Wikipedia

American Service-Members' Protection Act

The American Service-Members' Protection Act, known informally as The Hague Invasion Act[1] (ASPA, Title 2 of Pub. L. 107–206 (text) (PDF), H.R. 4775, 116 Stat. 820, enacted August 2, 2002) is a United States federal law described as "a bill to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party."[2] The text of the Act has been codified as subchapter II of chapter 81 of title 22, United States Code. Implementation of the act (on Dutch soil) could require all of the remaining NATO countries to declare war on the United States.[3] While article 8 prohibits a member from invading the territory of another member, NATO has no suspension provisions [4][5]

American Service-Members' Protection Act
Great Seal of the United States
EffectiveAugust 2, 2002
Citations
Public law107-206
Statutes at Large116 Stat. 820
Legislative history
  • Introduced in the House as H.R. 4775 by Bill Young (R–FL)
  • Passed the House on May 24, 2002 (280–138)
  • Passed the Senate on June 7, 2002 (71–22)
  • Reported by the joint conference committee on July 23, 2002; agreed to by the House of Representatives on July 23, 2002 (397–32) and by the Senate on July 24, 2002 (92–7)
  • Signed into law by President George W. Bush on August 2, 2002

The Act gives the president power to use "all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court".[6]

Description

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Buildings at Maanweg 174, The Hague, where the ICC was based until 2015

The United States is not a member of the International Criminal Court (ICC). The Act authorizes the president of the United States to use "all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court". This authorization led to the act being nicknamed as "The Hague Invasion Act",[7] since the act allows the president to order U.S. military action, on countries such as Netherlands, where The Hague is located, to protect American officials and military personnel from prosecution or rescue them from custody.[8]

The bill was introduced by U.S. Senator Jesse Helms (Republican from North Carolina) and U.S. Representative Tom DeLay (Republican from Texas),[9] as an amendment to the 2002 Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks on the United States (H.R. 4775).[10] The amendment (S.Amdt 3597) was passed 75–19 by the US Senate,[11] with 30 Democrats and 45 Republicans voting in support. The bill was signed into law by President George W. Bush on August 2, 2002.

SEC. 2008. of the Act authorizes the president of the U.S. "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". The subsection (b) specifies this authority shall extend to "Covered United States persons" (members of the Armed Forces of the United States, elected or appointed officials of the United States Government, and other persons employed by or working on behalf of the United States Government) and "Covered allied persons" (military personnel, elected or appointed officials, and other persons employed by or working on behalf of the government of a NATO member country, a major non-NATO ally including Australia, Egypt, Israel, Japan, Argentina, the Republic of Korea, and New Zealand).[citation needed]

Effects and reception

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The act prohibits federal, state, and local governments and agencies (including courts and law enforcement agencies) from assisting the International Criminal Court (ICC). For example, it prohibits the extradition of any person from the U.S. to the ICC; it prohibits the transfer of classified national security information and law enforcement information to the ICC; and it prohibits agents of the court from conducting investigations in the U.S.[12]

The act also prohibits U.S. military aid to countries that are party to the ICC. However, exceptions are allowed for aid to NATO members, major non-NATO allies, Taiwan, and countries that have entered into "Article 98 agreements", agreeing not to hand over U.S. nationals to the ICC. Additionally, the act does not prohibit the U.S. from assisting in the search and capture of foreign nationals wanted for prosecution by the ICC, specifically naming Saddam Hussein, Slobodan Milošević, Omar al-Bashir and Osama bin Laden as examples.[13]

Within the European Union reaction was overwhelmingly negative. A European Parliament resolution of July 4, 2002, condemned the act as it was in its draft stage.[14]

Dutch reaction to the Act was negative, taking issue with section 2008 of the bill. The Dutch Ambassador to the United States, Boudewijn van Eenennaam, voiced his protests saying that the Dutch were "Not particularly amused by Section 2008" and that "we think the language used was ill-considered to say the least".[15] Meanwhile the Dutch House of Representatives passed a motion expressing its concern about the bill and its "detrimental" effects on trans-Atlantic relations.[16] The Danish Minister for European Affairs, Bertel Haarder, stated that the law contradicted the idea of upholding human rights and the rule of law,[17] while the German Foreign Minister Joschka Fischer penned a letter cautioning that "adopting the ASPA would open a rift between the U.S. and the European Union on this important issue [of the ICC]".[18]

The Coalition for the International Criminal Court has called the act a "dangerous symbolic opposition to international criminal justice"[19] and Human Rights Watch condemned the law.[7]

Repeal attempt

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In 2022, an attempt to repeal the bill, sponsored by US Representative Ilhan Omar, was introduced but died in Congress in committee; no vote was ever taken.[20]

See also

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References

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  1. ^ Knoops, Geert-Jan (2014). An Introduction to the Law of International Criminal Tribunals. Brill. p. 318.
  2. ^ "107th Congress 1st Session S. 1610" (PDF). www.congress.gov. Retrieved January 21, 2023.
  3. ^ "Collective defence and Article 5".
  4. ^ "What if NATO members go to war against each other?".
  5. ^ "Can Turkey be Expelled from NATO? It's Legally Possible, Whether or Not Politically Prudent". October 15, 2019.
  6. ^ "American Service-Members' Protection Act". US Department of State Archive. July 30, 2003.
  7. ^ a b "U.S.: 'Hague Invasion Act' Becomes Law". Human Rights Watch. August 3, 2002. Retrieved October 13, 2022.
  8. ^ Sutherland, John (July 8, 2002). "Who are America's real enemies?". The Guardian. Retrieved October 13, 2022.
  9. ^ "US Congress Passes Anti-ICC "Hague Invasion Act"" (PDF). Coalition for the International Criminal Court (Press release). July 26, 2002. Archived from the original (PDF) on September 26, 2007.
  10. ^ "2002 Supplemental Appropriations Act for Further Recovery From and Response To Terrorist Attacks on the United States (2002 - H.R. 4775)". GovTrack.us. Retrieved October 13, 2022.
  11. ^ "U.S. Senate: U.S. Senate Roll Call Votes 107th Congress - 2nd Session". www.senate.gov. Retrieved March 17, 2023.
  12. ^ Sen. Helms, Jesse [R-NC (November 1, 2001). "Text - S.1610 - 107th Congress (2001-2002): American Servicemembers' Protection Act of 2001". www.congress.gov. Retrieved December 1, 2024.
  13. ^ Reinalda, Bob (September 11, 2009). Routledge History of International Organizations: From 1815 to the Present Day. Routledge. ISBN 978-1-134-02404-9.
  14. ^ Malekian, Farhad (2014). Jurisprudence of International Criminal Justice. Cambridge Scholars Publishing. p. 89.
  15. ^ Murphy, Sean D. (2002). United States Practice in International Law: Volume 2, 2002-2004. Cambridge University Press. p. 309.
  16. ^ Making EU Foreign Policy National Preferences, European Norms and Common Policies. Palgrave MacMillan UK. 2011. p. 54.
  17. ^ Jorgensen, Malcolm (2020). American Foreign Policy Ideology and the International Rule of Law Contesting Power Through the International Criminal Court. Cambridge University Press. p. 180.
  18. ^ "Europe Should Oppose U.S. Law on War Crimes Court". Human Rights Watch. December 10, 2001.
  19. ^ "William Pace: The Hague Invasion Act remains dangerous". Diplomatic Council.
  20. ^ "Repeal Hague Invasion Act (2022 - H.R. 7523)". GovTrack.us. Retrieved March 13, 2024.
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