The Honorable Colin J. Powell
Secretary of State
U.S. Department of State
Washington, DC 20520

Dear Secretary Powell:

As you may know, Human Rights Watch has long supported the creation of the International Criminal Court as a tool that will strengthen respect for human rights around the world. We are well aware of the Bush Administration's concerns regarding the ICC, and understand that U.S. ratification of the Rome Treaty remains unlikely.

Nevertheless, we were profoundly concerned to learn of the State Department's support for the harsh, ill-conceived and ill-timed bill known as the American Servicemembers' Protection Act (ASPA), as expressed in a September 25th letter by U.S. Assistant Secretary of State for Legislative Affairs Paul Kelly to Senator Jesse Helms.

We understand that the Administration obtained waivers to some of the most onerous provisions of the bill, including those imposing sanctions on countries that ratify the ICC treaty. Nevertheless, Assistant Secretary Kelly's letter indicated not only support for this new version of the ASPA, but opposition to all conceivable alternatives - implying that the sanctions-based approach contained in that bill is indeed the Administration's preferred option.

If this not the case, then we urge you not to work for the adoption of this legislation. We also hope that the Administration's review of policy toward the ICC will soon make clear to the world a more constructive American approach to this emerging institution. Otherwise, the United States risks sending a signal that it is planning to punish dozens of countries for joining a coalition to hold accountable the perpetrators of crimes against humanity. Keep in mind that the coalition supporting the ICC includes every member of the European Union, virtually every major U.S. ally, and nearly every country the United States is seeking to enlist in the effort to bring to justice the perpetrators of the September 11th attacks. We sincerely hope that the message of the ASPA is not one you want to send to the world, particularly now.

In addition to its sanctions provisions, the legislation the State Department has endorsed also contains extraordinary language authorizing the President to use "all means necessary and appropriate" to bring about the release from captivity of U.S. or allied personnel detained or imprisoned by or on behalf of the ICC. At a time when allies in Europe and around the world are rallying to stand with the United States against a common threat, the State Department should not be embracing legislation that authorizes an invasion of the Netherlands. True, such a prospect may seem remote and even ridiculous. But that is all the more reason not to dignify it with an endorsement.

The passage of the ASPA in whatever form is unlikely to prevent the establishment of the ICC. Just today, the United Kingdom became the forty-second country to ratify the ICC treaty. In the last week Nigeria, the Central African Republic and Liechtenstein have ratified, and several more ratifications are imminent. The European Union has adopted a legally binding Common Position mandating its member states to accelerate the treaty's early entry into force "by raising the issues of the widest possible ratification, acceptance, approval or accession to the Rome Statute [...]." Indeed, the required sixty ratifications are likely to be completed by sometime next year.

Nor will adoption of the ASPA strengthen protections for U.S. service members in any practical way. Indeed, the hostility it may generate could well have the opposite effect for U.S. forces stationed overseas, increasing the possibility of politically motivated legal attacks in national courts. The only real impact this legislation can have is to diminish the credibility of U.S. efforts to forge coalitions against human rights abusers and to undermine future U.S. efforts to advance international justice in discrete cases, whether by leading NATO in arrests of war criminals in the Balkans, or bringing war crimes charges against Saddam Hussein.

We continue to believe that the United States can best address its concerns by staying engaged with allies in the process of establishing the court. That was the wisest course before September 11th. It is all the more imperative today, at a time when international cooperation to strengthen the rule of law has never been more important. We hope that is the course you and President Bush will choose, and we hope you will make that clear to those friends and allies of the United States who were troubled by the recent endorsement of the ASPA.


Sincerely,

Richard Dicker
Director
International Justice Program
Tom Malinowski
Washington Advocacy Director