting fair and credible investigations and
trials of suspected war criminals, as well as perpetrators of crimes against humanity
or genocide, through the use of consistent procedures that are as open as security
considerations permit. Such a practice may help to overcome any charges that a U.S.
investigation or prosecution of an accused is not “genuine” for the purposes of
complementarity.
Finally, some have argued that a policy of cooperation with the ICC in the
prosecution of persons accused of crimes that the United States agrees amount to
“the most serious crimes of concern to the international community”79 would enhance
the reputation of the United States as a promoter of human rights and the rule of law.
Such a policy could take the form of passive non-interference with the ICC to active
assistance, including working from within the U.N. Security Council to refer cases
to the ICC. By actively keeping the Security Council involved in the referal of cases,
some of the predicted problems with referrals by states parties or by the prosecutor
could be minimized. On the other hand, some argue a cooperative posture with
respect to the ICC in the case of foreigners while pursuing immunity for U.S. citizens
would be perceived as a double standard.
78See Rome Statute, supra note 1, arts. 97 & 98.
79Id. art. 5(1).