II

106TH CONGRESS

2D SESSION S. 2726

To protect United States military personnel and other elected and appointed

officials of the United States Government against criminal prosecution

by an international criminal court to which the United States is not

a party.

IN THE SENATE OF THE UNITED STATES

JUNE 14, 2000

Mr. HELMS (for himself, Mr. LOTT, Mr. WARNER, Mr. HATCH, Mr. GRAMS,

and Mr. SHELBY) introduced the following bill; which was read twice and

referred to the Committee on Foreign Relations

A BILL

To protect United States military personnel and other elected

and appointed officials of the United States Government

against criminal prosecution by an international criminal

court to which the United States is not a party.

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

5 Servicemembers’ Protection Act of 2000’’.

6 SEC. 2. FINDINGS.

7 Congress makes the following findings:
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1 (1) On July 17, 1998, the United Nations Dip2 lomatic Conference of Plenipotentiaries on the Es3 tablishment of an International Criminal Court,

4 meeting in Rome, Italy, adopted the ‘‘Rome Statute

5 of the International Criminal Court’’. The vote on

6 adoption of the Statute was 120 in favor to 7

7 against, with 21 countries abstaining. The United

8 States voted against final adoption of the Rome

9 Statute.

10 (2) As of May 30, 2000, 96 countries had

11 signed the Rome Statute and 10 had ratified it. Pur12 suant to article 126 of the Rome Statute, the Stat13 ute will enter into force on the first day of the

14 month after the 60th day following the date that the

15 60th country deposits an instrument ratifying the

16 Statute.

17 (3) Since adoption of the Rome Statute, a Pre18 paratory Commission for the International Criminal

19 Court has continued to meet regularly to draft docu20 ments to implement the Rome Statute, including

21 Rules of Procedure and Evidence, definitions of Ele22 ments of Crimes, and a definition of the Crime of

23 Aggression.

24 (4) During testimony before the Congress, the

25 lead United States negotiator, Ambassador David
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1 Scheffer stated that the United States could not

2 sign the Rome Statute because certain critical nego3 tiating objectives of the United States had not been

4 achieved. As a result, he stated: ‘‘We are left with

5 consequences that do not serve the cause of inter6 national justice’’.

7 (5) Ambassador Scheffer went on to tell the

8 Congress that: ‘‘Multinational peacekeeping forces

9 operating in a country that has joined the treaty can

10 be exposed to the Court’s jurisdiction even if the

11 country of the individual peacekeeper has not joined

12 the treaty. Thus, the treaty purports to establish an

13 arrangement whereby United States armed forces

14 operating overseas could be conceivably prosecuted

15 by the international court even if the United States

16 has not agreed to be bound by the treaty. Not only

17 is this contrary to the most fundamental principles

18 of treaty law, it could inhibit the ability of the

19 United States to use its military to meet alliance ob20 ligations and participate in multinational operations,

21 including humanitarian interventions to save civilian

22 lives. Other contributors to peacekeeping operations

23 will be similarly exposed.’’.

24 (6) Any Americans prosecuted by the Inter25 national Criminal Court will, under the Rome Stat-
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1 ute, be denied many of the procedural protections to

2 which all Americans are entitled under the Bill of

3 Rights to the United States Constitution, including,

4 among others, the right to trial by jury, the right

5 not to be compelled to provide self-incriminating tes6 timony, and the right to confront and cross-examine

7 all witnesses for the prosecution.

8 (7) American servicemen and women deserve

9 the full protection of the United States Constitution

10 when they are deployed around the world to protect

11 the vital national interests of the United States. The

12 United States Government has an obligation to pro13 tect American servicemen and women, to the max14 imum extent possible, against criminal prosecutions

15 carried out by United Nations officials under proce16 dures that deny them their constitutional rights.

17 (8) In addition to exposing American service18 men and women to the risk of international criminal

19 prosecution, the Rome Statute creates a risk that

20 the President and other senior elected and appointed

21 officials of the United States Government may be

22 prosecuted by the International Criminal Court. Par23 ticularly if the Preparatory Commission agrees on a

24 definition of the Crime of Aggression, senior United

25 States officials may be at risk of criminal prosecu-
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1 tion for national security decisions involving such

2 matters as responding to acts of terrorism, pre3 venting the proliferation of weapons of mass destruc4 tion, and deterring aggression. No less than Amer5 ican servicemen and women, senior officials of the

6 United States Government deserve the full protec7 tion of the United States Constitution with respect

8 to official actions taken by them to protect the na9 tional interests of the United States.

10 SEC. 3. TERMINATION OF PROHIBITIONS OF THIS ACT.

11 The prohibitions and requirements of sections 4, 5,

12 6, and 7 shall cease to apply, and the authority of section

13 8 shall terminate, if the United States becomes a party

14 to the International Criminal Court pursuant to a treaty

15 made under article II, section 2, clause 2 of the Constitu16 tion of the United States.

17 SEC. 4. PROHIBITION ON COOPERATION WITH THE INTER18 NATIONAL CRIMINAL COURT.

19 (a) CONSTRUCTION.—The provisions of this section

20 apply only to cooperation with the International Criminal

21 Court and shall not be construed to apply to cooperation

22 with an ad hoc international criminal tribunal established

23 by the United Nations Security Council before or after the

24 date of the enactment of this Act to investigate and pros-
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1 ecute war crimes committed in a specific country or during

2 a specific conflict.

3 (b) PROHIBITION ON RESPONDING TO REQUESTS

4 FOR COOPERATION.—No agency or entity of the United

5 States Government or of any State or local government,

6 including any court, may cooperate with the International

7 Criminal Court in response to a request for cooperation

8 submitted by the International Criminal Court pursuant

9 to Part 9 of the Rome Statute.

10 (c) PROHIBITION ON SPECIFIC FORMS OF COOPERA11 TION.—No agency or entity of the United States Govern12 ment or of any State or local government, including any

13 court, may undertake any action described in the following

14 articles of the Rome Statute with the purpose or intent

15 of cooperating with, or otherwise providing support or as16 sistance to, the International Criminal Court:

17 (1) Article 89 (relating to arrest, extradition,

18 and transit of suspects).

19 (2) Article 92 (relating to provisional arrest of

20 suspects).

21 (3) Article 93 (relating to seizure of property,

22 asset forfeiture, execution of searches and seizures,

23 service of warrants and other judicial process, taking

24 of evidence, and similar matters).
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1 (d) RESTRICTION ON ASSISTANCE PURSUANT TO

2 MUTUAL LEGAL ASSISTANCE TREATIES.—The United

3 States shall exercise its rights to limit the use of assist4 ance provided under all treaties and executive agreements

5 for mutual legal assistance in criminal matters, multilat6 eral conventions with legal assistance provisions, and ex7 tradition treaties, to which the United States is a party,

8 and in connection with the execution or issuance of any

9 letter rogatory, to prevent the transfer to, or other use

10 by, the International Criminal Court of any assistance

11 provided by the United States under such treaties and let12 ters rogatory.

13 (e) PROHIBITION ON INVESTIGATIVE ACTIVITIES OF

14 AGENTS.—No agent of the International Criminal Court

15 may conduct, in the United States or any territory subject

16 to the jurisdiction of the United States, any investigative

17 activity relating to a preliminary inquiry, investigation,

18 prosecution, or other proceeding at the International

19 Criminal Court.

20 SEC. 5. RESTRICTION ON UNITED STATES PARTICIPATION

21 IN CERTAIN UNITED NATIONS PEACE22 KEEPING OPERATIONS.

23 (a) POLICY.—Effective beginning on the date that

24 the Rome Statute enters into force pursuant to article 126

25 of the Rome Statute, the President should use the voice
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1 and vote of the United States in the United Nations Secu2 rity Council to ensure that each resolution of the Security

3 Council authorizing a peacekeeping operation pursuant to

4 chapter VI or VII of the charter of the United Nations

5 permanently exempts United States military personnel

6 participating in such peacekeeping operation from crimi7 nal prosecution by the International Criminal Court for

8 actions undertaken by such personnel in connection with

9 the operation.

10 (b) RESTRICTION.—United States military personnel

11 may not participate in a peacekeeping operation author12 ized by the United Nations Security Council pursuant to

13 chapter VI or VII of the charter of the United Nations

14 on or after the date that the Rome Statute enters into

15 effect pursuant to article 126 of the Rome Statute, unless

16 the President has submitted to the appropriate congres17 sional committees a certification described in subsection

18 (c) with respect to such peacekeeping operation.

19 (c) CERTIFICATION.—The certification referred to in

20 subsection (b) is a certification by the President that

21 United States military personnel are able to participate

22 in a peacekeeping operation without risk of criminal pros23 ecution by the International Criminal Court because—

24 (1) in authorizing the peacekeeping operation,

25 the United Nations Security Council permanently
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1 exempted United States military personnel partici2 pating in the operation from criminal prosecution by

3 the International Criminal Court for actions under4 taken by them in connection with the operation;

5 (2) each country in which United States mili6 tary personnel participating in the peacekeeping op7 eration will be present is either not a party to the

8 International Criminal Court or has entered into an

9 agreement in accordance with Article 98 of the

10 Rome Statute preventing the International Criminal

11 Court from proceeding against United States per12 sonnel present in that country; or

13 (3) the President has taken other appropriate

14 steps to guarantee that United States military per15 sonnel participating in the peacekeeping operation

16 will not be prosecuted by the International Criminal

17 Court for actions undertaken by such personnel in

18 connection with the operation.

19 SEC. 6. PROHIBITION ON DIRECT OR INDIRECT TRANSFER

20 OF CERTAIN CLASSIFIED NATIONAL SECU21 RITY INFORMATION TO THE INTERNATIONAL

22 CRIMINAL COURT.

23 (a) DIRECT TRANSFER.—Not later than the date on

24 which the Rome Statute enters into force, the President

25 shall ensure that appropriate procedures are in place to
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1 prevent the transfer of classified national security infor2 mation to the International Criminal Court.

3 (b) INDIRECT TRANSFER.—Not later than the date

4 on which the Rome Statute enters into force, the President

5 shall ensure that appropriate procedures are in place to

6 prevent the transfer of classified national security infor7 mation relevant to matters under consideration by the

8 International Criminal Court to the United Nations and

9 to the government of any country that is a party to the

10 International Criminal Court unless the United Nations

11 or that government, as the case may be, has provided writ12 ten assurances that such information will not be made

13 available to the International Criminal Court.

14 SEC. 7. PROHIBITION OF UNITED STATES MILITARY ASSIST15 ANCE TO PARTIES TO THE INTERNATIONAL

16 CRIMINAL COURT.

17 (a) PROHIBITION OF MILITARY ASSISTANCE.—Sub18 ject to subsections (b), (c), and (d), no United States mili19 tary assistance may be provided to the government of a

20 country that is a party to the International Criminal

21 Court.

22 (b) WAIVER.—The President may waive the prohibi23 tion of subsection (a) with respect to a particular country

24 if the President determines and reports to the appropriate

25 congressional committees that such country has entered
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1 into an agreement with the United States pursuant to Ar2 ticle 98 of the Rome Statute preventing the International

3 Criminal Court from proceeding against United States

4 personnel present in such country.

5 (c) SPECIAL AUTHORITIES.—The prohibition of sub6 section (a) shall be subject to the special authorities of

7 section 614 of the Foreign Assistance Act of 1961 and

8 the applicable conditions and limitations under such sec9 tion.

10 (d) EXEMPTION.—The prohibition of subsection (a)

11 shall not apply to the government of any country that is—

12 (1) a NATO member country, or

13 (2) a major non-NATO ally (including, inter

14 alia, Australia, Egypt, Israel, Japan, the Republic of

15 Korea, and New Zealand).

16 SEC. 8. AUTHORITY TO FREE UNITED STATES MILITARY

17 PERSONNEL AND CERTAIN OTHER PERSONS

18 HELD CAPTIVE BY OR ON BEHALF OF THE

19 INTERNATIONAL CRIMINAL COURT.

20 (a) AUTHORITY.—The President is authorized to use

21 all means necessary and appropriate to bring about the

22 release from captivity of any person described in sub23 section (b) who is being detained or imprisoned against

24 that person’s will by or on behalf of the International

25 Criminal Court.
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1 (b) PERSONS AUTHORIZED TO BE FREED.—The au2 thority of subsection (a) shall extend to the following per3 sons:

4 (1) United States military personnel, elected or

5 appointed officials of the United States Government,

6 and other persons employed by or working on behalf

7 of the United States Government.

8 (2) Military personnel, elected or appointed offi9 cials, and other persons employed by or working on

10 behalf of the government of a NATO member coun11 try or major non-NATO ally (including, inter alia,

12 Australia, Egypt, Israel, Japan, the Republic of

13 Korea, and New Zealand) that is not a party to the

14 International Criminal Court, upon the request of

15 such government.

16 (3) Individuals detained or imprisoned for offi17 cial actions taken while the individual was a person

18 described in paragraph (1) or (2), and in the case

19 of such individuals described in paragraph (2), upon

20 the request of such government.

21 (c) CONSTRUCTION.—Subsection (a) shall not be con22 strued to authorize the payment of bribes or the provision

23 of other incentives to induce the release from captivity of

24 a person described in subsection (b).
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1 SEC. 9. STATUS OF FORCES AGREEMENTS.

2 (a) REPORT ON STATUS OF FORCES AGREEMENTS.—

3 Not later than 6 months after the date of the enactment

4 of this Act, the President shall transmit to the appropriate

5 congressional committees a report evaluating the degree

6 to which each existing status of forces agreement with a

7 foreign government, or other similar international agree8 ment, protects United States military and other personnel

9 from extradition to the International Criminal Court

10 under Article 98 of the Rome Statute.

11 (b) PLAN FOR ACHIEVING ENHANCED PROTECTION

12 OF UNITED STATES MILITARY PERSONNEL.—Not later

13 than 1 year after the date of the enactment of this Act,

14 the President shall transmit to the appropriate congres15 sional committees a plan for amending existing status of

16 forces agreements, or negotiating new international agree17 ments, in order to achieve the maximum protection avail18 able under Article 98 of the Rome Statute for United

19 States military and other personnel in those countries

20 where maximum protection under Article 98 has not al21 ready been achieved.

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

23 under subsection (a), and the plan under subsection (b),

24 or appropriate parts thereof, may be submitted in classi25 fied form.
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1 SEC. 10. ALLIANCE COMMAND ARRANGEMENTS.

2 (a) REPORT ON ALLIANCE COMMAND ARRANGE3 MENTS.—Not later than 6 months after the date of the

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

5 appropriate congressional committees a report with re6 spect to each military alliance to which the United States

7 is party—

8 (1) describing the degree to which United

9 States military personnel may, in the context of mili10 tary operations undertaken by or pursuant to that

11 alliance, be placed under the command or oper12 ational control of foreign military officers subject to

13 the jurisdiction of the international criminal court

14 because they are nationals of a party to the inter15 national criminal court, and

16 (2) evaluating the degree to which United

17 States military personnel engaged in military oper18 ations undertaken by or pursuant to that alliance

19 may be exposed to greater risks as a result of being

20 placed under the command or operational control of

21 foreign military officers subject to the jurisdiction of

22 the international criminal court.

23 (b) PLAN FOR ACHIEVING ENHANCED PROTECTION

24 OF UNITED STATES MILITARY PERSONNEL.—Not later

25 than one year after the date of the enactment of this Act,

26 the President shall transmit to the appropriate congres-
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1 sional committees a plan for modifying command and

2 operational control arrangements within military alliances

3 to which the United States is a party to reduce any risks

4 to United States military personnel identified pursuant to

5 subsection (a)(2).

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

7 under subsection (a), and the plan under subsection (b),

8 or appropriate parts thereof, may be submitted in classi9 fied form.

10 SEC. 11. WITHHOLDINGS.

11 Funds withheld from the United States share of as12 sessments to the United Nations or any other inter13 national organization pursuant to section 705 of the Ad14 miral James W. Nance and Meg Donovan Foreign Rela15 tions Authorization Act, Fiscal Years 2000 and 2001 (as

16 enacted by section 1000(a)(7) of Public Law 106–113;

17 113 Stat. 1501A–460), are authorized to be transferred

18 to the Embassy Security, Construction and Maintenance

19 Account of the Department of State.

20 SEC. 12. DEFINITIONS.

21 As used in this Act and in sections 705 and 706 of

22 the Admiral James W. Nance and Meg Donovan Foreign

23 Relations Authorization Act, Fiscal Years 2000 and 2001,

24 the following terms have the following meanings:
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1 (1) APPROPRIATE CONGRESSIONAL COMMIT2 TEES.—The term ‘‘appropriate congressional com3 mittees’’ means the Committee on International Re4 lations of the House of Representatives and the

5 Committee on Foreign Relations of the Senate.

6 (2) CLASSIFIED NATIONAL SECURITY INFORMA7 TION.—The term ‘‘classified national security infor8 mation’’ means information that is classified or clas9 sifiable under Executive Order 12958 or a successor

10 executive order.

11 (3) EXTRADITION.—The terms ‘‘extradition’’

12 and ‘‘extradite’’ include both ‘‘extradition’’ and ‘‘sur13 render’’ as those terms are defined in article 102 of

14 the Rome Statute.

15 (4) INTERNATIONAL CRIMINAL COURT.—The

16 term ‘‘International Criminal Court’’ means the

17 court established by the Rome Statute.

18 (5) MAJOR NON-NATO ALLY.—The term ‘‘major

19 non-NATO ally’’ means a country that has been so

20 designated in accordance with section 517 of the

21 Foreign Assistance Act of 1961.

22 (6) PARTY TO THE INTERNATIONAL CRIMINAL

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

24 Criminal Court’’ means a government that has de25 posited an instrument of ratification, acceptance, ap-
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1 proval, or accession to the Rome Statute, and has

2 not withdrawn from the Rome Statute pursuant to

3 Article 127 thereof.

4 (7) PEACEKEEPING OPERATION AUTHORIZED

5 BY THE UNITED NATIONS SECURITY COUNCIL PUR6 SUANT TO CHAPTER VI OF VII OF THE CHARTER OF

7 THE UNITED NATIONS.—The term ‘‘peacekeeping

8 operation authorized by the United Nations Security

9 Council pursuant to chapter VI of VII of the charter

10 of the United Nations’’ means any military oper11 ation to maintain or restore international peace and

12 security that—

13 (A) is authorized by the United Nations

14 Security Council pursuant to chapter VI or VII

15 of the charter of the United Nations, and

16 (B) is paid for from assessed contributions

17 of United Nations members that are made

18 available for peacekeeping activities.

19 (8) ROME STATUTE.—The term ‘‘Rome Stat20 ute’’ means the Rome Statute of the International

21 Criminal Court, adopted by the United Nations Dip22 lomatic Conference of Plenipotentiaries on the Es23 tablishment of an International Criminal Court on

24 July 17, 1998.
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1 (9) SUPPORT.—The term ‘‘support’’ means as2 sistance of any kind, including material support,

3 services, intelligence sharing, law enforcement co4 operation, the training or detail of personnel, and

5 the arrest or detention of individuals.

6 (10) UNITED STATES MILITARY ASSISTANCE.—

7 The term ‘‘United States military assistance’’

8 means—

9 (A) assistance provided under chapters 2

10 through 6 of part II of the Foreign Assistance

11 Act of 1961 (22 U.S.C. 2311 et seq.);

12 (B) defense articles or defense services fur13 nished with the financial assistance of the

14 United States Government, including through

15 loans and guarantees; or

16 (C) military training or education activities

17 provided by any agency or entity of the United

18 States Government.

19 Such term does not include activities reportable

20 under title V of the National Security Act of 1947

21 (50 U.S.C. 413 et seq.).

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