Bush-era Law Allows U.S. to Free Netanyahu if Held by ICC

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A law signed by President George W. Bush in 2002, the American Servicemembers’ Protection Act (ASPA), bars the United States from cooperating with the International Criminal Court (ICC) in pursuing warrants against Israel.

Moreover, the law gives authority to the president “to use all means necessary and appropriate to bring about the release of any person … who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”

That provision applies to American personnel as well as to Israelis and other close U.S. allies.

The ICC announced Monday that it will pursue warrants against Israel Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, in addition to three Hamas terrorist leaders.

Netanyahu and his political opponents were united in their condemnation of the ICC announcement. Netanyahu also posted a video on X/Twitter in which he accused The Hague of antisemitism in equating Israel and Hamas terrorists.

President Joe Biden reacted in outrage — even though he himself revoked sanctions on the ICC that had been established by then-President Donald Trump in 2020 to stop the ICC from investigating the U.S. and allies that are not party to the ICC.

A Bush-era law actually prevents the U.S. from cooperating in any way with the ICC’s controversial prosecutions.

The ASPA was designed for the war against terror, knowing that terrorists violate international law on the attack, but exploit it on the defense, hiding among civilians and deliberately exposing them to harm, to discourage responses.

It specifically provides that “no United States Court, and no agency or entity of any State or local government, including any court, may cooperate with the International Criminal Court in response to a request for cooperation submitted by the International Criminal Court pursuant to the Rome Statute.” The law also allows the U.S. to free any American who is detained by the ICC — a provision that led critics of the law to call it the “Hague Invasion Act.”

The law extends the same protections to military and government officials of major non-NATO allies, including “Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea, and New Zealand” and Taiwan.

Human Rights Watch, an anti-Israel organization, complained at the time that the ASPA “authorizes the use of military force to liberate any American or citizen of a U.S.-allied country” from the ICC facilities in The Hague.

Joel B. Pollak
Joel B. Pollak
South African-American conservative political commentator, writer, radio host, and attorney.

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