II

107TH CONGRESS

1ST SESSION S. 1296

To provide for the protection of the due process rights of United States

citizens (including United States servicemembers) before foreign tribunals, including the International Criminal Court, for the prosecution

of war criminals, and for other purposes.

IN THE SENATE OF THE UNITED STATES

AUGUST 1, 2001

Mr. DODD introduced the following bill; which was read twice and referred to

the Committee on Foreign Relations

A BILL

To provide for the protection of the due process rights of

United States citizens (including United States

servicemembers) before foreign tribunals, including the

International Criminal Court, for the prosecution of war

criminals, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘American Citizens’

5 Protection and War Criminal Prosecution Act of 2001’’.

6 SEC. 2. FINDINGS.

7 Congress makes the following findings:
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1 (1) Since the Nuremberg and Tokyo Tribunals

2 were convened following World War II, the United

3 States has been the world’s leading proponent of

4 international justice. Today, the United States is

5 pursuing justice for the architects of genocide and

6 other gross crimes in Cambodia, East Timor, Rwan7 da, Sierra Leone, and the former Yugoslavia.

8 (2) Bringing the perpetrators of genocide, war

9 crimes, and crimes against humanity to justice is

10 consistent with United States national interests and

11 fundamental values.

12 (3) Such crimes cause massive humanitarian

13 tragedies, and refugee emergencies, that often sig14 nificantly affect United States national interests.

15 (4) The International Criminal Court will be a

16 permanent court designed to investigate and bring to

17 justice individuals who commit war crimes, crimes

18 against humanity, and genocide. The International

19 Criminal Court will be established under the Rome

20 Statute, a treaty adopted in Rome on July 17, 1998,

21 at a United Nations diplomatic conference.

22 (5) On December 31, 2000, the United States

23 signed the Rome Statute. As of June 28, 2001, 139

24 countries have signed the treaty and 36 countries

25 have ratified it. Every member of the European
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1 Union and 18 of 19 members of the North Atlantic

2 Treaty Organization have signed the Rome Statute.

3 (6) United States servicemembers and United

4 States officials involved in national security affairs

5 deserve the full protection of the United States Gov6 ernment and should not be the subject of frivolous

7 or politically motivated prosecutions by the Inter8 national Criminal Court or any other foreign tri9 bunal.

10 (7) United States negotiators succeeded in en11 suring that the Rome Statute contains numerous

12 safeguards designed to protect United States citi13 zens, including due process rights that former State

14 Department Legal Adviser Monroe Leigh has called

15 ‘‘more detailed and comprehensive’’ than those con16 tained in the United States Bill of Rights. The De17 partment of Justice has never objected to the Rome

18 Statute on constitutional grounds.

19 (8) Under the Rome Statute, the International

20 Criminal Court must defer to United States jurisdic21 tion in cases involving United States citizens or serv22 ice personnel. The International Criminal Court may

23 proceed in such cases only if it determines that the

24 United States has decided not to prosecute the per25 son concerned and that the decision resulted from
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1 the unwillingness or inability of the United States

2 genuinely to prosecute the matter.

3 (9) Upon signing the Rome Statute, President

4 Clinton stated he did not intend to submit the Rome

5 Statute in its present form to the Senate for advice

6 and consent to ratification. The Bush Administra7 tion has also stated that it will not seek the Senate’s

8 advice and consent to ratification of the Rome Stat9 ute.

10 (10) Many issues important to United States

11 interests are still being negotiated by signatories to

12 the Rome Statute. Continued United States engage13 ment with the International Criminal Court can help

14 protect United States interests.

15 SEC. 3. DEFINITIONS.

16 In this Act:

17 (1) APPROPRIATE CONGRESSIONAL COMMIT18 TEES.—The term ‘‘appropriate congressional com19 mittees’’ means the Committee on Foreign Relations

20 of the Senate and the Committee on International

21 Relations of the House of Representatives.

22 (2) CLASSIFIED NATIONAL SECURITY INFORMA23 TION.—The term ‘‘classified national security infor24 mation’’ means information that is classified or clas-
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1 sifiable under Executive Order 12958 or a successor

2 executive order.

3 (3) INTERNATIONAL CRIMINAL COURT.—The

4 term ‘‘International Criminal Court’’ means the

5 court established by the Rome Statute.

6 (4) PARTY TO THE INTERNATIONAL CRIMINAL

7 COURT.—The term ‘‘party to the International

8 Criminal Court’’ means a government that has de9 posited an instrument of ratification, acceptance, ap10 proval, or accession to the Rome Statute, and has

11 not withdrawn from the Rome Statute pursuant to

12 Article 127 thereof.

13 (5) ROME STATUTE.—The term ‘‘Rome Stat14 ute’’ means the Rome Statute of the International

15 Criminal Court, adopted by the United Nations Dip16 lomatic Conference of Plenipotentiaries on the Es17 tablishment of an International Criminal Court on

18 July 17, 1998.

19 (6) UNITED STATES SERVICEMEMBER.—The

20 term ‘‘United States servicemember’’ means any per21 son that is subject to the provisions of chapter 47

22 of title 10, United States Code (relating to the Uni23 form Code of Military Justice).
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1 SEC. 4. STATEMENT OF POLICY.

2 It is the sense of Congress that the United States

3 should—

4 (1) maintain a policy of fully supporting the

5 due process rights of all United States citizens be6 fore foreign tribunals, including before the Inter7 national Criminal Court;

8 (2) continue to participate in negotiations of

9 the Preparatory Commission of the International

10 Criminal Court and as an observer in the Assembly

11 of States Parties in order to—

12 (A) ensure that the rules of procedure and

13 evidence and elements of crimes adopted by the

14 International Criminal Court conform to United

15 States standards of due process, are formally

16 adopted by the Assembly, and fairly applied by

17 the International Criminal Court’s judges and

18 prosecutors;

19 (B) seek a definition of the crime of ag20 gression under the Rome Statute that is con21 sistent with international law and fully respects

22 the right of self-defense of the United States

23 and its allies; and

24 (C) ensure that United States interests are

25 protected in the negotiations over the remaining
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1 elements of the International Criminal Court

2 regime;

3 (3) provide appropriate diplomatic and legal as4 sistance to United States citizens, especially United

5 States servicemembers and their dependents, who

6 face prosecution without full due process in any

7 forum, including, if applicable, before the Inter8 national Criminal Court; and

9 (4) undertake, in all diplomatic negotiations re10 lated to international legal matters, to ensure that

11 no United States citizen, especially United States

12 servicemembers and their dependents, will face frivo13 lous prosecutions or prosecutions without full due

14 process of law.

15 SEC. 5. POLICY OF JUDICIAL ASSISTANCE AND PROTEC16 TION FOR UNITED STATES CITIZENS AND

17 SERVICEMEMBERS; STUDY AND REPORT.

18 (a) PROHIBITION.—The United States shall not take

19 any action to extradite or otherwise make available any

20 United States citizen or United States servicemember to

21 the International Criminal Court—

22 (1) if the United States is exercising its right

23 under the Rome Statute to investigate or prosecute

24 the crime under title 18, United States Code, or
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1 chapter 47 of title 10, United States Code (relating

2 to the Uniform Code of Military Justice); or

3 (2)(A) if, after any such investigation, no rea4 sonable basis has been found to proceed with a pros5 ecution of such person; or

6 (B) if, after prosecution for such crime, such

7 person has been acquitted.

8 (b) RIGHT TO INVESTIGATE AND PROSECUTE

9 UNDER UNITED STATES LAW.—If a United States citizen

10 or United States servicemember is accused of a crime

11 under the Rome Statute, the United States shall in all

12 cases fully exercise its right under the Rome Statute to

13 investigate and, if appropriate, to prosecute the crime

14 under title 18, United States Code, or chapter 47 of title

15 10, United States Code (relating to the Uniform Code of

16 Military Justice), unless the President determines that it

17 is not in the national interest to do so.

18 (c) STUDY AND REPORT.—

19 (1) STUDY.—The Attorney General, the Sec20 retary of Defense, and the Secretary of State shall

21 jointly conduct a study consisting of a review of the

22 crimes defined under the Rome Statute and consid23 eration of what amendments to title 18, United

24 States Code, and chapter 47 of title 10, United

25 States Code (relating to the Uniform Code of Mili-
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1 tary Justice) may be necessary to ensure that the

2 United States can fully exercise its rights under

3 Part 2 of the Rome Statute.

4 (2) REPORT.—Not later than 180 days after

5 the date of enactment of this Act, the Attorney Gen6 eral, the Secretary of Defense, and the Secretary of

7 State shall jointly submit to the appropriate congres8 sional committees a report setting forth the findings

9 of the study conducted under paragraph (1), includ10 ing any recommendations for the enactment of legis11 lation making the amendments described in that

12 paragraph.

13 (d) PROTECTIONS FOR UNITED STATES DEFEND14 ANTS BEFORE THE INTERNATIONAL CRIMINAL COURT.—

15 If a case involving a United States citizen or United States

16 servicemember is found admissible by the International

17 Criminal Court (within the meaning of Article 17 of the

18 Rome Statute), then the President shall—

19 (1) use all appropriate diplomatic and legal re20 sources to ensure that such person receives due

21 process (including, in the case of a person entitled

22 to assistance under section 1037 of title 10, rep23 resentation and other assistance in the manner pro24 vided in that section); and
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1 (2) provide for the defendant whatever excul2 patory evidence may be available.

3 SEC. 6. REPORTING REQUIREMENT.

4 (a) REQUIREMENT.—Not later than one year after

5 the date of enactment of this Act, the President shall sub6 mit a report to the appropriate congressional

7 committees—

8 (1) comparing the due process protections af9 forded under the Rome Statute to those due process

10 protections afforded United States servicemembers

11 and their dependents under Status of Forces Agree12 ments, temporary Status of Forces Agreements,

13 temporary Status of Mission Agreements and Let14 ters of Assist in effect between the United States

15 and foreign nations or international organizations as

16 of the date of the report; and

17 (2) comparing the due process protections af18 forded under the Rome Statute to those due process

19 protections afforded United States citizens under bi20 lateral extradition treaties to which the United

21 States is a party, or multilateral treaties to which

22 the United States is a party and which contain a

23 provision authorizing extradition.

24 (b) ELEMENTS OF THE REPORT.—The report re25 quired by subsection (a) shall describe, in particular, the
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1 extent to which United States citizens or United States

2 servicemembers accused of crimes overseas currently are

3 provided—

4 (1) the right to a jury trial;

5 (2) the presumption of innocence;

6 (3) the privilege against compelled self-incrimi7 nation;

8 (4) the right to confront witnesses;

9 (5) the protection against double jeopardy;

10 (6) the freedom from unreasonable searches

11 and seizures;

12 (7) the right to be present at trial;

13 (8) the right to effective assistance of counsel;

14 and

15 (9) the exclusion of unlawfully obtained evi16 dence.

17 SEC. 7. POLICY OF ASSISTANCE FOR THE PROSECUTION OF

18 WAR CRIMINALS.

19 (a) SUPPORT AND ASSISTANCE AUTHORIZED.—Not20 withstanding any other law, while the United States is not

21 a party to the Rome Statute, the United States may pro22 vide support and assistance, as appropriate, on a case-by23 case basis to the International Criminal Court for the

24 prosecution of accused war criminals, particularly those

25 accused of crimes against United States servicemembers,
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1 United States citizens, or citizens of countries friendly to,

2 or allied with, the United States when the President deter3 mines that doing so would serve important United States

4 interests.

5 (b) SUPPORT AND ASSISTANCE DEFINED.—In this

6 section, the term ‘‘support and assistance’’ includes finan7 cial support, compliance with extradition requests, provi8 sion of appropriate intelligence information, legal assist9 ance, and such other assistance that is ordinarily provided

10 under treaties and executive agreements for mutual legal

11 assistance.

12 SEC. 8. PROHIBITION ON DIRECT OR INDIRECT TRANSFER

13 OF CERTAIN CLASSIFIED NATIONAL SECU14 RITY INFORMATION TO THE INTERNATIONAL

15 CRIMINAL COURT.

16 (a) DIRECT TRANSFER.—Except as provided in sec17 tion 7, and not later than the date of entry into force of

18 the Rome Statute, the President shall ensure that appro19 priate procedures are in place to prevent the transfer of

20 classified national security information to the Inter21 national Criminal Court.

22 (b) INDIRECT TRANSFER.—Except as provided in

23 section 7, and not later than the date of entry into force

24 of the Rome Statute, the President shall ensure that ap25 propriate procedures are in place to prevent the transfer
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1 of classified national security information relevant to mat2 ters under consideration by the International Criminal

3 Court to the United Nations and to the government of

4 any country that is a party to the International Criminal

5 Court unless the United Nations or that government, as

6 the case may be, has provided written assurances that

7 such information will not be made available to the Inter8 national Criminal Court.

9 SEC. 9. ALLIANCE COMMAND ARRANGEMENTS.

10 (a) REPORT ON ALLIANCE COMMAND ARRANGE11 MENTS.—Not later than 6 months after the date of the

12 enactment of this Act, the President shall transmit to the

13 appropriate congressional committees a report with re14 spect to each military alliance to which the United States

15 is party—

16 (1) describing the degree to which members of

17 the Armed Forces of the United States may, in the

18 context of military operations undertaken by or pur19 suant to that alliance, be placed under the command

20 or operational control of foreign military officers

21 subject to the jurisdiction of the International Crimi22 nal Court because they are nationals of a party to

23 the International Criminal Court; and

24 (2) evaluating the degree to which members of

25 the Armed Forces of the United States engaged in
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1 military operations undertaken by or pursuant to

2 that alliance may be exposed to greater risks as a

3 result of being placed under the command or oper4 ational control of foreign military officers subject to

5 the jurisdiction of the International Criminal Court.

6 (b) DESCRIPTION OF MEASURES TO ACHIEVE EN7 HANCED PROTECTION FOR MEMBERS OF THE ARMED

8 FORCES OF THE UNITED STATES.—Not later than one

9 year after the date of the enactment of this Act, the Presi10 dent shall transmit to the appropriate congressional com11 mittees a description of modifications to command and

12 operational control arrangements within military alliances

13 to which the United States is a party that could be made

14 in order to reduce any risks to members of the Armed

15 Forces of the United States identified pursuant to sub16 section (a)(2).

17 (c) SUBMISSION IN CLASSIFIED FORM.—The report

18 under subsection (a), and the description of measures

19 under subsection (b), or appropriate parts thereof, may

20 be submitted in classified form.

21 SEC. 10. CERTIFICATION PRIOR TO SUBMISSION OF ROME

22 STATUTE TO THE SENATE AS A TREATY.

23 Prior to submission of the Rome Statute to the Sen24 ate for its advice and consent to ratification, the President

25 should certify that the International Criminal Court has
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1 established a demonstrated record of fair and impartial

2 prosecution of genocide, war crimes, and crimes against

3 humanity.

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