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Foreign Policy Collision: Revisiting the American Servicemembers' Protection Act of 2002

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In 2002, following the creation of the International Criminal Court, the United States passed the American Servicemembers' Protection Act of 2002. This law did two critical things. First, it provided for the defense of U.S. Personnel brought
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    Aaron J. AisenAugust 2011 [FOREIGN POLICY COLLISION:REVISITING THE AMERICANSERVICEMEMBERSPROTECTION ACT OF 2002]    1 Introduction On July 1, 2002, the Rome Statute of the International Criminal Court 1 (³Rome Statute´or ³Statute´) came into force and the International Criminal Court (³ICC´) was born. 2 The ICC isan international tribunal designed to deal with the most heinous violations of internationalhumanitarian law (IHL). 3 Although the United States was party to the negotiations of the RomeStatute and even signed the treaty, the U.S. Senate never ratified the treaty. Within a month of the ICC¶s creation, the United States Congress passed, and the President signed, the AmericanServicemembers¶ Protection Act of 2002 (³ASPA´ or ³the Act´). 4 ASPA, among other things, provided for the rescue of U.S. service personnel and officials (³U.S. Personnel´) brought beforethe ICC and restricted U.S. cooperation with the ICC and signatories of the Rome Statute. 5  Popularly dubbed the ³Hague Invasion Act,´ 6 this largely misunderstood law 7 served as both a real and symbolic reminder of the complex relationship the U.S. has with the international 1 Rome Statute of the International Criminal Court. July 1, 2002. Accessed on March 10, 2010.Available athttp://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.Cover photos are courtesy of the Department of Defense(http://www.defense.gov//Photos/NewsPhoto.aspx?NewsPhotoID=12502) and the ICC (http://www.icc-cpi.int/Menus/ICC/About+the+Court/) both accessed on April 15, 2010. 2 ³About the Court.´Accessed on March 23, 2010.Available at http://www.icc-cpi.int/Menus/ICC/About+the+Court/. 3 For purposes of this paper, IHL will refer only to the prosecutions of the most heinous of crimes i.e. genocide, war crimes, and crimes against humanity due to the fact that at this writing, these are the only crimes covered under theRome Statute. Rome Statute Article 5(1)(a)-(c). The Rome Statute also covers Aggression (Article 5(1)(d)) but at present, the crime has no definition and as such, is not being prosecuted by the ICC. Rome Statute Article 5(2). 4 Title II, H.R. 4775, 107 th Cong. (2002); PL 107-206 later codified as 22 U.S.C. §§ 7401, 7421-7433 .  Note: whenreferring to ASPA or ³the law,´ I am referring specifically to the version that was passed unless otherwise indicated.All cites to ASPA will be from the United States Code. 5  Infra at 12-18. 6 See e.g  . Currie, Robert J., ³ Abducted Fugitives Before the International Criminal Court: Problems andProspects.´18 Crim. L.F. 349, n.159 (2007). 7 See e.g.Erna Paris, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice 61-62(2009); Galbraith, Jean. ³The Bush Administration¶s Response to the International Criminal Court.´21 Berkeley J.   2community in this area of law.While controversial when passed largely due to one specific provision regarding the President¶s authority to act if a U.S. Citizen was brought before theICC, 8 ASPA does not appear to have had any large substantive impact on U.S. foreign policy.Inrecent years, as the ICC has grown in stature and taken on several prominent cases, the questionis whether this law is still applicable nearly a decade following its passage. Repealing ASPA inits entirety is inappropriate. However, ASPA takes a hard line against the ICC and, given arecent United Nations Security Council (³UNSC´) referral to the ICC in which the U.S. votedaffirmatively to send the referral and the types of cases the ICC is currently handling, such a hardline is no longer necessary. Congress should remove the anti-ICC provisions and provide for thedefense of U.S. Personnel, both past and present, who are put on trial in other states for violations of IHL under the principle of Complementarity.This paper is organized as follows. The first half of this paper examines the backgroundand content of ASPA in an effort to understand exactly what this law was designed to do. Thefirst section gives a brief overview of the U.S. relationship with international criminal tribunals,IHL, and the Rome Statute in order to provide some essential context for attitudes at the time of ASPA¶s passage and the birth of the ICC. The second section will look at the legislative historyof ASPA which includes examining earlier legislation surrounding the U.S. relationship with theICCand the legislative history of un-passed iterations of ASPA. 9 This is necessary in order to Int'l L. 683, 692-96 (2003); Markovic, Sasha. ³The Modern Version of the Shot Heard µRound the World:America¶s Flawed Revolution Against the International Criminal Court and the Rest of the World.´ 51 Clev.St. L.Rev. 263, 269-270 (2004). 8 See e.g. id  . 9 There were three attempts to pass ASPA before it finally passed. First, a version of ASPA (³ASPANDAA´) wasadded as an amendment to the The National Defense Authorization Act for Fiscal Year 2002 (³NDAA´) (S. 1438,107 th Cong. (2001)). ASPANDAA passed both houses but was later dropped in the Conference Committee.Second, a version (³ASPA 2001´) was added as an amendment to, The Foreign Relations Authorization Act, Fiscal   3develop a sense of how Congress felt about this issue.The third section will conduct a review of the provisions in ASPA. This third section will also discuss the purposes of ASPA as no purposes were discussed in the law.The second half of this paper examines the success and future of ASPA. The first sectionexplores the effectiveness of the ICC which will necessarily require an examination of the principle of complementarity in which the member states take the primary lead in prosecutingviolations of IHL with the Court acting only if the states are ³unwilling or unable´ 10 to do so. 11  The second section examinesboth the benefits and problems with ASPA in the current politicaland legal environment and examine.At the outset, Iwould note that this paper is not analyzing whether the U.S. should or should not be a party to the Rome Statute.This is a very different question from whether the U.S.should pass and maintain legislation effectively designed to undermine the ICC.While some background describing the U.S. relationship with the Rome Statute and ICC is necessary, this isonly for the purpose of context and background.The focus of this paper is on ASPA as astatement of U.S. foreign policy and its overall effect. Years 2002 and 2003 (³FRAA´) (HR 1646, 107 th Cong. (2001)) ³but was not included in the final bill.´ (Faulhaber,Lilian V. ³American Servicemembers¶ Protection Act of 2002. 40 Harv.J. on Legis. 537, 5 44 n. 62 ). Third, TheAmerican Servicemembers¶ Protection Act of 2000 (³ASPA 2000´) was introduced in both the House and theSenate (H. 4654 and S.2726 respectively 106 th Cong. (2d Session)). However, the bill trackings on both bills showthat they died in committee. For House version, see http://web.lexis-lexis.com.gate.lib.buffalo.edu/congcomp/document?_m=de1399c982d99f5dc0c848eed1ba44c5&_docnum=2&wchp=dGLzVlz-zSkSA&_md5=26442456495ea5108cc8437cc391c6aa; For Senate version, see http://web.lexis-nexis.com.gate.lib.buffalo.edu/congcomp/document?_m=2b7afbc74bc2bc04f38cad4a1f482681&_docnum=4&wchp=dGLzVlz-zSkSA&_md5=f6d16c857c605792376cff3bbecfbac7 , both accessed on May 8, 2010. There was also aweaker version of ASPA introduced in 1999 called the ³Protection of United States Troops from ForeignProsecution Act of 1999 (H.R. 2381, 106 th Cong. (1 st Session) (1999)). However, this bill died in committee. Seehttp://web.lexis-nexis.com.gate.lib.buffalo.edu/congcomp/document?_m=74b29e547a9845bbd91c9e7fd8373b1e&_docnum=1&wch p=dGLzVlz-zSkSA&_md5=8043c5c081173500c15319a823ae70a5. Accessed on May 8, 2010. 10 ICC, s upra note 1, at Article 17(1)(a). 11 See infra at 22 for complete discussion on complementarity.   4 PART I- ASPA   A Complex Context ASPA is merely one piece of a much larger and complicated relationship between theU.S. and the international community regarding the enforcement of IHL. Some might betempted to equate the refusal of the U.S. to ratify the Rome Statute and its contentiousrelationships with other international tribunals including the International Court of Justice(³ICJ´) 12 with an antagonistic attitude towards international tribunals at large. The Ad Hoc Tribunals Actually, U.S. foreign policy has been generally favorable towards international tribunalsthat deal with violations of IHL. The U.S. was a key supporterfor the creation of and a key participantin the activities of the Nuremberg and Tokyo tribunals after World War II. 13 After World War II, the United States was an ardent proponent of following the international legal principles outlined at the Nuremberg tribunals and creating a permanent international criminaltribunal (³ICTs´) under the auspices of the United Nations. However, this permanent court wasnever established. 14 Beginning in the 1990s, the United Nations Security Council (³UNSC´)established ad hoc ICTs on a case by case basis to deal with violations of IHL, usually after aspecific crisis.The U.S. was a key supporter for the creation of these international ad hoc tribunals, theInternational Criminal Tribunal for the Former Yugoslavia (ICTY) and the International 12 See e.g. Germany v. U.S. , 526 U.S. 111 (1999) (rejecting an application to enforce an order issued by theInternational Court of Justice to delay the execution of the defendant, Le Grand, due to a violation by U.S. officialsof the Vienna Convention for Consular Relations). 13 Cerone, John P., ³Dynamic Equilibrium: The Evolution of US Attitudes TowardInternational Criminal Courts andTribunals.´ 18 Eur. J. Int'l L. 277, 283-288 (2007).   14  Id  at 285-88.
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