I
106TH CONGRESS
2D SESSION
H. R. 4654
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 HOUSE OF REPRESENTATIVES
JUNE 14, 2000
Mr. DELAY (for himself, Mr. ARMEY, Mr. WATTS of Oklahoma, Mr. BLUNT,
Mrs. FOWLER, Ms. PRYCE of Ohio, Mr. COX, Mr. DREIER, Mr. SPENCE,
Mr. GILMAN, Mr. GOSS, Mr. HYDE, Mr. STUMP, Mr. SMITH of New Jer-
sey, Mr. BARR of Georgia, and Mr. ADERHOLT) 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 a 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 2000’’.
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
adoption of 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 May 30, 2000, 96 countries had
signed the Rome Statute and 10 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 that the
60th country deposits an instrument ratifying the
Statute.
(3) Since adoption of the Rome Statute, a Pre-
paratory Commission for the International Criminal
Court has continued to meet regularly to draft docu-
ments to implement the Rome Statute, including
Rules of Procedure and Evidence, definitions of Ele-
ments of Crimes, and a definition of the Crime of
Aggression.
(4) During testimony before the Congress, 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) Any Americans prosecuted by the Inter-
national Criminal Court will, under the Rome Stat-
ute, be denied many of the procedural protections to
which all Americans are entitled under the Bill of
Rights to the United States Constitution, including,
among others, the right to trial by jury, the right
not to be compelled to provide self-incriminating tes-
timony, and the right to confront and cross-examine
all witnesses for the prosecution.
(7) American servicemen and women deserve
the full protection of the United States Constitution
when they are deployed around the world to protect
the vital national interests of the United States. The
United States Government has an obligation to pro-
tect American servicemen and women, to the max-
imum extent possible, against criminal prosecutions
carried out by United Nations officials under proce-
dures that deny them their constitutional rights.
(8) In addition to exposing American service-
men and women 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. Par-
ticularly if the Preparatory Commission agrees on a
definition of the Crime of Aggression, senior United
States officials may be at risk of criminal prosecu-
tion 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 Amer-
ican servicemen and women, senior officials of the
United States Government deserve the full protec-
tion of the United States Constitution with respect
to official actions taken by them to protect the na-
tional interests of the United States.
SEC. 3. 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 Constitu-
tion of the United States.
SEC. 4. PROHIBITION ON COOPERATION WITH THE INTER-
NATIONAL CRIMINAL COURT.
(a) CONSTRUCTION.—The provisions of this section
apply only to cooperation with the International 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 enactment of this Act to investigate and pros-
ecute war crimes committed in a specific country or during
a specific conflict.
(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.—No agency or entity of the United States Govern-
ment or of any State or local government, including any
court, may undertake any action described in the following
articles of the Rome Statute with the purpose or intent
of cooperating with, or otherwise providing support or as-
sistance 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 that
the Rome Statute enters into force pursuant to Article 126
of the Rome Statute, the President should use the voice
prevent the transfer of classified national security infor-
mation to the International Criminal Court.
(b) INDIRECT TRANSFER.—Not later than the date
on which the Rome Statute enters into force, the President
shall ensure that appropriate procedures are in place to
prevent the transfer of classified national security infor-
mation relevant to matters 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 writ-
ten assurances that such information will not be made
available to the International Criminal Court.
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), (c), and (d), no United States mili-
tary 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
if the President determines and reports to the appropriate
congressional committees that such country has entered
into an agreement with the United States pursuant to Ar-
ticle 98 of the Rome Statute preventing the International
Criminal Court from proceeding against United States
personnel present in such country.
(c) SPECIAL AUTHORITIES.—The prohibition of sub-
section (a) shall be subject to the special authorities of
section 614 of the Foreign Assistance Act of 1961 and
the applicable conditions and limitations under such sec-
tion.
(d) EXEMPTION.—The prohibition of subsection (a)
shall not apply to the government of any country that is—
(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 UNITED STATES MILITARY
PERSONNEL AND CERTAIN OTHER PERSONS
HELD CAPTIVE BY OR ON BEHALF OF THE
INTERNATIONAL CRIMINAL 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) United States military personnel, elected or
appointed officials of the United States Government,
and other persons employed by or working on behalf
of the United States Government.
(2) Military personnel, elected or appointed offi-
cials, and other persons employed by or working on
behalf of the government of a NATO member coun-
try or major non-NATO ally (including, inter alia,
Australia, Egypt, Israel, Japan, the Republic of
Korea, and New Zealand), or Taiwan, if that coun-
try or ally is not a party to the International Crimi-
nal Court, upon the request of such government.
(3) Individuals detained or imprisoned for offi-
cial actions taken while the individual was a person
described in paragraph (1) or (2), and in the case
of such individuals described in paragraph (2), upon
the request of such government.
(c) CONSTRUCTION.—Subsection (a) shall not be con-
strued to authorize the payment of bribes or the provision
of other incentives to induce the release from captivity of
a person described in subsection (b).
SEC. 9. STATUS OF FORCES AGREEMENTS.
(a) REPORT ON STATUS OF FORCES AGREEMENTS.—
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 evaluating the degree
to which each existing status of forces agreement with a
foreign government, or other similar international agree-
ment, protects United States military and other personnel
from extradition to the International Criminal Court
under Article 98 of the Rome Statute.
(b) PLAN FOR ACHIEVING ENHANCED PROTECTION
OF UNITED STATES MILITARY PERSONNEL.—Not later
than 1 year after the date of the enactment of this Act,
the President shall transmit to the appropriate congres-
sional committees a plan for amending existing status of
forces agreements, or negotiating new international agree-
ments, in order to achieve the maximum protection avail-
able under Article 98 of the Rome Statute for United
States military and other personnel in those countries
where maximum protection under article 98 has not al-
ready been achieved.
(c) SUBMISSION IN CLASSIFIED FORM.—The report
under subsection (a), and the plan under subsection (b),
or appropriate parts thereof, may be submitted in classi-
fied form.
SEC. 10. 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 United
States military personnel may, in the context of mili-
tary operations undertaken by or pursuant to that
alliance, be placed under the command or oper-
ational control of foreign military officers subject to
the jurisdiction of the international criminal court
because they are nationals of a party to the inter-
national criminal court, and
(2) evaluating the degree to which United
States military personnel engaged in military oper-
ations undertaken by or pursuant to that alliance
may be exposed to greater risks as a result of being
placed under the command or operational control of
foreign military officers subject to the jurisdiction of
the international criminal court.
(b) PLAN FOR ACHIEVING ENHANCED PROTECTION
OF UNITED STATES MILITARY PERSONNEL.—Not later
than one year after the date of the enactment of this Act,
the President shall transmit to the appropriate congres-
sional committees a plan for modifying command and
operational control arrangements within military alliances
to which the United States is a party to reduce any risks
to United States military personnel identified pursuant to
subsection (a)(2).
(c) SUBMISSION IN CLASSIFIED FORM.—The report
under subsection (a), and the plan under subsection (b),
or appropriate parts thereof, may be submitted in classi-
fied form.
SEC. 11. WITHHOLDINGS.
Funds withheld from the United States share of as-
sessments to the United Nations or any other inter-
national organization pursuant to section 705 of the Ad-
miral James W. Nance and Meg Donovan Foreign Rela-
tions Authorization Act, Fiscal Years 2000 and 2001 (as
enacted by section 1000(a)(7) of Public Law 106–113;
113 Stat. 1501A–460), are authorized to be transferred
to the Embassy Security, Construction and Maintenance
Account of the Department of State.
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,
the following terms have the following meanings:
(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) EXTRADITION.—The terms ‘‘extradition’’
and ‘‘extradite’’ include both ‘‘extradition’’ and ‘‘sur-
render’’ as those terms are defined in article 102 of
the Rome Statute.
(4) INTERNATIONAL
CRIMINAL
COURT.—The
term ‘‘International Criminal Court’’ means the
court established by the Rome Statute.
(5) MAJOR NON-NATO ALLY.—The term ‘‘major
non-NATO ally’’ means a country that has been so
designated in accordance with section 517 of the
Foreign Assistance Act of 1961.
(6) PARTY TO THE INTERNATIONAL CRIMINAL
COURT.—The term ‘‘party to the International
Criminal Court’’ means a government that has de-
posited an instrument of ratification, acceptance, ap-
proval, or accession to the Rome Statute, and has
not withdrawn from the Rome Statute pursuant to
Article 127 thereof.
(7) PEACEKEEPING
OPERATION
AUTHORIZED
BY THE UNITED NATIONS SECURITY COUNCIL PUR-
SUANT TO CHAPTER VI OF VII OF THE CHARTER OF
THE
UNITED
NATIONS.—The term ‘‘peacekeeping
operation authorized by the United Nations Security
Council pursuant to chapter VI of VII of the charter
of the United Nations’’ means any military oper-
ation to maintain or restore international peace and
security that—
(A) is authorized by the United Nations
Security Council pursuant to chapter VI of VII
of the charter of the United Nations, and
(B) is paid for from assessed contributions
of United Nations members that are made
available for peacekeeping activities.
(8) ROME STATUTE.—The term ‘‘Rome Stat-
ute’’ means the Rome Statute of the International
Criminal Court, adopted by the United Nations Dip-
lomatic Conference of Plenipotentiaries on the Es-
tablishment of an International Criminal Court on
July 17, 1998.
(9) SUPPORT.—The term ‘‘support’’ means as-
sistance of any kind, including material support,
services, intelligence sharing, law enforcement co-
operation, the training or detail of personnel, and
the arrest or detention of individuals.
(10) UNITED STATES MILITARY ASSISTANCE.—
The term ‘‘United States military assistance’’
means—
(A) assistance provided under chapters 2
through 6 of part II of the Foreign Assistance
Act of 1961 (22 U.S.C. 2311 et seq.);
(B) defense articles or defense services fur-
nished with the financial assistance of the
United States Government, including through
loans and guarantees; or
(C) military training or education activities
provided by any agency or entity of the United
States Government.
Such term does not include activities reportable
under title V of the National Security Act of 1947
(50 U.S.C. 413 et seq.).
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