The Nethercutt Amendment and the International Criminal Court

Dear Friends:

As a former combat veteran, with five battle stars received with my honorable discharge after World War Two, I owe it to the forty-million people who died in that war not to remain silent in the face of official calumnies that endanger our nation and the brave young people who serve in its military forces. I write as a graduate of the Harvard Law School and a former Chief prosecutor for the United States in one of the Nuremberg war crimes trials and one who has devoted almost all of my life trying to help create a more humane and peaceful world under the rule of law.

What follows is an extract from the official US Congressional Record, House of Representatives debate on July 15, 2004, under the heading H. 5881 and H 5882. to Amend the Foreign Operations Appropriations Bill. The views expressed by the Chairman of the House of Representatives, Republican Tom DeLay of Texas, in strongly opposing the International Criminal Court (ICC) are widely shared by other members of the Republican party, as well as some conservative Democrats. The arguments advanced in opposition to the new court are, in my very considered judgment, demonstrably false and deliberately deceptive. They do not serve the interests of the United States or any of its citizens.

Extract from Congressional Record:

Amendment No. 6 offered by Mr. Nethercutt: At the end of the bill (before the short title), insert the following: LIMITATION ON ECONOMIC SUPPORT FUND ASSISTANCE FOR CERTAIN FOREIGN GOVERNMENTS THAT ARE PARTIES TO THE INTERNATIONAL CRIMINAL COURT SEC. __. None of the funds made available in this Act in title II under the heading ``ECONOMIC SUPPORT FUND'' may be used to provide assistance to the government of a country that is a party to the International Criminal Court and has not entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against United States personnel present in such country. The CHAIRMAN. Pursuant to the order of the House of today, the gentleman from Washington (Mr. Nethercutt) and a Member opposed each will control 5 minutes. The Chair recognizes the gentleman from Washington (Mr. Nethercutt)

Mr. NETHERCUTT. Mr. Chairman,...We have an obligation to protect our Armed Forces from unconstitutional extraterritorial prosecution. Moreover, this amendment sends a powerful message to the world community that when we commit U.S. troops overseas we will insist that they be protected by Article 98 agreements, if the Security Council will not do its part.... The CHAIRMAN. The gentleman from Arizona (Mr. Kolbe) is recognized for 5 minutes. Mr. KOLBE. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, let me just say that I agree with the motivations of this amendment, but I absolutely have to oppose the substance of it. The reason I do so is because I think it is going to accomplish exactly the opposite of the intent of this amendment....If we accept it, the U.S. will be hamstringing itself, placing a straitjacket on its diplomatic tools, when we have a lot of U.S. national security objectives that must carry the same or equal weight as securing Article 98 agreements. I urge a ``no'' vote on this... Mr. Chairman, I am happy to yield 1 minute to the gentleman from Texas (Mr. DeLay), the majority leader.

Mr. DeLAY. Mr. Chairman, Let me see if I have got this straight: The United Nations has created an International Criminal Court, a shady amalgam of every bad idea ever cooked up for world government. The United States, its President, this Congress and the American people has categorically, unequivocally and completely rejected the ICC and its insistence on threatening the American people with prosecution. We reject its laughable legitimacy, we reject its U.N.-American denial of civil rights, and we reject its anti-American politics. And yet the ICC still asserts jurisdiction over the American people, including American soldiers fighting the war on terror and still salivates at the prospect of prosecuting one of us for anything the U.N. does not like. Now, some nations who receive economic support from the United States may use the money we give them to arrest and hand over American citizens to the U.N.'s kangaroo court? I do not think so. President Bush has shown great leadership by removing the United States from the treaty creating the ICC, and Congress has passed legislation, the American Servicemembers Protection Act, to ensure our soldiers and peacekeepers around the world are protected from prosecution in it.

Federal law now requires all countries who seek American military assistance sign an agreement assuring us they will not hand over our soldiers to the ICC; and, since its enactment, more than 90 countries have signed such an agreement. The ASPA has proven to be a valuable tool in the war on terror, and the Nethercutt amendment takes that leverage to the next step, making American economic support contingent on a promise not to turn over our troops to the ICC. The Nethercutt amendment will forestall any attempt by a foreign country that receives American economic aid to arrest and extradite American soldiers to Kofi Annan's kangaroo court. Now, let us be real clear: The ICC presents a clear and present danger to the war on terror and Americans who are fighting it all over the world. The United Nations just last month refused to extend protection from the ICC to American troops abroad. This was at once an ominous sign of things to come and an urgent call for Congress to do its duty and protect our men and women in uniform. That is exactly what this vote is. If you want to go home to your constituents and tell them that you think that their tax dollars should go to foreign countries who allow American soldiers to be imprisoned and shipped off to Brussels without their constitutional rights, then, by all means, vote no on the Nethercutt amendment. If, however, you think American troops should retain their human and constitutional rights even when they step on foreign soil and if you think American economic support should only go to countries who guarantee such protection for our soldiers, then stand with the American people, the President and the men and women winning the war on terror and vote yes.... (End of extract)