I
107TH CONGRESS
1ST SESSION
H. R. 1794
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
party.
IN THE HOUSE OF REPRESENTATIVES
MAY 10, 2001
Mr. DELAY (for himself, Mr. MURTHA, Mr. HYDE, Mr. GILMAN, and Mr.
SMITH of New Jersey) introduced the following bill; which was referred
to the Committee on International 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 party.
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
Servicemembers’ Protection Act of 2001’’.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) On July 17, 1998, the United Nations Dip-
lomatic Conference of Plenipotentiaries on the Es-
tablishment of an International Criminal Court,
meeting in Rome, Italy, adopted the ‘‘Rome Statute
of the International Criminal Court.’’ The vote on
whether to proceed with the Statute was 120 in
favor to 7 against, with 21 countries abstaining. The
United States voted against final adoption of the
Rome Statute.
(2) As of April 30, 2001, 139 countries had
signed the Rome Statute and 30 had ratified it. Pur-
suant to Article 126 of the Rome Statute, the Stat-
ute will enter into force on the first day of the
month after the 60th day following the date on
which the 60th country deposits an instrument rati-
fying the Statute.
(3) Since adoption of the Rome Statute, a Pre-
paratory Commission for the International Criminal
Court has met regularly to draft documents to im-
plement the Rome Statute, including Rules of Proce-
dure and Evidence, Elements of Crimes, and a defi-
nition of the Crime of Aggression.
(4) During testimony before the Congress fol-
lowing the adoption of the Rome Statute, the lead
United 
States 
negotiator, 
Ambassador 
David
Scheffer stated that the United States could not
sign the Rome Statute because certain critical nego-
tiating objectives of the United States had not been
achieved. As a result, he stated: ‘‘We are left with
consequences that do not serve the cause of inter-
national justice.’’
(5) Ambassador Scheffer went on to tell the
Congress that: ‘‘Multinational peacekeeping forces
operating in a country that has joined the treaty can
be exposed to the Court’s jurisdiction even if the
country of the individual peacekeeper has not joined
the treaty. Thus, the treaty purports to establish an
arrangement whereby United States armed forces
operating overseas could be conceivably prosecuted
by the international court even if the United States
has not agreed to be bound by the treaty. Not only
is this contrary to the most fundamental principles
of treaty law, it could inhibit the ability of the
United States to use its military to meet alliance ob-
ligations and participate in multinational operations,
including humanitarian interventions to save civilian
lives. Other contributors to peacekeeping operations
will be similarly exposed.’’.
(6) Notwithstanding these concerns, President
Clinton directed that the United States sign the
Rome Statute on December 31, 2000. In a state-
ment issued that day, he stated that in view of the
unremedied deficiencies of the Rome Statute, ‘‘I will
not, and do not recommend that my successor sub-
mit the Treaty to the Senate for advice and consent
until our fundamental concerns are satisfied’’.
(7) Any American prosecuted by the Inter-
national Criminal Court will, under the Rome Stat-
ute, be denied procedural protections to which all
Americans are entitled under the Bill of Rights to
the United States Constitution, such as the right to
trial by jury.
(8) Members of the Armed Forces of the
United States deserve the full protection of the
United States Constitution wherever they are sta-
tioned or deployed around the world to protect the
vital national interests of the United States. The
United States Government has an obligation to pro-
tect the members of its Armed Forces, to the max-
imum extent possible, against criminal prosecutions
carried out by United Nations officials under proce-
dures that deny them their constitutional rights.
(9) In addition to exposing members of the
Armed Forces of the United States to the risk of
international criminal prosecution, the Rome Statute
creates a risk that the President and other senior
elected and appointed officials of the United States
Government may be prosecuted by the International
Criminal Court. Particularly if the Preparatory
Commission agrees on a definition of the Crime of
Aggression over United States objections, senior
United States officials may be at risk of criminal
prosecution for national security decisions involving
such matters as responding to acts of terrorism, pre-
venting the proliferation of weapons of mass destruc-
tion, and deterring aggression. No less than mem-
bers of the Armed Forces of the United States, sen-
ior officials of the United States Government deserve
the full protection of the United States Constitution
with respect to official actions taken by them to pro-
tect the national interests of the United States.
SEC. 3. WAIVER AND TERMINATION OF PROHIBITIONS OF
THIS ACT.
(a) AUTHORITY TO INITIALLY WAIVE SECTIONS 5
AND 7.—The President is authorized to waive the prohibi-
tions and requirements of sections 5 and 7 for a single
period of one year. Such a waiver may be issued only if
the President at least 15 days in advance of exercising
such authority—
(1) notifies the appropriate congressional com-
mittees of the intention to exercise such authority;
and
(2) determines and reports to the appropriate
congressional committees that the International
Criminal Court has entered into a binding agree-
ment that—
(A) prohibits the International Criminal
Court from seeking to exercise jurisdiction over
the following persons with respect to actions
undertaken by them in an official capacity:
(i) covered United States persons;
(ii) covered allied persons; and
(iii) individuals who were covered
United States persons or covered allied
persons; and
(B) ensures that no person described in
subparagraph (A) will be arrested, detained,
prosecuted, or imprisoned by or on behalf of the
International Criminal Court.
(b) AUTHORITY TO EXTEND WAIVER OF SECTIONS
5 AND 7.—The President is authorized to waive the prohi-
bitions and requirements of sections 5 and 7 for successive
periods of one year each upon the expiration of a previous
waiver pursuant to subsection (a) or this subsection. Such
a waiver may be issued only if the President at least fif-
teen days in advance of exercising such authority—
(1) notifies the appropriate congressional com-
mittees of the intention to exercise such authority;
and
(2) determines and reports to the appropriate
congressional committees that the International
Criminal Court—
(A) remains party to, and has continued to
abide by, a binding agreement that—
(i) prohibits the International Crimi-
nal Court from seeking to exercise jurisdic-
tion over the following persons with respect
to actions undertaken by them in an offi-
cial capacity:
(I) covered United States per-
sons;
(II) covered allied persons; and
(III) individuals who were cov-
ered United States persons or covered
allied persons; and
(ii) ensures that no person described
in clause (i) will be arrested, detained,
prosecuted, or imprisoned by or on behalf
of the International Criminal Court; and
(B) has taken no steps to arrest, detain,
prosecute, or imprison any person described in
clause (i) of subparagraph (A).
(c) AUTHORITY TO WAIVE SECTIONS 4 AND 6 WITH
RESPECT TO AN INVESTIGATION OR PROSECUTION OF A
NAMED INDIVIDUAL.—The President is authorized to
waive the prohibitions and requirements of sections 4 and
6 to the degree they would prevent United States coopera-
tion with an investigation or prosecution of a named indi-
vidual by the International Criminal Court. Such a waiver
may be issued only if the President at least 15 days in
advance of exercising such authority—
(1) notifies the appropriate congressional com-
mittees of the intention to exercise such authority;
and
(2) determines and reports to the appropriate
congressional committees that—
(A) a waiver pursuant to subsection (a) or
(b) of the prohibitions and requirements of sec-
tions 5 and 7 is in effect;
(B) there is reason to believe that the
named individual committed the crime or
crimes that are the subject of the International
Criminal Court’s investigation or prosecution;
(C) it is in the national interest of the
United States for the International Criminal
Court’s investigation or prosecution of the
named individual to proceed; and
(D) in investigating events related to ac-
tions by the named individual, none of the fol-
lowing persons will be investigated, arrested,
detained, prosecuted, or imprisoned by or on
behalf of the International Criminal Court with
respect to actions undertaken by them in an of-
ficial capacity:
(i) Covered United States persons.
(ii) Covered allied persons.
(iii) Individuals who were covered
United States persons or covered allied
persons.
(d) TERMINATION OF WAIVER PURSUANT TO SUB-
SECTION (c).—Any waiver or waivers exercised pursuant
to subsection (c) of the prohibitions and requirements of
sections 4 and 6 shall terminate at any time that a waiver
pursuant to subsection (a) or (b) of the prohibitions and
requirements of sections 5 and 7 expires and is not ex-
tended pursuant to subsection (b).
(e) TERMINATION OF PROHIBITIONS OF THIS ACT.—
The prohibitions and requirements of sections 4, 5, 6, and
7 shall cease to apply, and the authority of section 8 shall
terminate, if the United States becomes a party to the
International Criminal Court pursuant to a treaty made
under article II, section 2, clause 2 of the Constitution
of the United States.
SEC. 4. PROHIBITION ON COOPERATION WITH THE INTER-
NATIONAL CRIMINAL COURT.
(a) 
CONSTRUCTION.—The 
provisions 
of 
this
section—
(1) apply only to cooperation with the Inter-
national Criminal Court and shall not be construed
to apply to cooperation with an ad hoc international
criminal tribunal established by the United Nations
Security Council before or after the date of the en-
actment of this Act to investigate and prosecute war
crimes committed in a specific country or during a
specific conflict; and
(2) shall not be construed to prohibit—
(A) any action permitted under section 8;
(B) any other action taken by members of
the Armed Forces of the United States outside
the territory of the United States while engaged
in military operations involving the threat or
use of force when necessary to protect such per-
sonnel from harm or to ensure the success of
such operations; or
(C) communication by the United States to
the International Criminal Court of its policy
with respect to a particular matter.
(b) PROHIBITION
ON RESPONDING
TO REQUESTS
FOR COOPERATION.—No agency or entity of the United
States Government or of any State or local government,
including any court, may cooperate with the International
Criminal Court in response to a request for cooperation
submitted by the International Criminal Court pursuant
to Part 9 of the Rome Statute.
(c) PROHIBITION ON SPECIFIC FORMS OF COOPERA-
TION
AND ASSISTANCE.—No agency or entity of the
United States Government or of any State or local govern-
ment, including any court, may provide financial support
or other cooperation, support, or assistance to the Inter-
national Criminal Court, including by undertaking any ac-
tion described in the following articles of the Rome Statute
with the purpose or intent of cooperating with, or other-
wise providing support or assistance to, the International
Criminal Court:
(1) Article 89 (relating to arrest, extradition,
and transit of suspects).
(2) Article 92 (relating to provisional arrest of
suspects).
(3) Article 93 (relating to seizure of property,
asset forfeiture, execution of searches and seizures,
service of warrants and other judicial process, taking
of evidence, and similar matters).
(d) RESTRICTION
ON ASSISTANCE PURSUANT
TO
MUTUAL LEGAL ASSISTANCE TREATIES.—The United
States shall exercise its rights to limit the use of assist-
ance provided under all treaties and executive agreements
for mutual legal assistance in criminal matters, multilat-
eral conventions with legal assistance provisions, and ex-
tradition treaties, to which the United States is a party,
and in connection with the execution or issuance of any
letter rogatory, to prevent the transfer to, or other use
by, the International Criminal Court of any assistance
provided by the United States under such treaties and let-
ters rogatory.
(e) PROHIBITION ON INVESTIGATIVE ACTIVITIES OF
AGENTS.—No agent of the International Criminal Court
may conduct, in the United States or any territory subject
to the jurisdiction of the United States, any investigative
activity relating to a preliminary inquiry, investigation,
prosecution, or other proceeding at the International
Criminal Court.
SEC. 5. RESTRICTION ON UNITED STATES PARTICIPATION
IN 
CERTAIN 
UNITED 
NATIONS 
PEACE-
KEEPING OPERATIONS.
(a) POLICY.—Effective beginning on the date on
which the Rome Statute enters into force pursuant to Ar-
ticle 126 of the Rome Statute, the President should use
the voice and vote of the United States in the United Na-
tions Security Council to ensure that each resolution of
the Security Council authorizing any peacekeeping oper-
ation under chapter VI of the charter of the United Na-
tions or peace enforcement operation under chapter VII
of the charter of the United Nations permanently exempts,
at a minimum, members of the Armed Forces of the
United States participating in such operation from crimi-
nal prosecution by the International Criminal Court for
actions undertaken by such personnel in connection with
the operation.
(b) RESTRICTION.—Members of the Armed Forces of
the United States may not participate in any peacekeeping
operation under chapter VI of the charter of the United
Nations or peace enforcement operation under chapter VII
of the charter of the United Nations, the creation of which
is authorized by the United Nations Security Council on
or after the date that the Rome Statute enters into effect
pursuant to Article 126 of the Rome Statute, unless the
President has submitted to the appropriate congressional
or that government, as the case may be, has provided writ-
ten assurances that such information will not be made
available to the International Criminal Court.
(c) CONSTRUCTION.—The provisions of this section
shall not be construed to prohibit any action permitted
under section 8.
SEC. 7. PROHIBITION OF UNITED STATES MILITARY ASSIST-
ANCE TO PARTIES TO THE INTERNATIONAL
CRIMINAL COURT.
(a) PROHIBITION OF MILITARY ASSISTANCE.—Sub-
ject to subsections (b) and (c), no United States military
assistance may be provided to the government of a country
that is a party to the International Criminal Court.
(b) WAIVER.—The President may waive the prohibi-
tion of subsection (a) with respect to a particular
country—
(1) for one or more periods not exceeding one
year each, if the President determines and reports to
the appropriate congressional committees that it is
vital to the national interest of the United States to
waive such prohibition; and
(2) permanently, if the President determines
and reports to the appropriate congressional com-
mittees that such country has entered into an agree-
ment with the United States pursuant to Article 98
of the Rome Statute preventing the International
Criminal Court from proceeding against United
States personnel present in such country.
(c) EXEMPTION.—The prohibition of subsection (a)
shall not apply to the government of—
(1) a NATO member country;
(2) a major non-NATO ally (including, inter
alia, Australia, Egypt, Israel, Japan, the Republic of
Korea, and New Zealand); or
(3) Taiwan.
SEC. 8. AUTHORITY TO FREE MEMBERS OF THE ARMED
FORCES OF THE UNITED STATES AND CER-
TAIN OTHER PERSONS HELD CAPTIVE BY OR
ON BEHALF OF THE INTERNATIONAL CRIMI-
NAL COURT.
(a) AUTHORITY.—The President is authorized to use
all means necessary and appropriate to bring about the
release from captivity of any person described in sub-
section (b) who is being detained or imprisoned against
that person’s will by or on behalf of the International
Criminal Court.
(b) PERSONS AUTHORIZED TO BE FREED.—The au-
thority of subsection (a) shall extend to the following per-
sons:
(1) Covered United States persons.
(2) Covered allied persons.
(3) Individuals detained or imprisoned for offi-
cial actions taken while the individual was a covered
United States person or a covered allied person, and
in the case of a covered allied person, upon the re-
quest of such government.
(c) AUTHORIZATION OF LEGAL ASSISTANCE.—When
any person described in subsection (b) is arrested, de-
tained, prosecuted, or imprisoned by or on behalf of the
International Criminal Court, the authority under sub-
section (a) may be used—
(1) for the provision of legal representation and
other legal assistance to that person (including, in
the case of a person entitled to assistance under sec-
tion 1037 of title 10, United States Code, represen-
tation and other assistance in the manner provided
in that section); and
(2) for the provision of exculpatory evidence on
behalf of that person.
(d) BRIBES AND OTHER INDUCEMENTS NOT AU-
THORIZED.—Subsection (a) does not authorize the pay-
ment of bribes or the provision of other incentives to in-
duce the release from captivity of a person described in
subsection (b).
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. WITHHOLDINGS.
Funds withheld from the United States share of as-
sessments to the United Nations or any other inter-
national organization during any fiscal year pursuant to
section 705 of the Admiral James W. Nance and Meg
Donovan Foreign Relations Authorization Act, Fiscal
Years 2000 and 2001 (as enacted by section 1000(a)(7)
of Public Law 106–113; 113 Stat. 1501A–460), are au-
thorized to be transferred to the Embassy Security, Con-
struction and Maintenance Account of the Department of
State.
SEC. 11. NONDELEGATION.
The authorities vested in the President by sections
3, 5(c), and 7(b) may not be delegated by the President
pursuant to section 301 of title 3, United States Code,
or any other provision of law.
SEC. 12. DEFINITIONS.
As used in this Act and in sections 705 and 706 of
the Admiral James W. Nance and Meg Donovan Foreign
Relations Authorization Act, Fiscal Years 2000 and 2001:
(1) APPROPRIATE
CONGRESSIONAL
COMMIT-
TEES.—The term ‘‘appropriate congressional com-
mittees’’ means the Committee on International Re-
lations of the House of Representatives and the
Committee on Foreign Relations of the Senate.
(2) CLASSIFIED NATIONAL SECURITY INFORMA-
TION.—The term ‘‘classified national security infor-
mation’’ means information that is classified or clas-
sifiable under Executive Order 12958 or a successor
Executive order.
(3) COVERED
ALLIED
PERSONS.—The term
‘‘covered allied persons’’ means military personnel,
elected or appointed officials, and other persons em-
ployed by or working on behalf of the government of
a NATO member country, a major non-NATO ally
(including, inter alia, Australia, Egypt, Israel,
Japan, the Republic of Korea, and New Zealand), or
Taiwan, for so long as that government is not a
party to the International Criminal Court and wish-