International Justice
The International Criminal Court:

Update on the American Servicemembers Protection Act

Last December, we issued a call for action in response to the U.S. Senate's adoption of Senator Jesse Helms' anti-ICC amendment, the American Servicemembers Protection Act (ASPA). There have been recent, positive developments on this issue.

Passed on December 7, 2001 by a 78-21 vote, the Helms' ASPA amended the Defense Department Appropriations Act of 2002. It prohibited any U.S. cooperation with the International Criminal Court and authorized the use of any means necessary, including force, to secure the release of Americans or other "allied persons" from ICC detention. It is because of this provision that it has been dubbed "The Hague Invasion Act". Helms' amendment provided for a Presidential waiver of the prohibition in certain limited circumstances.

In November 2001, Congressman Hyde was successful in having his anti-ICC amendment adopted by the House of Representatives to the House defense appropriations act. The Hyde amendment bars the use of defense funding for cooperation with the Court in the 2002 fiscal year.

While the House amendment applied only to Defense Department spending and to the 2002 fiscal year, the Senate version would have permanently altered U.S. relations with the Court. This past December, a House and Senate joint conference committee convened to reconcile the two Defense Appropriations Acts and decided to reject the Senate (Helms) version in favor of the House (Hyde) version.

Human Rights Watch remains opposed to the inclusion of any anti-ICC provisions in US law. However, the Hyde amendment, when compared to the Senate's Helms-sponsored legislation, is less drastic and will have less impact on the future effectiveness of the ICC. It will also expire at the end of the 2002 fiscal year. We therefore welcome the recent developments and are grateful to those who participated in our call to action.

In May 2001, the House had passed its own ASPA as an amendment to the Foreign Relations Authorization Act. This modification, proposed by DeLay, is the most restrictive of the three. It contains all the same prohibitions on cooperation with the ICC, authorization to invade a country to release an American from ICC detention and a punishment for those countries that do ratify the Rome Statute in the form of a prohibit on the provision of military aid (except for NATO and a few other major US allies). It does not contain any provision for Presidential waiver, tying the hands of future administrations without regard to the national interest. The Senate has not yet considered this legislation.

We expect that congressional opponents of the ICC will try again to raise this issue. Senator Helms may reintroduce his amendments to another piece of legislation in the Senate before his term expires in 2002 or the Senate might consider the De Lay amendment.