THE PROBLEM WITH THE AMERICAN SERVICEMEMBERS' PROTECTION ACT:
Why We Should Not Punish Countries That Participate In The International Criminal Court

Recently I attended a lecture at Harvard Law School given by Benjamin Ferencz, a former United States prosecutor at Nuremberg. Ferencz spoke about the importance of an International Criminal Court in today's global society.

Drawing on his own experience of prosecuting war criminals before an international tribunal, Ferencz also discussed the possibility of using such an international court to prosecute perpetrators of the terrorist attacks of September 11. He noted, however, that the United States has so far been opposed to participating in the ICC.

On a related point, Ferencz mentioned a recent piece of legislation that is floating around the floor of the U.S. Congress, known as the American Servicemembers' Protection Act (ASPA). Its most recent incarnation is sponsored by Senator Jesse Helms.

From its title alone, the Act sounds quite innocuous, and in fact, quite patriotic. The title, however, masks a perplexing and troubling reality. The ASPA would prohibit the United States from providing military assistance to countries that are or become members of the ICC, with the exception of NATO Allies and a few other nations.

On September 25, Assistant Secretary of State Paul Kelly sent a letter to Helms indicating the administration's support for the ASPA. On September 26, Helms attempted to attach a revised ASPA to the Defense Department Authorization Act. The amendment was defeated for procedural reasons, but it is expected that Helms will attempt to attach the ASPA to other legislation in the future.

Regardless of whether one believes the ICC is a good or bad idea, this legislation is unnecessary and harmful to U.S. national interests.

The ICC and the ASPA

On July 17, 1998, at an international conference in Rome, 120 countries voted to adopt the treaty that that outlined the creation of the ICC. Only seven countries voted against it (including China, Israel, Iraq, and the United States), and twenty-one abstained.

Before the court can be set up, sixty countries must ratify the treaty. By the end of 2000, 139 states had signed the treaty. As of November 1, 2001, 43 countries have ratified it.

With or without the ASPA, the ICC is likely to be established soon. Recently, the United Kingdom, our leading partner in the war on terrorism, became the forty-second country to ratify the ICC treaty. Within the past few weeks, Nigeria, the Central African Republic and Liechtenstein have ratified the ICC instrument, and several more ratifications are pending.

The required sixty ratifications are likely to be completed by sometime next year — and the ICC is unlikely to change that.

U.S. Objections to the ICC, and Why They Do Not Entail Support for the ASPA

Why did the U.S. refuse to adopt the treaty? In part, it was due to concerns that the ICC will be used to apprehend and prosecuted American government officials and military personnel overseas.

The ASPA has essentially the same rationale. After all, even if the U.S. does not itself participate in the ICC, the ICC could still try to assert jurisdiction over Americans abroad. Thus, the stated purpose of the ASPA is "to protect U.S. military personnel and other elected and appointed officials…against criminal prosecution by an international criminal court (ICC) to which the U.S. is not a party."

While this goal may seem attractive, the consequences of the bill are frightening — for rather than, for example, imposing trade sanctions, this bill would prohibit military assistance to most of the countries that join the ICC.

Not only would that put those countries in jeopardy, it could put our foreign policy — and national objectives — in jeopardy, too. In countries like Colombia or Sierra Leone, for example, this legislation could block U.S. military assistance intended to achieve key foreign policy objectives, such as fighting international drug trafficking and regional instability.

Moreover, in addition to its military sanctions provisions, the legislation endorsed by the State Department contains surreal 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.

The ASPA Will Damage Relationships with NATO and Other Allies

Even if the United States is opposed to its own membership in the ICC, it should not penalize other countries for their participation in such an international endeavor.

At the very time that the United States claims to be building an international coalition to fight terrorism, it should not be considering legislation that may leave the same countries that we have been courting without our military assistance on their home soil. Why should we expect other nations to help us when we appear unwilling to help them?

The ICC's stated goal is to hold accountable the perpetrators of crimes against humanity. The coalition of countries that support the ICC includes every member of the European Union, and nearly every major U.S. ally.

The majority of NATO members have already made a commitment to the ICC. Seventeen out of nineteen NATO states have signed the treaty. Six have already ratified it.

Accordingly, even though NATO allies are exempted from the ASPA, this legislation will further erode relations with them. It represents not just a disagreement about the ICC, but an obvious attempt to coerce other countries not to join — something NATO allies who support the Court will not appreciate.

And it is not just NATO allies that the ASPA will upset. ICC supporters include nearly every country the United States is seeking to enlist in its post September 11 anti-terrorist coalition. Nevertheless, the United States is sending a signal that it plans to punish many countries for joining the ICC.

The ASPA May Actually Harm Troops Abroad, Not Help Them

Will the ASPA at least achieve its goal of protecting U.S. service members abroad? Unlikely. Indeed, the hostility the ASPA may generate could well increase the possibility of politically motivated prosecutions of military personnel overseas

Currently, under international law, U.S. nationals and servicemembers are subject to the jurisdiction of other nations for offenses committed abroad. The ICC treaty, on the other hand, would allow the U.S. to exercise primary jurisdiction over its own citizens for these crimes, no matter where the offense was committed. According to the principle of complementarity, the ICC could intervene only when national courts were unable or unwilling to grant a fair trial to the accused.

The ICC also has high legal thresholds for crimes within its jurisdiction. To prove that a crime against humanity has been committed, the prosecutor must show that the act in question was committed as part of a widespread or systematic attack directed against a civilian population. The defendant must also have had knowledge of the purpose of the attack. War crimes must be committed as part of a plan or policy or as part of a large-scale commission of such crimes.

Given these standards, the ICC is unlikely to go after the U.S. soldiers the ASPA claims to protect. Certainly, the U.S. military is not tasked to implement plans or policies to carry out widespread, systematic attacks against civilian populations

The only real impact this legislation can have is to diminish the credibility of U.S. efforts to forge coalitions against terrorists, and to undermine future efforts to advance international justice — such as leading NATO in arrests of war criminals in the Balkans.

Cooperation With the ICC will Advances American Interests

Are there benefits to the United States of seeking to cooperate with the ICC even if the U.S. does not ratify the Rome Treaty? Definitely.

The ICC will serve important national interests of the United States, such as promoting respect for human rights. The existence of the ICC will also serve to deter those who would commit atrocities in the future, thereby reducing the need for U.S. military intervention.

Our acts of patriotism, no matter how sincere, can often be bumbling and misguided — as can our approaches to international cooperation. The ASPA is a misguided attempt at patriotism.