US Legal Limitations to Cooperation with the ICC

Starting in 1999, ICC opponents slipped restrictions on U.S. cooperation with and funding for the ICC into the annual bills authorizing and appropriating federal funds. Upon enactment of the American Servicemembers' Protection Act (ASPA) in August 2002, ICC opponents refrained from including additional restrictions through other bills until 2004. However, as part of FY2005 Consolidated Appropriations, the Nethercutt Amendment was enacted to prohibit the U.S. from providing Economic Support Fund (ESF) aid to ICC member states unless certain provisions are met. Currently, only two laws regulating the U.S. relationship with the ICC include standing language on the ICC: ASPA and the FY2000 Consolidated Appropriations; the Nethercutt Amendment is subject to expire unless renewed.

Consolidated Appropriations FY2000
HR 3194 became Public Law 106-114, Sections 705-706
November 29, 1999

• Prohibits any funds from being "obligated for use by, or for support of, the International Criminal Court."

• Prohibits use of any funds to extradite a U.S. citizen to a country that will re-extradite the citizen to the ICC.

• This is standing language and will remain law until removed.

Hyde Amendment
House Amendment 408 to the FY2002 Department of Defense Appropriations (HR 3338) became Public Law 107-117, Section 630
January 10, 2002

• No funds from the Defense Appropriations "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 ICC.

• This language was struck by Section 2014 of ASPA and is no longer law.

Foreign Relations Authorization Act FY2003
HR 1646 became Public Law 107-228
September 30, 2002

• No U.S. dues under the regular budget of the UN could fund the ICC through 2003.

• This language has expired and has not been renewed.

Craig Amendment
Senate Amendment 1537 to the FY2002 Commerce, Justice, State and Judiciary (CJSJ) Appropriations (HR 2500) became Public Law 107-77, Section 630.
November 28, 2002

• No funds appropriated by this act could be used "for cooperation with, or assistance or other support to, the International Criminal Court."

• This language expired upon the adoption of the FY2003 CJSJ Appropriations and has not been renewed.

American Servicemembers' Protection Act (ASPA)
Attached to the Supplemental Appropriations Act of 2002 (HR 4775), became public Law 107-206, Title II
August 2, 2002

• Limits cooperation with the ICC, including collaboration, extradition, support, funding and sharing of classified information.

• Prohibits U.S. participation in UN peacekeeping. Waivers: UN Security Council resolution for the mission exempts U.S. soldiers from ICC jurisdiction, countries involved have not accepted ICC jurisdiction, countries involved have signed Article 98 agreements with U.S. exempting U.S. soldiers, or U.S. national interests justify U.S. participation.

• Prohibits U.S. military assistance to ICC States Parties. Waivers: U.S. national interests justify continued funding, or the country signs an Article 98 agreement to exempt U.S. personnel present in the country. Exemptions: This prohibition does not apply to NATO countries, Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, New Zealand, Thailand, Bahrain, Kuwait and Taiwan.

• Authorizes the President "to use all means necessary and appropriate" to free U.S. officials, service members, and government employees detained by the ICC, as well as certain members of allied countries. This includes providing legal assistance and exculpatory evidence.

• Requires the President to review and modify alliance command arrangements to shield U.S. service members from ICC jurisdiction. (Note: It is unclear whether this requirement has been met, although the deadlines have passed.)

• Allows the President to cooperate or share intelligence information with the ICC on a case-by-case basis, if it is in the U.S. national security interest.

• Repeals Hyde Amendment.

• Dodd Amendment: "Nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosevic, Osama bin Laden, other members of Al Queda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity."

• Result: Due to waivers and the Dodd Amendment, this law does not bind the administration to take any concrete actions. However, the current administration has used this law to its fullest extent to counter and undermine the ICC abroad, and has even demanded more than the law requires (as with the scope of bilateral immunity agreements.)

• ASPA is a standing law that will not expire unless repealed or amended.

Nethercutt Amendment
Attached to FY2005 Foreign Operations, Export Financing, and Related Programs Appropriations Act (H.R. 4818), became Public Law 108-447 Section 574
December 8, 2004

• Prohibits the United States from providing Economic Support Funds (ESF) to countries that are International Criminal Court members unless those countries have signed a bilateral immunity agreement (BIA) with the United States agreeing not to allow the ICC to proceed with prosecution against U.S. nationals found in those countries. Waiver: Presidential waivers may be invoked for NATO, key non-NATO allies or other countries determined to be of importance to national interests. Exemptions: Countries eligible for U.S. aid under the Millennium Challenge Act of 2003 are exempt from the Nethercutt Amendment.

Texts of Laws

Consolidated Appropriations FY2000
(Public Law 106-113)
SEC. 705. RESTRICTION RELATING TO UNITED STATES ACCESSION TO THE INTERNATIONAL CRIMINAL COURT.

1. Prohibition.--The United States shall not become a party to the International Criminal Court except pursuant to a treaty made under Article II, section 2, clause 2 of the Constitution of the United States on or after the date of enactment of this Act.

2. Prohibition.--None of the funds authorized to be appropriated by this or any other Act may be obligated for use by, or for support of, the International Criminal Court unless the United States has become a party to the Court pursuant to a treaty made under Article II, section 2, clause 2 of the Constitution of the United States on or after the date of enactment of this Act.

3. International Criminal Court Defined.--In this section, the term "International Criminal Court" means 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.

SEC. 706. PROHIBITION ON EXTRADITION OR TRANSFER OF UNITED STATES CITIZENS TO THE INTERNATIONAL CRIMINAL COURT.

1. Prohibition on Extradition.--None of the funds authorized to be appropriated or otherwise made available by this or any other Act may be used to extradite a United States citizen to a foreign country that is under an obligation to surrender persons to the International Criminal Court unless that foreign country confirms to the United States that applicable prohibitions on re-extradition apply to such surrender or gives other satisfactory assurances to the United States that the country will not extradite or otherwise transfer that citizen to the International Criminal Court.

2. Prohibition on Consent to Extradition by Third Countries.--None of the funds authorized to be appropriated or otherwise made available by this or any other Act may be used to provide consent to the extradition or transfer of a United States citizen by a foreign country to a third country that is under an obligation to surrender persons to the International Criminal Court, unless the third country confirms to the United States that applicable prohibitions on re-extradition apply to such surrender or gives other satisfactory assurances to the United States that the third country will not extradite or otherwise transfer that citizen to the International Criminal Court.

3. Definition.--In this section, the term ``International Criminal Court'' has the meaning given the term in section 705(c) of this Act.

Hyde Amendment 
(Public Law 107-117)
SEC. 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.

Foreign Relations Authorization Act FY2003 
(Public Law 107-228)
SEC. 113. CONTRIBUTIONS TO INTERNATIONAL ORGANIZATIONS.
(c) Prohibition on Funding Other Framework Treaty-Based Organizations.--None of the funds made available for the 2002-2003 biennium budget under subsection (a) for United States contributions to the regular budget of the United Nations may be available for the United States proportionate share of any framework treaty-based organization, including the Framework Convention on Global Climate Change, the International Seabed Authority, and the International Criminal Court.

Craig Amendment 
(Public Law 107-77)
SEC .630. None of the funds appropriated or otherwise made available by this Act shall be available for cooperation with, or assistance or other support to, the International Criminal Court or the Preparatory Commission. This subsection shall not be construed to apply to any other entity outside the Rome treaty.

Nethercutt Amendment
(Public Law 108-447)
SEC. 574. LIMITATION ON ECONOMIC SUPPORT FUND ASSISTANCE FOR CERTAIN FOREIGN GOVERNMENTS THAT ARE PARTIES TO THE INTERNATIONAL CRIMINAL COURT

(a) None of the funds made available in this Act in title II under the heading `Economic Support Fund' may be used to provide assistance to the government of a country that is a party to the International Criminal Court and has not entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country.

(b) The President may, without prior notice to Congress, waive the prohibition of subsection (a) with respect to a North Atlantic Treaty Organization (`NATO') member country, a major non-NATO ally (including Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand), or Taiwan if he determines and reports to the appropriate congressional committees that it is important to the national security interests of the United States to waive such prohibition.

(c) The President may, without prior notice to Congress, waive the prohibition of subsection (a) with respect to a particular country if he determines and reports to the appropriate congressional committees that such country has entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country.

(d) The prohibition of this section shall not apply to countries otherwise eligible for assistance under the Millennium Challenge Act of 2003, notwithstanding section 606(a)(2)(B) of such Act.

American Servicemembers' Protection Act: Text and more information.