I 

111TH CONGRESS 

2D SESSION H. R. 5351 

To safeguard the sovereignty and right to self-defense of the United States 

and its allies, to prohibit United States participation in the International 

Criminal Court, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 20, 2010 

Ms. ROS-LEHTINEN (for herself, Mr. MCKEON, Mr. HOEKSTRA, Mr. KING of 

New York, Mr. SMITH of Texas, Mr. PENCE, Mr. MCCOTTER, Mr. 

LAMBORN, and Mr. GARRETT of New Jersey) introduced the following 

bill; which was referred to the Committee on Foreign Affairs 

A BILL 

To safeguard the sovereignty and right to self-defense of 

the United States and its allies, to prohibit United States 

participation in the International Criminal Court, 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 Self-Defense 

5 Protection Act of 2010’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


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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 whether to proceed with the statute was 120 in favor 

7 to 7 against, with 21 countries abstaining. The 

8 United States voted against final adoption of the 

9 Rome Statute. 

10 (2) During testimony before the Congress fol11 lowing the adoption of the Rome Statute, the lead 

12 United States negotiator, Ambassador David 

13 Scheffer, stated that the United States could not 

14 sign the Rome Statute because certain critical nego15 tiating objectives of the United States had not been 

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

17 consequences that do not serve the cause of inter18 national justice.’’. 

19 (3) Ambassador Scheffer went on to tell the 

20 Congress that: ‘‘Multinational peacekeeping forces 

21 operating in a country that has joined the treaty can 

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

23 country of the individual peacekeeper has not joined 

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

25 arrangement whereby United States Armed Forces 


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1 operating overseas could be conceivably prosecuted 

2 by the international court even if the United States 

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

4 is this contrary to the most fundamental principles 

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

6 United States to use its military to meet alliance ob7 ligations and participate in multinational operations, 

8 including humanitarian interventions to save civilian 

9 lives. Other contributors to peacekeeping operations 

10 will be similarly exposed.’’. 

11 (4) Notwithstanding these concerns, President 

12 Clinton directed that the United States sign the 

13 Rome Statute on December 31, 2000. In a state14 ment issued that day, he stated that in view of the 

15 unremedied deficiencies of the Rome Statute, ‘‘I will 

16 not, and do not recommend that my successor sub17 mit the Treaty to the Senate for advice and consent 

18 until our fundamental concerns are satisfied.’’. 

19 (5) In a 2002 letter to the Secretary-General of 

20 the United Nations, Under Secretary of State John 

21 Bolton stated that ‘‘. . . in connection with the 

22 Rome Statute of the International Criminal Court 

23 . . . the United States does not intend to become a 

24 party to the treaty. Accordingly, the United States 


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1 has no legal obligations arising from its signature on 

2 December 31, 2000.’’. 

3 (6) On July 1, 2002, the Rome Statute entered 

4 into force, and the International Criminal Court was 

5 enacted. 

6 (7) Any American prosecuted by the Inter7 national Criminal Court will, under the Rome Stat8 ute, be denied procedural protections to which all 

9 Americans are entitled under the Bill of Rights to 

10 the United States Constitution, such as the right to 

11 trial by jury. 

12 (8) Members of the Armed Forces should be 

13 free from the risk of prosecution by the Inter14 national Criminal Court, especially when they are 

15 stationed or deployed around the world to protect 

16 the vital national interests of the United States. The 

17 United States Government has an obligation to pro18 tect the members of its Armed Forces, to the max19 imum extent possible, against criminal prosecutions 

20 carried out by the International Criminal Court. 

21 (9) In addition to exposing members of the 

22 Armed Forces to the risk of international criminal 

23 prosecution, the Rome Statute creates a risk that 

24 the President and other senior elected and appointed 

25 officials of the United States Government may be 


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1 prosecuted by the International Criminal Court for 

2 national security decisions involving such matters as 

3 responding to acts of terrorism, preventing the pro4 liferation of weapons of mass destruction, and deter5 ring aggression, particularly if the International 

6 Criminal Court Assembly of States Parties agrees on 

7 a definition of the Crime of Aggression over United 

8 States objections. 

9 (10) No less than members of the Armed 

10 Forces, senior officials of the United States Govern11 ment should be free from the risk of prosecution by 

12 the International Criminal Court, especially with re13 spect to official actions taken by them to protect the 

14 national interests of the United States. 

15 (11) Efforts to subject senior United States of16 ficials and members of the Armed Forces to criminal 

17 prosecution for official actions taken by them to pro18 tect the national interests of the United States could 

19 undermine the security of the United States and the 

20 right and ability of the United States and other de21 mocracies to defend themselves. 

22 (12) Any agreement on a definition of the 

23 Crime of Aggression that usurps the prerogative of 

24 the United Nations Security Council under article 

25 39 of the charter of the United Nations to ‘‘deterVerDate Mar 15 2010 00:01 May 22, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5351.IH H5351

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1 mine the existence of any . . . act of aggression’’ 

2 would contravene the charter of the United Nations 

3 and undermine deterrence. 

4 (13) In a letter dated November 29, 2000, a bi5 partisan group of twelve former senior United States 

6 Government officials expressed concern regarding 

7 the ‘‘threat to American sovereignty and inter8 national freedom of action posed by the Inter9 national Criminal Court (ICC)’’. The signatories 

10 were the following: 

11 (A) Lawrence Eagleburger, former Sec12 retary of State. 

13 (B) Brent Scowcroft, former National Se14 curity Advisor. 

15 (C) Caspar Weinberger, former Secretary 

16 of Defense. 

17 (D) Zbigniew Brzezinski, former National 

18 Security Advisor. 

19 (E) James Woolsey, former Director of 

20 Central Intelligence. 

21 (F) Jeane Kirkpatrick, former Permanent 

22 Representative of the United States to the 

23 United Nations. 

24 (G) Henry Kissinger, former Secretary of 

25 State. 


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1 (H) Donald Rumsfeld, former Secretary of 

2 Defense. 

3 (I) Richard V. Allen, former National Se4 curity Advisor. 

5 (J) George Shultz, former Secretary of 

6 State. 

7 (K) James A. Baker, III, former Secretary 

8 of State. 

9 (L) Robert M. Gates, former Director of 

10 Central Intelligence, and present Secretary of 

11 Defense. 

12 (14) In their November 29, 2000, letter, the 

13 twelve bipartisan signatories added that ‘‘any Ameri14 cans prosecuted by the ICC will be denied basic con15 stitutional rights guaranteed them under our Bill of 

16 Rights’’. 

17 (15) In their November 29, 2000, letter, the 

18 twelve bipartisan signatories further added that 

19 ‘‘Naturally we think it is essential that our nation’s 

20 military personnel be safely beyond the reach of an 

21 unaccountable international prosecutor operating 

22 under procedures inconsistent with our Constitution. 

23 War crimes and other human rights violations have 

24 long been subject to criminal penalties under United 

25 States law, and the United States has a far better 


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1 record of enforcing its laws against human rights 

2 violations than some of the countries that support 

3 the ICC.’’. 

4 (16) In their November 29, 2000, letter, the 

5 twelve bipartisan signatories further added that ‘‘we 

6 think it equally important that the President, cabi7 net officers, and other national security decision8 makers not have to fear international criminal pros9 ecution as they go about their work. The risk of 

10 international criminal prosecution will certainly chill 

11 decision-making within our government, and could 

12 limit the willingness of our national leadership to re13 spond forcefully to acts of terrorism, aggression, and 

14 other threats to American interests. Indeed, we be15 lieve that American leadership in the world could be 

16 the first casualty of the ICC.’’. 

17 (17) The United States has entered into bilat18 eral agreements with over 100 countries pursuant to 

19 article 98 of the Rome Statute preventing the Inter20 national Criminal Court from proceeding against 

21 United States personnel present in those countries. 

22 (18) On August 2, 2002, the American 

23 Servicemembers’ Protection Act of 2002 was signed 

24 into law as title II of the 2002 Supplemental Appro25 priations Act for Further Recovery From and ReVerDate Mar 15 2010 00:01 May 22, 2010 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5351.IH H5351

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1 sponse To Terrorist Attacks on the United States 

2 (Public Law 107–206). 

3 (19) Among other things, the American 

4 Servicemembers’ Protection Act of 2002 prohibits 

5 United States cooperation with the International 

6 Criminal Court and specifies restrictions on— 

7 (A) participation by covered United States 

8 persons in United Nations (UN) peacekeeping 

9 and peace enforcement operations; and 

10 (B) transfer to the International Criminal 

11 Court of United States classified national secu12 rity and law enforcement information. 

13 (20) Secretary of State Hillary Rodham Clinton 

14 stated on August 6, 2009, that ‘‘[It] is a great re15 gret that we are not a signatory’’ of the Rome Stat16 ute of the International Criminal Court. 

17 (21) Ambassador Susan Rice, Permanent Rep18 resentative of the United States to the United Na19 tions, stated at a meeting of the United Nations Se20 curity Council on January 29, 2009, that the Inter21 national Criminal Court ‘‘looks to become an impor22 tant and credible instrument’’. She further stated on 

23 August 12, 2009, that ‘‘We have changed course. 

24 . . . We no longer oppose mentions of . . . the 

25 International Criminal Court’’. 


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1 (22) In November of 2009, the United States 

2 for the first time sent an observer delegation to the 

3 Assembly of States Parties of the International 

4 Criminal Court. 

5 (23) Stephen J. Rapp, Ambassador-at-Large 

6 for War Crimes Issues, has expressed the willingness 

7 of the United States to participate in the Review 

8 Conference of the Rome Statute of the International 

9 Criminal Court, which is scheduled to be held from 

10 May 31 to June 11, 2010, in Kampala, Uganda. 

11 (24) Ambassador Rapp has stated that the 

12 United States ‘‘will return to engagement at the 

13 ICC’’. 

14 (25) On December 1, 2009, the President an15 nounced his determination ‘‘that it is in our vital na16 tional interest to send an additional 30,000 United 

17 States troops to Afghanistan’’ in his ‘‘Address to the 

18 Nation on the Way Forward in Afghanistan and 

19 Pakistan’’, delivered at the United States Military 

20 Academy at West Point, New York. 

21 (26) During their testimony before the Com22 mittee on Foreign Affairs of the United States 

23 House of Representatives on December 10, 2009, 

24 General Karl W. Eikenberry (retired), United States 

25 Ambassador to Afghanistan, and General Stanley A. 


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1 McChrystal, Commander, International Security As2 sistance Force and Commander, United States 

3 Forces Afghanistan, were both asked, ‘‘Are you on 

4 record as saying that you are absolutely opposed, 

5 under any circumstances, to men and women in uni6 form being arrested anywhere in the world and tried 

7 before the ICC court as a result of their actions in 

8 either Iraq or Afghanistan?’’. They both responded 

9 in the affirmative. 

10 (27) The Prosecutor of the International Crimi11 nal Court, Luis Moreno-Ocampo, has reportedly 

12 stated that he considers all soldiers operating on the 

13 territory of Afghanistan—even those from nations 

14 who have not ratified the Rome Statute—to fall 

15 under the jurisdiction of the International Criminal 

16 Court, and that he is conducting a ‘‘preliminary in17 vestigation’’ into whether NATO troops, including 

18 American soldiers, have committed ‘‘war crimes’’. 

19 (28) Those seeking to prevent the democratic, 

20 Jewish State of Israel from defending itself from 

21 violent militant groups and their state sponsors have 

22 frequently attempted to use the International Crimi23 nal Court in furtherance of this objective. 

24 (29) From December 2008 to January of 2009, 

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1 tacks spanning eight years from Hamas and other 

2 violent militant groups in the Gaza Strip, Israel con3 ducted Operation Cast Lead in order to defend its 

4 citizens from such attacks. 

5 (30) The Prosecutor of the International Crimi6 nal Court, Luis Moreno-Ocampo, has reportedly 

7 stated that he is considering a request by the Pales8 tinian Authority to exercise jurisdiction over the 

9 West Bank and Gaza in order to investigate Israel’s 

10 defensive Operation Cast Lead. 

11 (31) On September 15, 2009, pursuant to a 

12 one-sided, anti-Israel mandate from the notoriously 

13 biased United Nations Human Rights Council, the 

14 ‘‘United Nations Fact Finding Mission on the Gaza 

15 Conflict’’ released its report (known as the 

16 ‘‘Goldstone Report’’), which— 

17 (A) repeatedly made sweeping and unsub18 stantiated determinations that the Israeli mili19 tary had deliberately attacked civilians during 

20 Operation Cast Lead; 

21 (B) in effect denied the State of Israel the 

22 right to self-defense; 

23 (C) never noted the fact that Israel had 

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1 ian targets in southern Israel by Hamas and 

2 other Foreign Terrorist Organizations operating 

3 from Gaza; 

4 (D) largely ignored the culpability of the 

5 Government of Iran and the Government of 

6 Syria, both of whom sponsor Hamas and other 

7 violent militant groups; and 

8 (E) recommended that the report be re9 ferred for further action to the Prosecutor of 

10 the International Criminal Court. 

11 (32) On November 3, 2009, the United States 

12 House of Representatives adopted House Resolution 

13 867, which ‘‘consider[ed] the’’ Report of the United 

14 Nations Fact Finding Mission on the Gaza Conflict 

15 ‘‘[the] Goldstone Report to be irredeemably biased 

16 and unworthy of further consideration or legitimacy’’ 

17 and ‘‘reaffirm[ed] its support for the democratic, 

18 Jewish State of Israel, for Israel’s security and right 

19 to self-defense, and, specifically, for Israel’s right to 

20 defend its citizens from violent militant groups and 

21 their state sponsors’’. 

22 (33) As a non-party to the Rome Statute, the 

23 United States is not bound by its terms, and does 

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1 national Criminal Court over United States nation2 als. 

3 SEC. 3. SENSE OF CONGRESS. 

4 It is the sense of Congress that— 

5 (1) the United States should not ratify the 

6 Rome Statute of the International Criminal Court; 

7 (2) the President should not submit for ratifica8 tion the Rome Statute of the International Criminal 

9 Court; 

10 (3) the President and the Secretary of State 

11 should not undertake further actions that could le12 gitimize the International Criminal Court; 

13 (4) the President and the Secretary of State 

14 should lead a high-level diplomatic effort to encour15 age additional countries to enter into agreements 

16 with the United States, pursuant to article 98 of the 

17 Rome Statute, preventing the International Criminal 

18 Court from proceeding against United States per19 sonnel present in such countries, and to strengthen 

20 existing article 98 agreements; 

21 (5) the President and the Secretary of State 

22 should lead a high-level diplomatic effort to defend 

23 the right to self-defense of the United States and 

24 other democracies, including the United States indis25 pensable ally Israel, against efforts such as the 


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1 Goldstone Report that seek to deny democracies that 

2 very right via entities like the International Criminal 

3 Court; and 

4 (6) the President and the Secretary of State 

5 should explore credible, alternative forums to combat 

6 impunity for war crimes and other atrocities, while 

7 respecting the sovereignty and right to self-defense 

8 of democracies with robust, autonomous, and effec9 tive judicial systems. 

10 SEC. 4. PROHIBITION ON USE OF FUNDS FOR PARTICIPA11 TION IN THE INTERNATIONAL CRIMINAL 

12 COURT. 

13 (a) IN GENERAL.—Notwithstanding any other provi14 sion of law, no funds made available to any department, 

15 agency, or entity of the United States Government or to 

16 any State or local government, including any court, may 

17 be used for United States participation in the Inter18 national Criminal Court or its attendant activities, includ19 ing any review conference or meeting of the Assembly of 

20 States Parties. 

21 (b) RULE OF CONSTRUCTION.—The prohibition 

22 under subsection (a) shall be construed to strengthen and 

23 supplement, not to weaken or supplant, the prohibitions 

24 stated in section 2004 of the American Servicemembers’ 

25 Protection Act of 2002 (title II of the 2002 Supplemental 


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1 Appropriations Act for Further Recovery From and Re2 sponse To Terrorist Attacks on the United States (Public 

3 Law 107–206)). 

4 SEC. 5. DEFINITIONS. 

5 In this Act: 

6 (1) INTERNATIONAL CRIMINAL COURT.—The 

7 term ‘‘International Criminal Court’’ means the 

8 court established by the Rome Statute. 

9 (2) ROME STATUTE.—The term ‘‘Rome Stat10 ute’’ means the Rome Statute of the International 

11 Criminal Court, adopted by the United Nations Dip12 lomatic Conference of Plenipotentiaries on the Es13 tablishment of an International Criminal Court on 

14 July 17, 1998. 

Æ 


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