The United States wage war on the ICC

The American Senate has massively voted Republican Jesse Helm’s proposal prohibiting the United States from co-operating with the International Criminal Court.

On last September 25, less than 15 days after the terrorist attacks on New York and Washington, the Bush administration sent a letter to the ultra conservative Senator Jesse Helms to notify its support to the anti-ICC proposal. This proposal aims to prohibit all military assistance to the States which have ratified the Rome Statute creating the future Court that will have jurisdiction to prosecute individuals suspected of war crimes, crimes against humanity and genocide.

No one could ignore that the proposal entitled "American Servicemembers’ Protection Act" (ASPA) existed as the sword of Damocles over the American Congress. Since the United States’ opposition noticed the day of the vote of the Rome Statute, no one could as well ignore that they will act to set up guarantees that no American nationals can be tried before the ICC.

Even if the ASPA still has to be voted by the House of Representatives before being implemented by President Bush, the Senators did the first step towards impunity of American nationals by adopting the act by 78 votes to 21.
When the United States call for a full coalition against international terrorism and launch a united offensive against Afghanistan, they show, once more, the ambiguity and the incoherence of their foreign policy.
This is even more regrettable with regard to the fact that the entry into force of the ICC is luckily a matter of months, with or without the United States!
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Background of the ASPA

The American Servicemembers’ Protection Act (ASPA) was presented on May 8-9, 2001 respectively before the House of Representatives and the Senate by Mr Delay and Mr Helms. In substance, this act:

1. Would prohibit any kind of American co-operation with the ICC.
2. Would prohibit any kind of military assistance with most of the States which have ratified the Rome Statute: as a general principle, the act states that, one year after the date on which the Rome Statute enters into force, no United States military assistance may be provided to the government of a country that is party to the ICC. However, the President may waive the prohibition to a particular country if he determines that it is important to the national interest of the United States. Thus, the non-assistance clause is not applicable to NATO member States, to essential allies even not NATO members (such as Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, New Zealand) as well as Taiwan.
3. Would restrict information communication dealing with national security to States that have ratified the ICC Statute.
4. Would oppose to the American participation to UN peace keeping operations: It is stipulated that the President should use the voice and vote of the United States in the UN Security Council to ensure that each resolution of the Security Council authorising any peacekeeping operation under Chapter VI of the charter of the United Nations or peace enforcement operation under the chapter VII of the charter of the United Nations permanently exempts, at a minimum, members of the Armed Forces of the United States participating in such operation from criminal prosecution or other assertion of jurisdiction by the International Criminal Court for actions undertaken by such personnel in connection with the operation. The participation of American Armed forces would be allowed only if it occurs on the territory of a non State party.
5. Would allow the president to use "all means necessary and appropriate " to bring about the release of any person who is being detained or imprisoned by or at the request of the ICC, hence nicknamed: "Hague Invasion Act".

House leadership holds UN arrears repayment hostage in effort to force adoption of the ASPA
During the summer 2001 and until the events of 11 September, the congressmen at the origin of the act decide to tie the authorisation of the Senate concerning the payment of the American dues vis-à-vis the United Nations to the anti-ICC act. Immediately after, Kofi Annan, the UN Secretary-General demanded the United States to separate the two issues and not to take in hostage the payment of their contribution. On September 13, in the wake of last week’s terrorist attack, House leaders have dropped their demand that the Helms-DeLay American Servicemembers’ Protection Act (ASPA) be attached to any legislation that would authorize the release of $582 million in arrears to the UN. However, the ASPA is still in play!

The Bush government supports a revised ASPA legislation
On September 10, the anti-ICC act is revised to include presidential prerogatives permitting to lift some of the prohibitions provided by the ASPA. The Bush Administration sent a letter to Helms on September 25, which indicates their support for the revised version of ASPA in the amendment.

However, The current amendment is only slightly revised from its prior form. Much broader waivers are included for the President, which would allow him to lift certain prohibitions. Thus, the articles dealing with the prohibition to co-operate and to provide information relating to national security would be non applicable when the president, on a case by case basis, decide to act as Commander in chief of the Armed forces of the United States. Similarly, the restrictions to the participation of the American Armed forces to the peacekeeping operations and the prohibition to provide military assistance to the States which have ratified the ICC could be suspended by the president for one year. To do so, the President will have to make sure that the ICC will not have jurisdiction on American nationals and that they will not be arrested, detained nor jailed.

The time period of one year could be renewable if the president determines and reports to the Congress that the country has entered into an agreement with the United State preventing the ICC from proceeding against United States personnel present in such country.

28 November 2001, the ASPA progresses
On Wednesday, November 28, President Bush signed into law H.R. 2500, the Departments of Commerce, Justice, State, the Judiciary, and Related Agencies Appropriations Act, 2002. This legislation contains an amendment, Section 630 proposed by Senator Larry Craig (R-ID), that prohibits the use of appropriated funds for cooperation with, or assistance or other support to, the International Criminal Court (ICC) or its Preparatory Commission.
Upon signing, President Bush issued a signing statement which contained the following paragraphs on Section 630 (the Craig Amendment) and on other sections of the act:
"While section 630 clearly reflects that the Congress agrees with my Administration that it is not in the interests of the United States to become a party to the ICC treaty, I must note that this provision must be applied consistent with my constitutional authority in the area of foreign affairs, which, among other things, will enable me to take actions to protect U.S. nationals from the purported jurisdiction of the treaty.
"In addition, several other provisions of the Act unconstitutionally constrain my authority regarding the conduct of diplomacy and my authority as Commander in Chief. I will apply these provisions consistent with my constitutional responsibilities."

This statement indicates that the President has chosen to interpret the Craig amendment as not prohibiting U.S. negotiation at the Preparatory Commission meetings of the ICC.

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