Categorized | News, Opinion


This op-ed in the Washington Post supports a thoroughly bad idea:  Repeal or substantial repeal of the American Servicemembers Protection Act (ASPA):

Next month’s anniversary is an appropriate time for Congress to review U.S. policy toward the court and whether the restrictions (including the authorization to invade The Hague) in the American Service-Members’ Protection Act do more harm than good.


When the partisanship of this election year subsides, Congress should modify the restrictions in the 2002 law that have prevented the United States from supporting the court in cases where justice for international atrocities cannot be achieved through other means.

In fairness, this writer, a respected attorney at Arnold & Porter, is a ICC skeptic:

No president should submit the Rome treaty to the Senate until the concerns identified by Clinton and Bush have been addressed.

But, this eminently sensible law (one of my favorites) that indicates that no government assistance to the ICC (unless waived) is authorized and that the President has the power to act unilaterally to free a covered American from the custody of the ICC:

  1. AUTHORITY- The President is authorized to use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.
  2. PERSONS AUTHORIZED TO BE FREED- The authority of subsection (a) shall extend to the following persons:
    1. Covered United States persons.
    2. Covered allied persons.
    3. Individuals detained or imprisoned for official actions taken while the individual was a covered United States person or a covered allied person, and in the case of a covered allied person, upon the request of such government.

A “covered United States person” is any member of the military, any elected or appointed official or any other US government official as long as we do not ratify the Rome Treaty (Lord forbid!)

So, what’s the problem?  It is the combination of the ICC is not a real threat to our interests and we need some power to act to help the Court catch bad guys like Joseph Kony.  I disagree with both:

The ICC IS a real threat.  It has meddled in the internal matters of the violence associated with the last Kenyan election and acts in Libya even though Libya was not a signer to the ICC. The ICC is a threat to Israel, too.  While the ICC refused to intervene in the Gaza situation, citing the fact that Palestine is not a “state”, it did state:

The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12 or should the Security Council, in accordance with article 13(b), make a referral providing jurisdiction.

As for the apprehension of bad guys like Joseph Kony, that is generally not the concern of the US nor is it the concern of the international community, although other nations unilaterally may help one another apprehend or try Kony for crimes committed on their territory.  We can provide technical legal and logistical support for that.  We do not need to repeal the ASPA for that.

We need to act decisively to fight the International Criminal Court.  Encourage nations to opt-out and renounce their ratification.  Refuse to support referrals at the UN (until we get out of the UN; if we are able to) and make it US policy:  The ICC is not our friend.  Let’s not help it.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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