Since its participation in the 1998 Rome Conference, the United States has vocalized opposition to key components of the International Criminal Court’s (ICC) jurisdiction. This opposition has informed longstanding positions taken by the executive branch and motivated anti-ICC legislation passed by Congress. Support for the ICC’s investigation in Ukraine challenged these narratives across the legislative and executive branches, but the ICC’s arrest warrants of Israeli officials in 2024 renewed Congress’s heightened skepticism of the court and sowed political divisions on efforts to sanction the ICC.
Congress’s oscillation on the ICC within the past several years prompts a larger question of how the United States can balance its policy interests with existing legal authorities that narrowly permit U.S. cooperation. Statutory exceptions within the American Servicemembers’ Protection Act (ASPA) and Dodd Amendment readily provide justification for the President to support the ICC’s investigations and prosecutions, but neither exception has been fully employed by the U.S. government. This Note will explore how these exceptions can be deployed by the executive and legislative branches to streamline how the United States can legally support the ICC when doing so aligns with U.S. foreign policy objectives. Based on this assessment, this Note will propose that Congress harness these existing legal authorities and create a cogent legislative fix that establishes long-term parameters for U.S. engagement with the ICC. This new statute should feature the best components of ASPA and the Dodd Amendment’s exceptions, which allow deference to the executive branch for policy decisions on when the United States should support the ICC’s activities, set congressional notification procedures and reporting requirements for the executive branch, and describe what forms of support U.S. agencies can reliably provide to the ICC. Through this reform, the U.S. government can develop straightforward mechanisms for assisting the ICC’s investigation and prosecution of individuals accused of crimes against humanity, genocide, and war crimes.
Introduction
In February 2022, Russian forces invaded Ukraine under an alleged mandate to protect civilians in eastern Ukraine against the North Atlantic Treaty Organization’s (NATO) expanding influence.1 After the world observed the devastating impact of this invasion, thirty-nine countries prompted the Prosecutor of the International Criminal Court (ICC) to open investigations into atrocities alleged to have occurred in Ukraine since 2013.2 After the Prosecutor’s preliminary examination, he announced that the ICC had a reasonable basis to believe that crimes within its jurisdiction, including war crimes, genocide, crimes against humanity, and crimes of aggression, have been committed by Russian forces in Ukraine.3
Along with the U.S. Congress’s authorization for security assistance to Ukraine following Russia’s invasion,4 a bipartisan delegation visited the ICC later that year.5 Senate Republicans “led a unanimous Senate resolution supporting ‘any investigation’ into crimes ‘levied by [Russia’s] President Vladimir Putin,’ which would include the ICC investigation.”6 Congress promptly expanded statutory authority for U.S. support to the ICC’s investigation in the 2023 Consolidated Appropriations Act, excluding prohibitions on U.S. material support and information-sharing for the ICC’s investigation of alleged international crimes of foreign nationals in Ukraine.7 Simultaneously, the Fiscal Year 2023 Omnibus provided the President “with greater flexibility to assist the ICC with information[-]sharing, technical assistance, and financial support” through revisions to the Dodd Amendment, a narrow exception that allows U.S. support for the ICC under the American Servicemembers’ Protection Act (ASPA).8
These legislative developments reflect a remarkable shift in domestic legal authorities that have shaped and strained the United States’ relationship with the ICC. Since its participation in the 1998 Rome Conference,9 the United States has vocalized opposition to key components of the ICC’s jurisdiction to justify not joining the ICC Assembly of State Parties.10 This opposition has informed longstanding positions taken by federal agencies and military branches and motivated anti-ICC legislation passed by Congress.11 Support for the ICC’s investigation in Ukraine challenged these narratives across the legislative and executive branches,12 but the ICC’s arrest warrants of Israeli officials in 2024 renewed Congress’s heightened skepticism of the court and sowed political divisions on efforts to sanction the ICC.13
Congress’s oscillation on the ICC within the past several years prompts a larger question of how the United States can balance its policy interests with existing legal authorities that narrowly permit U.S. cooperation. Statutory exceptions within ASPA and the Dodd Amendment readily provide justification for the President to support the ICC’s investigations and prosecutions, but neither exception has been fully employed by the U.S. government.14 This Note will explore how these exceptions can be deployed by the executive and legislative branches to streamline how the United States can legally support the ICC when doing so aligns with U.S. foreign policy objectives. Based on this assessment, this Note will propose that Congress should harness these existing legal authorities and create a cogent legislative fix that establishes long-term parameters for U.S. engagement with the ICC. This new statute should feature the best components of ASPA and the Dodd Amendment’s exceptions, which allow deference to the executive branch for policy decisions on when the United States should support the ICC’s activities, set congressional notification procedures and reporting requirements for the executive branch, and describe what forms of support U.S. agencies can reliably provide to the ICC. Through this reform, the U.S. government can develop straightforward mechanisms for assisting the ICC’s investigation and prosecution of foreign nationals accused of crimes against humanity, genocide, and war crimes.
Section I.A. of this Note will explore the historical framework of the United States’ relationship with the ICC.15 It will trace U.S. governmental perspectives beginning from the 1998 Rome Conference to President Trump’s sanctions of ICC personnel while discussing the development of ASPA and the Dodd Amendment.16 Section I.B. will examine the current landscape of United States-ICC relations by delving deeper into recent Ukraine-focused reforms in Congress and calls to sanction the ICC in retaliation for its arrest warrants of Israeli officials.17 Section I.B. will also explore how executive branch officials have implemented this revised legal authority and discuss divergent viewpoints within the U.S. government.18 Part II will provide an analysis of how ASPA’s waiver system and the Dodd Amendment each allow executive branch support of the ICC beyond Ukraine.19 By conducting a textual interpretation of each set of provisions, this Note will ascertain how the President may apply these exceptions to ICC matters that are within the United States’ national interests.20 Finally, Part III will propose a legislative fix for Congress to bridge gaps between these statutes: centralized provisions that allow the President and Congress to recognize when the United States should support the ICC and determine which types of assistance could be consistently provided.21
I. Background
A. Historical Framework
1. 1998 Rome Conference
The ICC, created by the Rome Statute, is a permanent international judicial body with jurisdiction to prosecute four categories of crimes: genocide, war crimes, crimes against humanity, and the crime of aggression.22 In the wake of atrocities that deeply shocked the conscience of humanity throughout the twentieth century, the international community was determined to end impunity for perpetrators through effective prosecution on both domestic and international levels.23 The ICC’s membership includes 125 countries who are State Parties to the Rome Statute: thirty-three African States, nineteen Asia-Pacific States, twenty Eastern European States, twenty-eight Latin American and Caribbean States, and twenty-five Western European and other States.24 As of March 2025, the ICC maintains thirty-three cases and twelve ongoing investigations across several regions but predominantly within African States.25
On July 17, 1998, the United Nations (U.N.) Diplomatic Conference of Plenipotentiaries on the Establishment of the ICC adopted the Rome Statute.26 During negotiations, the Clinton Administration supported the ICC’s creation but objected to certain provisions.27 As a result, the Clinton Administration “said it would not submit [the Rome Statute] to the [U.S.] Senate for its advice and consent for ratification.”28 However, after the United States assisted with the drafting and adopting of important foundational documents, such as the Rome Statute’s Rules of Procedure and Evidence, President Clinton signed the Rome Statute in 2000.29 Stating that the U.S. signature was the “right action to take at this point,” the Clinton Administration believed that signing the Rome Statute would increase chances for productive discussions with other governments to deter human rights abuses in the months and years ahead.30
Congress initially signaled mistrust of the ICC in November 1999 when it enacted the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act for Fiscal Years 2000 and 2001 (FRAA).31 A provision in the FRAA, now codified at 22 U.S.C. § 7401(b), states that “[n]one of the funds authorized to be appropriated by this or any other Act may be obligated for use by, or for support of, the [ICC] unless the United States has become a party to the Court . . . .”32 The Office of Legal Counsel (OLC) at the U.S. Department of Justice later found that “§ 7401(b) remains in effect even though it was enacted as part of an appropriations act and provisions in appropriations acts are presumed not to be permanent.”33
2. President Bush, American Servicemembers’ Protection Act, and the Dodd Amendment
Like his predecessor, President George W. Bush declined to submit the Rome Statute to the Senate for ratification and notified the U.N. Secretary General, as depositary,34 of the United States’ intent not to ratify the treaty.35 The Bush Administration advanced objections based on:
(1) the [ICC’s] assertion of jurisdiction . . . over citizens, including military personnel, of countries that are not parties to the treaty;36 (2) the perceived lack of adequate checks and balances on the powers of the ICC prosecutors and judges; (3) the perceived dilution of the role of the U.N. Security Council in maintaining peace and security;37 and (4) the ICC’s potentially chilling effect on America’s willingness to project power in the defense of its interests.38
The Senate cited the potential for politicized prosecution of American soldiers and officials in the post-9/11 context to justify Congress’s anti-ICC sentiments.39 Senator Jesse Helms, then-ranking Republican on the Senate Foreign Relations Committee, argued that,
As [America] commenced an aggressive fight against terror . . . [its] military needed to be free from the worry that it might become targeted by the court, forced to stand trial for it[s] actions in war should it push (or cross) the bounds of legally-permissible interrogation and investigation tactics.40
As a result, just one month after the ICC began its operations, President Bush signed ASPA into law in August 2002.41 ASPA contains “sweeping prohibitions against cooperation between U.S. government entities, including U.S. courts, and the ICC.”42 Prohibited specific conduct includes “responding to requests for cooperation” from the ICC,43 “transmit[ting] . . . letters rogatory from the [ICC],”44 “us[ing] . . . appropriated funds to assist the [ICC],”45 and “bar[ring] the ICC and its ‘agents’ from engaging in investigative activities in the United States.”46 ASPA even includes “a provision that empowers the U.S. military to invade the [ICC’s] detention facilities should any American end up there, [which] led to the legislation’s unusual nickname: the [Hague Invasion] Act.”47
At its passage, ASPA provided two waivers to permit the executive branch some freedom to cooperate with the ICC.48 The “Commander-in-Chief Waiver” grants the President authority “to take certain military actions . . . —even if they otherwise violate ASPA—so long as Congressional notice is provided.”49 The “Peacekeeping Waiver” provides the President with authority “to waive the ASPA restrictions when the United States chooses to take part in a peacekeeping operation deemed to be in the national security interest of the United States.”50 Congress later adopted the Dodd Amendment, which it intended to serve as “a carve-out for assistance to international efforts to bring to justice foreign nationals accused of genocide, war crimes, or crimes against humanity.”51 The Dodd Amendment permits the United States to render assistance to international justice efforts related to specific individuals who have been accused of crimes that fall within the ICC’s jurisdiction.52
Executive branch officials articulated several concerns following ASPA’s passage. First, that “ASPA] would inhibit [the United States’] chances of negotiating procedural safeguards for soldiers and government officials by pulling away from the [ICC] instead of positively engaging [with] it.”53 Additionally, “[ASPA] would potentially infringe on the President’s constitutional authority as Commander-in-Chief by hindering [their] ability to conduct foreign relations.”54 However, these concerns were largely set aside by Congress due to their inclusion of the waivers in ASPA.55
Despite the legal availability for cooperation, the Bush Administration remained antagonistic toward the ICC. For example, on June 30, 2002, the United States vetoed a U.N. resolution extending the peacekeeping mission in Bosnia and Herzegovina because the Security Council refused to add a guarantee of full immunity for U.S. personnel from the jurisdiction of the ICC.56 Ultimately, the U.N. Security Council and the U.S. delegation reached a compromise and unanimously adopted a resolution requesting the ICC defer, for an initial period of one year, any prosecution of persons participating in U.N. peacekeeping efforts who are nationals of non-State Parties to the ICC.57
The Bush Administration reached bilateral immunity agreements, also known as “Article 98 agreements,” with most State Parties to exempt U.S. citizens from possible surrender to the ICC.58 Each State Party to an Article 98 agreement promises that it will not surrender citizens of the other State Party to international tribunals or the ICC unless both parties agree in advance.59 An Article 98 agreement would prevent the surrender of certain persons to the ICC by parties to the agreement but would not bind the ICC if it were to obtain custody of the accused through other means.60 “[T]he Bush Administration terminated military assistance to governments of countries that had not signed Article 98 agreements,”61 and by 2005, the United States signed one hundred Article 98 agreements with State Parties to the ICC.62 However, “[t]he legality of these agreements has been sharply contested when the second party to them is a [S]tate [P]arty to the Rome Statute.”63 These agreements “undermine the ICC, legitimize immunity, and create a two-tiered system of justice: one for U.S. citizens; and one for the rest of the world’s citizens.”64
At the beginning of 2006, the Bush Administration appeared to be divided over whether to continue linking [International Military Education and Training (IMET) and Economic Support Funds (ESF)] assistance to Article 98 agreements. Secretary of State Condoleezza Rice acknowledged that invoking ASPA sanctions on key U.S. military allies may be ‘sort of the same as shooting ourselves in the foot’ and that waivers of military aid restrictions [were] being considered on a case-by-case basis.65
Thus, by fall 2006, President Bush waived restrictions on FY2006 IMET and ESF funds for twenty-one countries and by FY2007, Congress modified ASPA to end the ban on IMET assistance to countries without Article 98 agreements.66
3. Constructive Engagement During the Obama Administration
Upon President Obama’s entry into office, the U.S. government reassessed its obligations under ASPA. In a memorandum prepared by OLC on January 15, 2010, the Office considered,
[W]hether federal statutes bar the [U.S.] [g]overnment from engaging in certain diplomatic activities that could be supportive of the ICC, from providing funding directly to the ICC for specific cases, from providing certain informational assistance to the ICC, from training ICC personnel, and from detailing [g]overnment employees to the ICC.67
OLC found two statutory constraints: the FRAA under 22 U.S.C. § 7401(b) and ASPA.68 Under these statutes, “the United States [could] not provide financial support to the ICC as an institution or obligate for use by the ICC even in specific cases funds that Congress has authorized to be appropriated.”69 OLC found, “however, that under both subsection 7401(b) and ASPA, the United States may engage in the diplomatic activities [related to] the ICC.”70
[N]either of the statutes in question prohibits the United States from furnishing the informational assistance . . . for particular ICC cases involving foreign nationals accused of genocide, war crimes, or crimes against humanity, or from training ICC personnel or detailing [g]overnment employees to the ICC where those forms of assistance are limited to particular cases involving foreign nationals accused of [those crimes].71
Therefore, the OLC memo provides support for the argument that the Dodd Amendment permits cooperation with the ICC.72
Generally, the Obama Administration made greater strides to end impunity for international crimes through the work of the State Department and other agencies.73 In 2014, the Obama Administration sent approximately 280 U.S. servicemembers to the central African region to assist national and regional efforts to apprehend key Lord’s Resistance Army (LRA) commanders.74 “[Alt]hough Congress . . . support[ed] . . . sending military and intelligence assistance to ‘apprehend or remove’ top LRA commanders, Congress neglected to include international justice efforts under the umbrella of transitional justice mechanisms available to the [P]resident.”75 However, Congress believed “a principal objective of the foreign policy of the United States” is to support efforts to promote transitional justice and reconciliation on both local and national levels.76 “Other appropriations bills and defense authorization acts have echoed Congressional support for the broad aim of eliminating the LRA, but [fell] short of approving military efforts to cooperate [with] an international tribunal (including surrendering captures suspects and sharing intelligence).”77 “When . . . the Central African Republic captured and surrendered Dominic Ongwen—an LRA commander indicted by the ICC who already intended to defect—to American custody, U.S. forces on the ground transferred him to the African Union.”78 “Perhaps to avoid running afoul of ASPA, the [United States] exercised what could be described as an unnecessary abundance of caution in constructing a complex chain of custody.”79
While the Obama Administration’s official policy toward the ICC was one of engagement as an observer nation,80 they did participate constructively during periodic meetings of the ICC’s Assembly of State Parties.81 At the 2010 ICC Review Conference, a Special Working Group proposed a new crime to be adopted by the State Parties under the Rome Statute—the crime of aggression:82
“Crime of aggression” is defined as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a [s]tate, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”83
The U.S. delegation expressed several concerns about this definition of a crime of aggression.84 “[U.S. Ambassador for War Crimes Stephen Rapp] . . . stated that a definition limiting certain uses of force to stop atrocities could weaken the core human rights mission of the ICC, by essentially preventing military and political forms of human rights protections.”85
4. Rollbacks During the First Trump Administration
The Trump Administration’s approach to international legal engagement can be broadly characterized as isolationist.86 President Trump’s National Security Adviser John Bolton stated that “the [ICC] has been ineffective, unaccountable, and indeed, outright dangerous.”87 Specifically, Bolton was referencing “the ICC Prosecutor[’s] request[] [for] authorization to investigate alleged war crimes committed by U.S. [servicemembers] and intelligence professionals during the war in Afghanistan,” which neither Afghanistan nor any other State Party requested.88 He directly criticized the ICC’s crime of aggression provisions and speculated their use in targeting U.S. servicemembers who killed Osama bin Laden, authorized air strikes in Syria, conducted military exercises with allies, or supported Israel’s self-defense.89 Therefore, Bolton claimed that the ICC maintained “unaccountable powers” that supposedly constituted a constitutional and sovereignty assault against the United States.90
Based on this rhetoric, the Trump Administration imposed sanctions on then-ICC Prosecutor Fatou Bensouda and other senior prosecution officials.91 President Trump issued an executive order in 2020 that authorized asset freezes and entry bans against ICC officials, and their immediate family members, who were identified as being involved with certain investigations, particularly those in Afghanistan and Palestine.92
B. Current Landscape
1. ICC Investigation in Ukraine
Following referrals from ICC State Parties in March 2022, the ICC opened an investigation into alleged war crimes and crimes against humanity committed by Russian or Russian-affiliated forces in Ukraine.93 Such crimes include “torture, summary executions, sexual violence, enforced disappearances, and the pillage of art and cultural artifacts.”94
Russian and Russian-affiliated authorities . . . subjected thousands of . . . Ukrainian citizens to a process referred to by Russia as “filtration,” a form of compulsory security screening, in which they typically collected civilians’ biometric data, including fingerprints and front and side facial images; conducted body searches, and searched personal belongings and phones; and questioned them about their political views.95
Under the Rome Statute, “[i]ndividuals . . . may be held criminally liable for attempting to commit a war crime,” and “[r]esponsibility also may fall on . . . [c]ommanders and civilian leaders . . . when they knew or should have known about the commission of war crimes.”96 Based on these principles, ICC Prosecutor Karim A.A. Khan deployed forty-two investigators, forensic experts, and support personnel to Ukraine to investigate crimes within the court’s jurisdiction.97 Ukrainian authorities signed an agreement on March 23, 2023, to support the opening of an ICC office in Ukraine for the purposes of this investigation.98 Additionally, while Russia is not a member of the ICC, Ukraine’s acceptance of the ICC’s jurisdiction complied with its “mandate to impartially investigate allegations of crimes committed in Ukraine by all parties to the conflict, regardless of the nationality of the person allegedly responsible.”99 Thus, the ICC issued warrants for Russian President Vladimir Putin and Maria Alekseyevna, Commissioner for Children’s Rights in the Office of the President of the Russian Federation, for alleged war crimes such as unlawful deportation and unlawful transfer of children from occupied areas of Ukraine to the Russian Federation.100
The ICC’s arrest warrants for Russian officials, particularly President Putin, pose several questions concerning ratione materiae immunity.101 This form of immunity grants a president, as a head of state, absolute immunity from the jurisdiction of other states for any actions committed during their presidency.102 “[E]xceptions have been made in the case of serious human rights violations,” and Article 27 of the Rome Statute states that the ICC’s jurisdiction applies equally to all persons without any distinctions for one’s official capacity.103 However, due to Russia’s status as a non-State Party of the ICC, the ICC can only exercise its jurisdiction if President Putin is physically present before the court.104 Although successful efforts to bring President Putin before the ICC are unlikely, experts view the issuance of the warrants as a “morale boost” for those seeking justice for crimes committed against Ukrainians.105 The warrants provide added legitimacy to ongoing investigations and signal the international community’s commitment to addressing the impact of Russian aggression in Ukraine.106 As this Note demonstrates, this commitment mobilized unprecedented support from the United States regardless of President Putin’s actual arrest.107
2. U.S. Government Response to the ICC Investigation in Ukraine
When President Biden took office, the United States revoked the sanctions against ICC officials but maintained its disagreement with the ICC’s actions related to Afghanistan and Palestine.108 Soon after Russia’s invasion of Ukraine, the United States authorized billions of dollars in military assistance for Ukrainian forces,109 and President Biden intensified the U.S. government’s public rhetoric when he labeled President Putin a “war criminal.”110 Members of the U.S. Senate similarly “call[ed] for [President] Putin and members of the Russian [government] to be held accountable for the numerous acts of war, aggression, and human rights abuses.”111 Senator Chris Coons directly cited the Rome Statute’s jurisdiction and recalled prior instances of Russian aggression in Chechnya and Georgia to justify the Senate’s encouragement of referrals of the situation to the ICC and International Court of Justice (ICJ).112 Specifically, his Senate Resolution supported both courts’ ability “to authorize any and all pending investigations into war crimes and crimes against humanity committed by the Russian Armed Forces and their proxies . . . at the direction of President Vladimir Putin.”113
These sentiments prompted the bipartisan passage of the 2023 Consolidated Appropriations Act.114 Upon President Biden’s signature, the 2023 Consolidated Appropriations Act officially created an exception to existing prohibitions on ICC assistance.115 The exception, under the appropriations for “War Crimes Accountability,” stated that prohibitions will “not apply with respect to investigative activities that . . . relate solely to investigations and prosecutions of foreign persons for crimes within the jurisdiction of the [ICC] related to the Situation in Ukraine . . . .”116 Additionally, the Fiscal Year 2023 Omnibus provides greater flexibility to assist the ICC in its revisions to the Dodd Amendment.117 The Amendment now incorporates the United States’ ability to “render[] assistance to the [ICC] to assist with investigations and prosecutions of foreign nationals related to the Situation in Ukraine, including to support victims and witnesses.”118
The legislative changes revived rifts between the intelligence and diplomatic communities on ICC cooperation.119 Historically, intelligence and military leaders expressed longstanding legal and policy concerns about cooperation with the ICC.120 These concerns include (1) ICC jurisdiction over nationals of non-State Parties and risks of legal exposure for U.S. troops, particularly with regard to ICC investigations in Afghanistan; (2) specific ICC doctrines like complementarity and gravity; and (3) potential issues related to head-of-state immunity.121 However, Congress unanimously passed legislation that requires the intelligence community to implement greater measures to support the ICC’s investigation in Ukraine.122 The House Permanent Select Committee on Intelligence enacted a new provision within the 2023 Intelligence Authorization Act that mandated the creation of a Russian atrocities special coordinator at the Office of the Director of National Intelligence.123
Despite congressional authorization, the Pentagon blocked the Biden Administration from sharing evidence with the ICC gathered by American intelligence agencies about Russian atrocities in Ukraine.124 In a National Security Council-led cabinet-level meeting, then-Secretary of Defense Lloyd J. Austin III continued to object to the United States helping the ICC investigate citizens of non-State Parties.125 During the Senate Appropriations Defense Subcommittee review of the President’s FY 2024 budget request, Austin expressed concerns about “reciprocity going forward” and “remain[ed] concerned about the protection of U.S. military personnel but did not further explain his position.”126 Ambassador-at-Large for Global Criminal Justice Beth Van Schaack confirmed the Pentagon’s continued hindrance of U.S. cooperation with the ICC on Ukraine.127
Contrary to the military branches’ view, Ambassador Van Schaack believed that there was no acute risk of U.S. personnel receiving charges from the ICC.128 One of her predecessors, David Scheffer, argued that the U.S. government, rather than remain “on the defensive about the ICC, should take the offensive and recognize how the ICC . . . advances critical U.S. values, particularly against an aggressor state like Russia.”129 John Bellinger, a former lawyer for the National Security Council and the State Department in the Bush Administration, similarly stated that if the ICC does attempt to prosecute Americans, the United States would have more allies who agree that the ICC should only be used by countries that are incapable of addressing serious international crimes committed by their citizens.130 Therefore, the United States should look at “how [to] use the [ICC], the successor to the Nuremberg tribunals, as a tool to investigate and prosecute Russian war crimes.”131
3. U.S. Governmental Response to ICC Arrest Warrants for Israeli Officials
In 2024, the ICC’s Office of the Prosecutor issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Minister of Defense Yoav Gallant.132 The ICC found that there were reasonable grounds that each official “committed the war crime of using starvation as a method of warfare and crimes against humanity of murder, persecution, and other inhumane acts.”133 In reaction to the ICC’s actions, the United States submitted written comments to the ICC in which it argued that the arrest warrants were premature and that the ICC lacks jurisdiction to try Israeli nationals for conduct in Gaza due to ongoing questions over Palestine’s statehood.134
Along with the United States’ legal advocacy for Israel came political outcry from the executive and legislative branches. President Biden labeled the ICC’s application for arrest warrants as “outrageous,”135 while Senate Republicans openly threatened Karim Khan: “Target Israel and we will target you. If you move forward with the measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.”136 Accordingly, in a joint bill, Republican members of the House and Senate sponsored the Illegitimate Court Counteraction Act, which ordered the President to issue sanctions on any foreign person who assists ICC investigations and arrests and rescinds appropriations for the ICC.137 Although the Illegitimate Court Counteraction Act passed in the House, the Biden Administration disagreed with the sanctions approach, therefore dividing support for the bill along partisan lines.138
On February 6, 2025, President Trump issued an executive order that largely adopts the sanctions proposed in the Illegitimate Court Counteraction Act.139 The executive order also declares a national emergency to address what it describes as an “unusual and extraordinary threat to the national security and foreign policy of the United States.”140
The United States’ rhetorical reversal in support for the ICC in the Israel-Palestine context may just be one additional chapter in its complex story of flip-flopping cooperation based on the ICC’s alignment with U.S. policy objectives. But Congress’s increasingly active role in shaping the United States’ stance on the ICC in recent years presents an opportunity for it to detach domestic legal authorities for ICC support from the political pendulum. Instead, Congress can formalize such authorities through a statutory course correction.
II. Analysis
A. Presidential Waivers Under ASPA
While Congress intended to block most opportunities for the United States to engage with the ICC, ASPA allows for two additional ASPA waivers that permit deference to the President’s decision-making on cooperation.141 “The ‘Peacekeeping Waiver’ allows the President to waive ASPA restrictions when the United States chooses to take part in a peacekeeping operation deemed to be [within its] national security interest . . . ,”142 while the Commander-in-Chief Waiver states that the President can take certain military actions “even if they otherwise violate ASPA—so long as [c]ongressional notice is provided.”143 Both waivers, however, contain limitations for U.S. cooperation with the ICC.144
1. Interpretation
a. Peacekeeping Waiver
Section 7424 of ASPA states that “the President should use the voice and vote of the United States in the United Nations Security Council to ensure that each resolution . . . authorizing any peacekeeping operation” under the U.N. Charter permanently exempts American armed forces from participating in any criminal prosecution or other assertion of jurisdiction by the ICC.145 However, the President is authorized to waive the prohibitions and requirements of § 7424 for one year in advance of notifying appropriate congressional committees and prohibiting the ICC from exercising jurisdiction over covered U.S. or allied persons from arrest, detention, prosecution, or imprisonment by the ICC.146 Additional conditions for the waiver’s application include the President’s reasonable belief that the ICC’s named individual committed the crime of which they are accused147 and that the ICC’s investigation or prosecution is within the national interest of the United States.148 After reporting these conditions to Congress, the President may extend this waiver for successive periods of one year.149
The Peacekeeping Waiver’s language emulates the “case-by-case” manner in which the Commander-in-Chief Waiver and the Dodd Amendment are both situated.150 This suggests that Congress did not intend to limit the United States’ ability to support the ICC when the executive branch determines key conditions.151 It is unambiguous that the United States maintains a national interest in the prosecution of suspected war criminals in peacekeeping operations, particularly in the context of counterterrorism efforts, but it is unclear whether the “Peacekeeping Waiver must be tied to an actual peacekeeping operation authorized by []§ 7424.”152 While § 7424(c)(1) states that the President must certify that the Security Council permanently exempted U.S. armed forces from ICC prosecution, § 7424(c)(3) generally allows the President to certify based on national interests of the United States that justify U.S. armed forces’ participation in “the peacekeeping or peace enforcement operation.”153 This interpretation may contravene the overall intent of ASPA, but it is possible that Congress left the waiver’s link between peacekeeping and ICC operations “deliberately vague in order to allow the President the greatest amount of latitude in choosing which ICC cases to support.”154 Therefore, the Peacekeeping Waiver “would be consistent with the broad presidential authorities ASPA grants in subsequent sections.”155
b. Commander-in-Chief Waiver
Section 7430 of ASPA preserves the President’s ability to cooperate with the ICC on a “case-by-case basis”156 in their constitutional capacity as Commander-in-Chief.157 Unlike the Peacekeeping Waiver’s conditions for congressional approval,158 the Commander-in-Chief Waiver simply directs the President to submit a notification to Congress no later than fifteen days after they take action to a specific matter involving the ICC.159 If a full notification could jeopardize national security or compromise a law enforcement activity, the President may notify appropriate congressional committees that “an action has been taken and a determination has been made” based on this statutory authority.160
The Commander-in-Chief Waiver may be read as a simple affirmation of the President’s constitutional authority.161 “If an act is expressly within the powers of the President, the executive [branch] is allowed to carry it out regardless of whether it is on a case-by-case basis.”162 Therefore, the Commander-in-Chief Waiver minimizes ASPA’s attempt to create a “blanket ban on [ICC] cooperation” and suggests a pathway for the United States to “pursue cooperation . . . when U.S. nationals are not subject to [investigation or] prosecution.”163
Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer provides three classes of executive action that merit differing levels of constitutional scrutiny.164 One aspect of the Youngstown framework recognizes that a “zone of twilight” exists when the President exercises “concurrent authority with Congress in the absence of legislative action to the contrary.”165 Another aspect of the framework holds that the President’s power is “at its lowest ebb” when it is used against Congress’s express or implied will.166 Here, the Constitution’s express delegation of Commander-in-Chief authority to the President is distinguished from the powers afforded to Congress.167 It may be argued that the Commander-in-Chief Waiver “amount[s] to tacit [c]ongressional approval for presidential cooperation with the ICC,” thus placing it within Justice Jackson’s “zone of twilight.”168
Some believe that ASPA still encroaches on the President’s powers by substantially impairing their ability to perform their duties.169 Compared to the congressional notification processes under the 1973 War Powers Resolution (WPR), ASPA differentially places hurdles in the President’s initial decision-making on ICC support while the WPR recognizes a sixty-day window in which the President can act on their constitutional authority.170 Additionally, under the WPR, Congress’s reporting requirements serve as mechanisms for information-sharing, but under ASPA, they serve as “another pre-deployment restriction on the President[’s] . . . ability to flexibly command the armed forces.”171
This argument has also been applied to the United States’ diplomatic relationships. In spite of both waivers, ASPA’s mandate would infringe on the President’s exclusive responsibility under the Constitution to maintain foreign relations.172 The Department of Justice advised that ASPA’s restrictions would tremendously limit “the United States’ ability to participate in cooperative international activities, such as providing [American] military or law enforcement personnel, advice, or equipment” to assist the ICC.173 Therefore, ASPA would seem to bar the President from communication with an international forum if such conduct were considered “cooperation” with the ICC.174
2. Application
a. Peacekeeping Waiver
The Peacekeeping Waiver provides a multi-step process for attaining congressional approval.175 Once the President asserts their reasonable belief that an individual committed a crime and that the individual’s prosecution is relevant to the national interests of the United States, the President may notify congressional committees of their waiver to § 7424.176 From there, the President may authorize U.S. armed forces to share certain types of intelligence or provide U.S. legal support to an ICC prosecution team.177
ASPA still provides some “indirect bars” for providing manpower to the ICC or training for ICC personnel.178 Section 7423 prohibits “provision of support” to the ICC, with “support” defined as “‘assistance of any kind,’ including ‘services’ and ‘the training or detail of personnel.’”179 Furthermore, all provisions must comply with § 7401, the FRAA, which bars providing any appropriated funds to the ICC for any purpose, including institutional support or prosecution of specific cases.180 However, § 7425’s prevention of transfers of classified national security information and law enforcement information to the ICC may not prohibit the executive branch from entirely barring informational transfers to the ICC.181 If information about an ICC suspect or evidence linking the person to the crime is available, it may be relayed to the ICC as long as it is not formally classified.182 Without additional congressional scrutiny, this application may be utilized by a President who seeks to engage constructively with ICC investigations.
Criteria for what constitutes a peacekeeping operation remain ambiguous due to conflicting terms in § 7424(c)(1) and (c)(3).183 Requiring a series of presidential actions that adhere to the establishment of a U.N. Peacekeeping Force pursuant to the U.N. Charter may not always provide a straightforward path for congressional authorization. Following the referral of the Darfur situation to the U.N. Security Council in 2005,184 the United States abstained on the resolution vote for the conflict’s referral to the ICC.185 The United States had the political authority to deprive the ICC from exercising jurisdiction due to its veto power in the Security Council.186 While the Security Council’s referral of Darfur remained unfettered by a veto from the United States,187 it is not beyond the realm of possibility for other states possessing veto power, particularly Russia or China, to limit referrals in future situations where their national interests may be at stake. Therefore, § 7424(c)(3)’s broader allowance for the President’s certification of national interests in a general “peacekeeping operation or effort” provides more consistency for justifying the use of the Peacekeeping Waiver.
b. Commander-in-Chief Waiver
The constitutional basis for the Commander-in-Chief Waiver provides the broadest possible authority for the President to engage in ICC support. For instance, some U.S.-gathered intelligence may be shared with the ICC upon the President’s exercise of their power as Commander-in-Chief.188 “Facts on the ground” that could only be discerned by military or intelligence agencies may be crucial to an ICC investigation that requires “details of a suspect’s criminal activities and whereabouts.”189 “Because the President retains ultimate authority over agencies that are governed by Title 10,”190 this type of intelligence transfer to the ICC would fulfill a military objective that could fall within a U.S. national interest.191
Legal experts point to the Commander-in-Chief Waiver as the means by which President Obama authorized U.S. support to the ICC with Dominic Ongwen’s arrest in the Central African Republic.192 While the Obama Administration may have authorized an indirect transfer of Ongwen to assure compliance with ASPA, successful use of the Commander-in-Chief Waiver “would have permitted a direct transfer to the ICC.”193 In fact, direct transfer is more likely to avoid risks of “local hostility toward the ICC and the prevalence of corruption” in countries with which the United States may conduct an indirect transfer.194 Therefore, if the United States ties its assistance to the ICC under the President’s Article II authorities, it can engage in the most effective modes of support that simultaneously serve its national interests.
B. Dodd Amendment
1. Interpretation
The Dodd Amendment, passed as a carve-out provision in 2002, remains one of the clearest exceptions to ASPA’s legislative purpose.195 Section 7433(a) of ASPA states that “[n]othing . . . shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of [Al-Qaeda], leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity . . . .”196 As of late 2022, the Dodd Amendment now includes “rendering assistance to the International Criminal Court to assist with investigations and prosecutions of foreign nationals related to the Situation in Ukraine, including to support victims and witnesses.”197 Section 7433(b) clearly demarcates this support from “investigations or prosecutions of U.S. servicemembers or other covered United States persons or covered allied persons.”198 Following the same procedures within the ASPA waivers, the next section requires the Secretary of State to notify the Committees on Appropriation, the Senate Foreign Relations Committee, and the House Foreign Affairs Committee of any amount of U.S. support to the ICC no later than fifteen days prior to carrying out such obligation.199
The Dodd Amendment does not state that the United States may assess ICC support on a case-by-case basis; rather, it tells the President which cases are already acceptable.200 As a result, each class of cases must be evaluated based on Dodd Amendment criteria, thus narrowing the President’s ability to seek support for situations unconsidered by Congress.201 For example, members of Congress declined to include crimes of aggression within the Dodd Amendment.202 This omission may prevent the United States from supporting the ICC’s pursuit of investigations involving such crimes. While this issue may not be at stake in the present circumstances surrounding the ICC’s investigation in Ukraine,203 there may be future instances in which U.S. national interests align with an ICC attempt to address crimes of aggression. In such an instance, the Dodd Amendment would only provide part of the needed justification for U.S. support to the ICC.
2. Application
The Dodd Amendment “does not render the rest of ASPA inoperative” or allow all forms of assistance to the ICC in the circumstances named above.204 “[T]he restriction[s] on ‘obligating’ funds for, use by, or support of the ICC found in the FRAA,” while referenced throughout ASPA, are not codified within ASPA itself and therefore remain uncovered by the Dodd Amendment.205 Additionally, the Dodd Amendment’s conditions that limit support to foreign nationals accused of crimes against humanity, genocide, or war crimes subsequently limit which entities within the ICC can receive support.206 Similarly, unless the ICC issues a formal indictment that establishes that an individual is a foreign national responsible for one of the three Rome Statute crimes, a higher burden is placed on the executive branch to prove that a case without such characteristics can be excluded from ASPA prohibitions.207
The Dodd Amendment enables certain U.S. intelligence-sharing and witness protection support if framed outside of § 7401’s realm. Intelligence can specifically assist prosecutions, or can be collected for a national interest independent of any ICC activities and shared later with the ICC.208 Similarly, witness protection measures paid by the ICC and not by the United States may be permissible.209 Furthermore, legal experts have identified ways that the ICC can obtain content and non-content data held in electronic storage by private companies incorporated in the United States.210 Several options are available in order to secure privately-held electronic information: “(1) submitting requests directly to tech companies; (2) filing requests for assistance in U.S. district courts; . . . [(3)] asking foreign governments to submit Mutual Legal Assistance (MLA) requests on the ICC’s behalf; and [(4)] partnering with joint law enforcement bodies, like INTERPOL, to make foreign-to-domestic law enforcement requests.”211
The Dodd Amendment has been under-utilized by the U.S. government. As the military and intelligence branches fear, even by assisting ICC investigations related to “Osama bin Laden, other members of [Al-Qaeda], [or] leaders of Islamic Jihad,”212 U.S. support may inadvertently reveal potential violations of the Rome Statute by American personnel during the wars in Afghanistan and Iraq. However, the Dodd Amendment’s narrow exceptions make crystal clear that all Americans are “covered . . . persons” under ASPA’s strong protections.213 Therefore, the Dodd Amendment, which solely allows U.S. cooperation with ICC investigations involving foreign nationals, should not be misconstrued by the Pentagon as a slippery slope for U.S. armed forces’ potential exposure to prosecutions.
In relation to Ukraine, the recent revisions to the Dodd Amendment and FRAA codify a range of methods the United States can use to support the ICC’s investigation.214 To replicate these efforts for individuals or situations not expressly provided for in § 7433, however, Congress must be readily willing and able to garner bipartisan support for a future national interest. Barring any additional revisions, the executive branch is limited to the Dodd Amendment’s criteria. Dissonance between domestic law and international legal norms could further impact the United States’ reputation as a reliable partner in addressing mass atrocities and seeking accountability for those responsible. Congress’s ability to regularly update the Dodd Amendment and FRAA thus plays a larger role in the United States’ engagement with the ICC.
III. Proposal
Based on the above considerations of the ASPA waiver system and Dodd Amendment, this Note advocates for a new statute that incorporates the most effective components of both sets of provisions. These components include (1) deference to the executive branch’s ability to assess U.S. national interests, (2) standard procedures for seeking congressional input on proposed ICC support, and (3) clear expectations on what types of support are approved.
A. Deference to the Executive Branch
A reformed statute should maintain the President’s Article II authority as a primary avenue through which the executive branch can act in support of the ICC. This language should be derived from the Commander-in-Chief Waiver, which authorizes the President to act in a matter involving the ICC on a case-by-case basis.215 The reform should also echo the Peacekeeping Waiver’s requirement for the President to maintain a reasonable belief and national interest in an ICC investigation or prosecution of a named individual.216 Constitutional authority and standards for reasonable belief and national interests should work in tandem to develop greater adherence to the executive branch’s assessment of which ICC matters are viable for U.S. support.
This reform should avoid references to named individuals and situations, such as those included in the Dodd Amendment.217 Instead, the reformed statute should continue using “foreign nationals accused of genocide, war crimes or crimes against humanity.”218 Making clear that these exceptions to ASPA concern only foreign nationals will assuage existing concerns about prosecutorial threats to American servicemembers while demonstrating the limits of U.S. involvement with ICC activities. Furthermore, omitting crimes of aggression sets aside ongoing debates about how the Rome Statute defines such crimes.219 However, this Note suggests that the United States should continue building consensus with State Parties to reach acceptable definitions that could be incorporated into this reform in the future.
By removing specific names and countries from this statutory reform, Congress can alleviate pressures on itself to conduct legislative upkeep on the exception’s limitations. Leaving decision-making on national interests up to the executive branch allows members of Congress to focus on the practical elements of regular relations with the ICC, such as evaluation of agency reporting and passage of targeted appropriations. This recalibration of roles between the legislative and executive branches can enhance institutional trust between Congress and the ICC.
B. Congressional Notification
A legislative fix should maintain the waiver system’s and Dodd Amendment’s requirements for congressional notification. It should include the Peacekeeping Waiver’s authorization for the President to waive ASPA prohibitions for successive periods of one year and allow extensions of waivers based on the President’s communications with appropriate committees at least fifteen days in advance.220 For greater clarity, the reform could specifically reference which committees are charged with responding to notifications as demonstrated in the Dodd Amendment’s provisions.221
Preserving procedures for congressional notification will balance the deference to executive decision-making with conventional mechanisms for oversight. By strengthening this interbranch process, Congress can standardize its stance on U.S. support of the ICC, which can foster greater trust in international institutions more broadly. Additionally, the executive branch’s notifications to Congress for ICC activities will mirror existing review processes included in the WPR222 and security assistance authorizations.223 As a result, U.S. support for the ICC can be more thoroughly integrated within Congress’s existing foreign policy framework.
C. Types of Support
Finally, this proposed legislative reform should continue emphasizing intelligence-sharing as the predominant mode of ICC support. The United States already possesses a combination of economic, intelligence, logistical, and diplomatic resources shared by few, if any, other countries224 thus making transfers of knowledge one of the least obstructive ways to support the ICC. While the ICC’s investigation in Ukraine enjoys political support from around the world,225 the Office of the Prosecutor needs to collect significant evidence from diverse sources to successfully convict suspects of mass atrocity crimes.226 If the United States can take more consistent steps to share information that may become evidence in an ICC prosecution, the ICC can achieve greater legitimacy that prompts other State Parties to contribute their share.227
The legislative fix should also seek ways to incorporate technological developments within information-sharing. Since much documentary evidence resides on the servers of U.S. corporations, the ICC cannot fulfill its mandate to prosecute international crimes without access to this information.228 U.S. governmental support of the ICC’s ability to engage with tech companies, seek mutual legal assistance support from State Parties, request that U.S. courts assist with discovery, or use diplomatic channels with the U.S. Department of State is generally allowable under the Dodd Amendment criteria.229 Therefore, Congress should recognize these measures as valid forms of ICC support.
Statutory reforms should include provisions that harmonize interagency standard-setting on the ICC. Given executive branch agencies’ varied positions on the ICC,230 effective improvements to U.S.-ICC relations require that the U.S. government create a forum for opposing views within the government to be shared and misunderstandings to be corrected when needed.231 Such a forum will allow the United States to speak with one voice and help achieve consistency between each agency’s relationship with the ICC.232 Greater executive branch attorney involvement with the ICC could convince Congress to repeal legislation like the FRAA, which limits opportunities for U.S. economic and legal personnel support.233 Although the Dodd Amendment currently permits staffing and training to ICC personnel on circumstances involving foreign nationals convicted of one of the three core crimes, these forms of assistance could not be provided for broader ICC purposes.234
Conclusion
When the United States attended the 1998 Rome Conference, its officials intended to build an international criminal court which the United States would one day join.235 The instructions were not to stand in permanent opposition to it. This Note argues that deliberate complications that stand in the way of U.S. cooperation on a domestic level were not part of the instructions either.
Russia’s invasion of Ukraine reinvigorated the international community’s interest in seeking strengthened ICC investigations and prosecutions.236 Current executive and legislative branch discourse on the ICC ushers in a new era for the United States to codify its international legal obligations. To build upon this momentum, this Note proposes that both branches reassess statutory allowances for U.S. engagement with the ICC. Authorities already exist: ASPA’s Commander-in-Chief Waiver lends ample authority to the President on the nature of engagement while the Dodd Amendment’s language on “other foreign nationals” makes clear that the United States does not seek to contravene its longstanding protection of U.S. citizens from the ICC’s jurisdiction.237 Therefore, executive branch deference paired with congressional accountability can empower the United States to become a reliable partner in the furtherance of international justice efforts.