Daily Press Briefing , November 16, 2009, with Ian Kelly, Department Spokesman:
QUESTION: All right. And my last thing is today in Nairobi, Stephen Rapp, your Ambassador-at-Large for War Crimes, said that you would be sending someone to the ICC as an observer. A, is that correct? B, aren’t you treading extremely close to violating the Services Protection Act doing something like this?
MR. KELLY: Yes. Mr. Rapp is correct. We will participate in these meetings as an observer and there will be an interagency delegation comprising of State Department and Defense Department officials, which will allow us to advance, use and engage all the delegations in various matters of interest to the U.S., specifically, our concerns about the definition of a crime of aggression, which is one of the main topics for discussion at this conference. This in no way suggests that we have – we don’t – we no longer have concerns about the ICC. We do have concerns about it. We have specific concerns about assertion of jurisdiction over nationals of a nonparty state and the ability to exercise that jurisdiction without authorizations by the Security Council.
Regarding possible reference to the American Service-Members’ Protection Act, there is a law that restricts our support to the ICC. But we believe and the interagency group that looked at this believes, after carefully examining it, that attending this meeting as an observer would not violate that or any other applicable law.