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The Binding Interpretation by the Office of Legal Counsel of the Laws Constraining US Engagement with the ICC (Part III)

The Binding Interpretation by the Office of Legal Counsel of the Laws Constraining US Engagement with the ICC (Part III)

(Editor’s Observe: This is Section III of a Just Protection Symposium on United States help for the Intercontinental Prison Court’s Have confidence in Fund for Victims. Other article content in the symposium can be located right here.)

Element I of this Symposium discussed the explanations why the United States really should contribute to the Global Criminal Court’s (ICC) Trust Fund for Victims. Part II outlined the passage, objective, and applicable provisions of the American Servicemembers Protection Act of 2002 (ASPA), and discussed the new amendments to that laws by means of the 2023 Consolidated Appropriations Act (CAA). This write-up facts the Workplace of Legal Counsel’s (OLC) binding interpretation of the ASPA and the earlier Admiral James W. Nance and Meg Donovan Overseas Relations Authorization Act, FY 2000-2001 (FRAA).

Examining these two regulations jointly, the OLC decided that the United States may not give cash to the ICC, but may well interact in diplomatic activity relating to the ICC, and may possibly give global guidance, education, and even depth governing administration employees to the ICC “where people varieties of guidance are limited to particular circumstances involving international nationals accused of genocide, war crimes, or crimes from humanity.”

The Obama Administration’s Engagement with the ICC

In 2009, the Obama administration showed an early interest in deepening U.S. engagement with the ICC. In her 1st speech just before the United Nations Safety Council, Ambassador Susan Rice explained the ICC as “an important and credible instrument for attempting to hold accountable the senior leadership accountable for atrocities fully commited in the Congo, Uganda and Darfur.” In March 2009, following the ICC issued an arrest warrant for Sudanese President Omar al-Bashir, the Obama administration reportedly launched a assessment of its plan toward Sudan, such as a re-examination of whether or not the United States should formally be a part of the ICC.

By that time, two items of federal legislation constrained U.S. engagement with the ICC: the ASPAand the FRAA. To realize the contours of the constraints imposed by these legislation, Mary DeRosa, then-Lawful Adviser to the Obama Administration’s Countrywide Protection Council, asked for that OLC – a division of the Department of Justice that offers authorized suggestions, like binding authorized thoughts, to the govt branch – recommend on whether or not and how the United States could interact with the ICC without contravening domestic legislation. Specifically, DeRosa inquired:

[W]hether federal statutes bar the Government from participating in particular diplomatic actions that could be supportive of the ICC, from giving funding instantly to the ICC for unique instances, from delivering sure intercontinental help to the ICC, from training ICC personnel, and from detailing Government employees to the ICC.

In January 2010, OLC released a memorandum outlining its interpretation of the ASPA and the FRAA, using into account the views of various federal government departments and businesses (the “OLC Memo”). Its interpretation remains binding on the government branch to this day and constitutes the most latest authoritative assertion by the United States on the scope of permissible engagement with the ICC.

OLC’s Interpretation of the ASPA

As described in Component II, the ASPA was intended to protect United States persons and allies from the ICC’s jurisdiction, and imposed broad limits on the capacity of the United States to provide assistance to the Courtroom. At the end of the statute, on the other hand, is the Dodd Modification, which supplies that “[n]othing in this subchapter shall prohibit the United States from rendering aid to intercontinental endeavours to convey to justice … other international nationals accused of genocide, war crimes or crimes from humanity.” As the OLC Memo clarifies, there was originally disagreement in just the govt department as to whether the Dodd Modification qualifies or clarifies the ASPA’s constraints: that is, (1) irrespective of whether it presents an exception to ASPA’s constraints, permitting the United States to offer aid to unique ICC efforts to provide to justice overseas nationals accused of the listed crimes, or (2) whether it only clarifies that the United States is not barred from providing guidance to other intercontinental justice attempts, outside of the ICC?

Based on the textual content, reason, and legislative record of the ASPA, OLC decided that the Dodd Modification qualifies the ASPA and hence generates an exception to allow certain assistance to the ICC in situations involving foreign nationals accused of atrocity crimes. OLC reasoned that the amendment’s reference to “international efforts” incorporates the ICC beneath the plain which means of those conditions. More, the goal of the Dodd Modification, read through as a qualifying provision, does not conflict with the ASPA’s function of defending United States people, mainly because the Dodd Amendment explicitly permits United States help only to situations involving overseas nationals. Last but not least, the Modification was adopted after in depth discussion through which its sponsors discovered its exact effects as qualifying the ASPA. Dodd created very clear that he meant “international efforts” to include people of the ICC, which he explained as “the only game in city.” Senator Mark Warner, the sponsor of the ASPA, also indicated that he recognized the Modification as masking ICC initiatives just in advance of he moved to integrate the Dodd Amendment by unanimous consent. Prior to the bill’s ultimate passage, the Congressional Analysis Support publicly expressed the perspective that the Amendment applied to cooperation with the ICC.

OLC also rejected the contention that the Dodd Modification would render the waiver provisions in Sections 7422 and 7430 of the ASPA superfluous. Without a doubt, Dodd mentioned that the Amendment was essential in part because the waiver provision in Portion 7422, which calls for a binding agreement with the ICC in order to waive the ASPA’s constraints, was as well onerous and consequently just about unachievable to use in several instances. Therefore, Segment 7422 even now stays productive for any exertion to give guidance in a situation that does not fall inside of the scope of the Dodd Amendment, such as conditions involving United States nationals and the crime of aggression.

OLC hence identified that, simply because the Dodd Amendment (1) involves the ICC within the simple indicating of its textual content (2) enumerates particular criteria for its application (i.e., cases of overseas nationals accused of genocide, war crimes, or crimes towards humanity) and (3) was handed right after extensive debate for the duration of which its sponsors explained it as qualifying the ASPA, it does in actuality build a carve-out allowing the United States to render help to the ICC in accordance with its terms and with other relevant law, namely, the FRAA. This interpretation is further bolstered by the amendments to the Dodd Amendments contained in the 2023 CAA which explicitly supply for U.S. help to the ICC with investigations and prosecutions of foreign nationals relevant to the Predicament in Ukraine, “including to help victims and witnesses.” This suggests, in line with OLC’s 2010 interpretation, that the Dodd Amendment acts as a carve-out to the other prohibitions contained in the ASPA.

OLC’s Interpretation of the FRAA

Passed right before the ASPA, the FRAA prohibits resources “for use by, or for assistance of, the International Felony Court,” described as “the courtroom set up by the Rome Statute of the Global Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Institution of an Intercontinental Criminal Court docket on July 17, 1998.” In accordance to the OLC, less than the surplusage canon of statutory building, these two phrases, “for use by” and “for support of,” must each individual be provided impact they should be comprehended to prohibit various kinds of exercise in get to stay clear of rendering one particular phrase meaningless.

With this statutory framework in brain, OLC interpreted the scope of just about every phrase. In accordance to OLC, the prohibition on funds “for use by” the ICC only applies to resources that the ICC would expend in a self-directed way, which include money applied to meet up with institutional fees and to fork out any expenses related with a particular situation. Though the prohibition applies only to self-directed funding, it is categorical and applies irrespective of the way the ICC utilizes the cash.

Whilst the prohibition on resources “for aid of” the ICC appears quite broad, OLC adopted a narrower interpretation. Absent a definition of “support” in the FRAA, OLC seemed to other takes advantage of of the word in the United States Code. As an first matter, OLC identified that Congress did not intend the ASPA’s wide definition of “support” to implement to the use of the exact word in the FRAA. The ASPA consists of other cross-references to the appropriate section of the FRAA, suggesting the failure to align the definitions was not inadvertent. In addition, OLC reasoned that subsequently enacted laws, including the ASPA, suggests that this FRAA provision does not impose a sweeping bar on help to the ICC – if it did, lots of of the ASPA’s provisions would arguably be meaningless. Alternatively, OLC decided that “support of” implies “‘maintenance’ or ‘sustenance’ of the ICC as an establishment.”

As a result, according to OLC’s interpretation, the phrase “support of’ prohibits the provision of any form of aid employed to aid the ICC as an institution, alternatively than in help of a specific situation. The OLC Memo cites as illustrations of “institutional assist,” “donating a computer program, constructing a developing, or detailing staff for non-situation-specific features.”

OLC’s Conclusions

Getting these analyses collectively, OLC adopted 3 in excess of-arching principles to circumscribe United States engagement with the ICC under domestic regulation. First, the United States may well not deliver the ICC with any cash that Congress has licensed to be appropriated, regardless of no matter whether the funding is for institutional assistance or scenario-precise things to do. Notably, the OLC Memo leaves open the dilemma of unauthorized appropriations, boosting the issue only in a footnote. Second, the United States may possibly interact in diplomatic functions relating to the ICC. And 3rd, in mild of the Dodd Amendment, the United States can give informational guidance, training, and even depth governing administration workforce to the ICC “where those sorts of support are minimal to individual circumstances involving overseas nationals accused of genocide, war crimes, or crimes towards humanity.”

This interpretation is still binding on the United States and therefore continues to condition the United States’ engagement with the ICC. However, the 2023 CAA explicitly states that the United States can contribute to ICC investigations and prosecutions of foreign nationals associated to the Condition in Ukraine “notwithstanding” the FRAA’s prohibitions on resources “for use by, or for help of,” the ICC. This produces a very clear route, below the 2023 CAA, for the United States to make contributions to the Trust Fund for Victims for assistance courses associated to the Predicament in Ukraine. As mentioned in the future Part, there also exists a pathway for the United States to contribute to the Have confidence in Fund for Victims beyond its efforts in Ukraine.

The content articles in this symposium are created by various authors and represent a various variety of views. Posts I & IV are authored by Public International Regulation and Policy Team and reflect legal and plan evaluation. Content articles II & III are published by attorneys at Debevoise & Plimpton LLP, deliver authorized analysis and commentary on the subject matter, and are intended for informational needs only. The views and viewpoints expressed in these articles or blog posts mirror the sights and opinions of the specific authors and not of Debevoise & Plimpton LLP.

Picture: The Justice Office building on a foggy morning on Dec. 9, 2019, in Washington, D.C. (Picture by Samuel Corum via Getty Photos)