Cardozo Law Review de•novo

Volume

2025

First Page

23

Last Page

56

Publication Date

2025

Document Type

Note

Abstract

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.

Keywords

Crimes, Crimes Against Humanity, Criminal Law and Procedure, International Criminal Court, Courts, International Law, Politics (General), Constitutional Law, Jurisdiction

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