The American Servicemembers’ Protection Act: Pathways to, and Constraints on, U.S. Cooperation with the International Criminal Court


  • Kiel Ireland
  • Julian Bava
Publish Date:
June 1, 2016
  • Kiel Ireland and Julian Bava, The American Servicemembers’ Protection Act: Pathways to, and Constraints on, U.S. Cooperation with the International Criminal Court, Stanford Law School: Law and Policy Lab (June 2016).
Related Organization(s):


In response to the establishment of the International Criminal Court (“the ICC”), in 2002 the U.S. Congress passed the American Servicemembers’ Protection Act (“ASPA”). Congress feared that the ICC could be used to harass and detain American soldiers on foreign soil for purely political reasons. ASPA therefore sharply limited the U.S. government’s ability to cooperate with the ICC in cases that are contrary to the national interest. ASPA built on an earlier statute, 22 U.S.C. §7401 (“the FRAA”), which prohibited “obligat[ing]” funds “for use by, or support of, the International Criminal Court.” Nevertheless, ASPA was not intended to prevent all U.S. cooperation with the ICC and should not be construed as such. The final section of ASPA, 22 U.S.C. §7433, clarifies that nothing in ASPA “shall prohibit the United States from rendering assistance to international efforts to bring to justice . . . foreign nationals accused of genocide, war crimes and crimes against humanity.” This so-called Dodd Amendment establishes a safe harbor that frees the government from ASPA’s prohibitions if five requirements are met:


  • The United States must be “rendering assistance,”
  • The assistance must be provided to “international efforts,”
  • These international efforts must be aimed at “bring[ing] to justice” certain individuals,
  • The target of the international efforts must a “foreign national[],” and
  • The foreign national must be accused of “genocide, war crimes or crimes against humanity.”


The Dodd Amendment thus ensures that the government cannot support the kinds of cases Congress feared—for example, prosecutions of U.S. nationals or prosecutions for the crime of aggression. But it broadly allows cooperation when these disqualifying attributes are absent. After a more thorough textual analysis of ASPA and the Dodd Amendment, which supports the conclusion that the Dodd Amendment substantially narrows the ASPA prohibitions, this paper examines how ASPA, the Dodd Amendment and the FRAA interact with respect to four potential methods of cooperating with the ICC: providing funding, providing manpower, sharing intelligence and providing witness-protection services. Specifically, this paper finds that the FRAA poses a significant, but potentially surmountable obstacle to providing any funds to the ICC. Furthermore, the United States can generally support the ICC with manpower, intelligence and witness-protection services, as long as the support goes to particular Dodd Amendment-satisfying cases.  In addition, this paper shows that there are a number of ways that the United States an provide information that could assist with ICC prosecutions.