I
107TH CONGRESS
1ST SESSION
H. R. 2699
To provide for the protection of the due process rights of United States
citizens (including United States servicemembers) before foreign tribu-
nals, including the International Criminal Court, for the prosecution
of war criminals, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
AUGUST 1, 2001
Mr. DELAHUNT (for himself, Mr. HOUGHTON, and Mr. LANTOS) introduced
the following bill; which was referred to the Committee on International
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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘American Citizens’
Protection and War Criminal Prosecution Act of 2001’’.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Since the Nuremberg and Tokyo Tribunals
were convened following World War II, the United
States has been the world’s leading proponent of
international justice. Today, the United States is
pursuing justice for the architects of genocide and
other gross crimes in Cambodia, East Timor, Rwan-
da, Sierra Leone, and the former Yugoslavia.
(2) Bringing the perpetrators of genocide, war
crimes, and crimes against humanity to justice is
consistent with United States national interests and
fundamental values.
(3) Such crimes cause massive humanitarian
tragedies, and refugee emergencies, that often sig-
nificantly affect United States national interests.
(4) The International Criminal Court will be a
permanent court designed to investigate and bring to
justice individuals who commit war crimes, crimes
against humanity, and genocide. The International
Criminal Court will be established under the Rome
Statute, a treaty adopted in Rome on July 17, 1998,
at a United Nations diplomatic conference.
(5) On December 31, 2000, the United States
signed the Rome Statute. As of June 28, 2001, 139
countries have signed the treaty and 36 countries
have ratified it. Every member of the European
Union and 18 of 19 members of the North Atlantic
Treaty Organization have signed the Rome Statute.
(6) United States servicemembers and United
States officials involved in national security affairs
deserve the full protection of the United States Gov-
ernment and should not be the subject of frivolous
or politically motivated prosecutions by the Inter-
national Criminal Court or any other foreign tri-
bunal.
(7) United States negotiators succeeded in en-
suring that the Rome Statute contains numerous
safeguards designed to protect United States citi-
zens, including due process rights that former State
Department Legal Adviser Monroe Leigh has called
‘‘more detailed and comprehensive’’ than those con-
tained in the United States Bill of Rights. The De-
partment of Justice has never objected to the Rome
Statute on constitutional grounds.
(8) Under the Rome Statute, the International
Criminal Court must defer to United States jurisdic-
tion in cases involving United States citizens or serv-
ice personnel. The International Criminal Court may
proceed in such cases only if it determines that the
United States has decided not to prosecute the per-
son concerned and that the decision resulted from
the unwillingness or inability of the United States
genuinely to prosecute the matter.
(9) Upon signing the Rome Statute, President
Clinton stated he did not intend to submit the Rome
Statute in its present form to the Senate for advice
and consent to ratification. The Bush Administra-
tion has also stated that it will not seek the Senate’s
advice and consent to ratification of the Rome Stat-
ute.
(10) Many issues important to United States
interests are still being negotiated by signatories to
the Rome Statute. Continued United States engage-
ment with the International Criminal Court can help
protect United States interests.
SEC. 3. DEFINITIONS.
In this Act:
(1) APPROPRIATE
CONGRESSIONAL
COMMIT-
TEES.—The term ‘‘appropriate congressional com-
mittees’’ means the Committee on Foreign Relations
of the Senate and the Committee on International
Relations of the House of Representatives.
(2) CLASSIFIED NATIONAL SECURITY INFORMA-
TION.—The term ‘‘classified national security infor-
mation’’ means information that is classified or clas-
elements of the International Criminal Court
regime;
(3) provide appropriate diplomatic and legal as-
sistance to United States citizens, especially United
States servicemembers and their dependents, who
face prosecution without full due process in any
forum, including, if applicable, before the Inter-
national Criminal Court; and
(4) undertake, in all diplomatic negotiations re-
lated to international legal matters, to ensure that
no United States citizen, especially United States
servicemembers and their dependents, will face frivo-
lous prosecutions or prosecutions without full due
process of law.
SEC. 5. POLICY OF JUDICIAL ASSISTANCE AND PROTEC-
TION FOR UNITED STATES CITIZENS AND
SERVICEMEMBERS; STUDY AND REPORT.
(a) PROHIBITION.—The United States shall not take
any action to extradite or otherwise make available any
United States citizen or United States servicemember to
the International Criminal Court—
(1) if the United States is exercising its right
under the Rome Statute to investigate or prosecute
the crime under title 18, United States Code, or
chapter 47 of title 10, United States Code (relating
to the Uniform Code of Military Justice); or
(2)(A) if, after any such investigation, no rea-
sonable basis has been found to proceed with a pros-
ecution of such person; or
(B) if, after prosecution for such crime, such
person has been acquitted.
(b) RIGHT
TO
INVESTIGATE
AND
PROSECUTE
UNDER UNITED STATES LAW.—If a United States citizen
or United States servicemember is accused of a crime
under the Rome Statute, the United States shall in all
cases fully exercise its right under the Rome Statute to
investigate and, if appropriate, to prosecute the crime
under title 18, United States Code, or chapter 47 of title
10, United States Code (relating to the Uniform Code of
Military Justice), unless the President determines that it
is not in the national interest to do so.
(c) STUDY AND REPORT.—
(1) STUDY.—The Attorney General, the Sec-
retary of Defense, and the Secretary of State shall
jointly conduct a study consisting of a review of the
crimes defined under the Rome Statute and consid-
eration of what amendments to title 18, United
States Code, and chapter 47 of title 10, United
States Code (relating to the Uniform Code of Mili-
tary Justice) may be necessary to ensure that the
United States can fully exercise its rights under
Part 2 of the Rome Statute.
(2) REPORT.—Not later than 180 days after
the date of enactment of this Act, the Attorney Gen-
eral, the Secretary of Defense, and the Secretary of
State shall jointly submit to the appropriate congres-
sional committees a report setting forth the findings
of the study conducted under paragraph (1), includ-
ing any recommendations for the enactment of legis-
lation making the amendments described in that
paragraph.
(d) PROTECTIONS FOR UNITED STATES DEFEND-
ANTS BEFORE THE INTERNATIONAL CRIMINAL COURT.—
If a case involving a United States citizen or United States
servicemember is found admissible by the International
Criminal Court (within the meaning of Article 17 of the
Rome Statute), then the President shall—
(1) use all appropriate diplomatic and legal re-
sources to ensure that such person receives due
process (including, in the case of a person entitled
to assistance under section 1037 of title 10, rep-
resentation and other assistance in the manner pro-
vided in that section); and
(2) provide for the defendant whatever excul-
patory evidence may be available.
SEC. 6. REPORTING REQUIREMENT.
(a) REQUIREMENT.—Not later than one year after
the date of enactment of this Act, the President shall sub-
mit 
a 
report 
to 
the 
appropriate 
congressional
committees—
(1) comparing the due process protections af-
forded under the Rome Statute to those due process
protections afforded United States servicemembers
and their dependents under Status of Forces Agree-
ments, temporary Status of Forces Agreements,
temporary Status of Mission Agreements and Let-
ters of Assist in effect between the United States
and foreign nations or international organizations as
of the date of the report; and
(2) comparing the due process protections af-
forded under the Rome Statute to those due process
protections afforded United States citizens under bi-
lateral extradition treaties to which the United
States is a party, or multilateral treaties to which
the United States is a party and which contain a
provision authorizing extradition.
(b) ELEMENTS OF THE REPORT.—The report re-
quired by subsection (a) shall describe, in particular, the
extent to which United States citizens or United States
servicemembers accused of crimes overseas currently are
provided—
(1) the right to a jury trial;
(2) the presumption of innocence;
(3) the privilege against compelled self-incrimi-
nation;
(4) the right to confront witnesses;
(5) the protection against double jeopardy;
(6) the freedom from unreasonable searches
and seizures;
(7) the right to be present at trial;
(8) the right to effective assistance of counsel;
and
(9) the exclusion of unlawfully obtained evi-
dence.
SEC. 7. POLICY OF ASSISTANCE FOR THE PROSECUTION OF
WAR CRIMINALS.
(a) SUPPORT AND ASSISTANCE AUTHORIZED.—Not-
withstanding any other law, while the United States is not
a party to the Rome Statute, the United States may pro-
vide support and assistance, as appropriate, on a case-by-
case basis to the International Criminal Court for the
prosecution of accused war criminals, particularly those
accused of crimes against United States servicemembers,
United States citizens, or citizens of countries friendly to,
or allied with, the United States when the President deter-
mines that doing so would serve important United States
interests.
(b) SUPPORT AND ASSISTANCE DEFINED.—In this
section, the term ‘‘support and assistance’’ includes finan-
cial support, compliance with extradition requests, provi-
sion of appropriate intelligence information, legal assist-
ance, and such other assistance that is ordinarily provided
under treaties and executive agreements for mutual legal
assistance.
SEC. 8. PROHIBITION ON DIRECT OR INDIRECT TRANSFER
OF CERTAIN CLASSIFIED NATIONAL SECU-
RITY INFORMATION TO THE INTERNATIONAL
CRIMINAL COURT.
(a) DIRECT TRANSFER.—Except as provided in sec-
tion 7, and not later than the date of entry into force of
the Rome Statute, the President shall ensure that appro-
priate procedures are in place to prevent the transfer of
classified national security information to the Inter-
national Criminal Court.
(b) INDIRECT TRANSFER.—Except as provided in
section 7, and not later than the date of entry into force
of the Rome Statute, the President shall ensure that ap-
propriate procedures are in place to prevent the transfer
of classified national security information relevant to mat-
ters under consideration by the International Criminal
Court to the United Nations and to the government of
any country that is a party to the International Criminal
Court unless the United Nations or that government, as
the case may be, has provided written assurances that
such information will not be made available to the Inter-
national Criminal Court.
SEC. 9. ALLIANCE COMMAND ARRANGEMENTS.
(a) REPORT
ON ALLIANCE COMMAND ARRANGE-
MENTS.—Not later than 6 months after the date of the
enactment of this Act, the President shall transmit to the
appropriate congressional committees a report with re-
spect to each military alliance to which the United States
is party—
(1) describing the degree to which members of
the Armed Forces of the United States may, in the
context of military operations undertaken by or pur-
suant to that alliance, be placed under the command
or operational control of foreign military officers
subject to the jurisdiction of the International Crimi-
nal Court because they are nationals of a party to
the International Criminal Court; and
(2) evaluating the degree to which members of
the Armed Forces of the United States engaged in
military operations undertaken by or pursuant to
that alliance may be exposed to greater risks as a
result of being placed under the command or oper-
ational control of foreign military officers subject to
the jurisdiction of the International Criminal Court.
(b) DESCRIPTION OF MEASURES TO ACHIEVE EN-
HANCED PROTECTION FOR MEMBERS OF THE ARMED
FORCES OF THE UNITED STATES.—Not later than one
year after the date of the enactment of this Act, the Presi-
dent shall transmit to the appropriate congressional com-
mittees a description of modifications to command and
operational control arrangements within military alliances
to which the United States is a party that could be made
in order to reduce any risks to members of the Armed
Forces of the United States identified pursuant to sub-
section (a)(2).
(c) SUBMISSION IN CLASSIFIED FORM.—The report
under subsection (a), and the description of measures
under subsection (b), or appropriate parts thereof, may
be submitted in classified form.
SEC. 10. CERTIFICATION PRIOR TO SUBMISSION OF ROME
STATUTE TO THE SENATE AS A TREATY.
Prior to submission of the Rome Statute to the Sen-
ate for its advice and consent to ratification, the President
should certify that the International Criminal Court has
established a demonstrated record of fair and impartial
prosecution of genocide, war crimes, and crimes against
humanity.
Æ