[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2726 Introduced in Senate (IS)]







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.

    Be it enacted by the Senate and House of Representatives 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 Diplomatic 
        Conference of Plenipotentiaries on the Establishment 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. Pursuant to article 126 of the 
        Rome Statute, the Statute 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 Preparatory 
        Commission for the International Criminal Court has continued 
        to meet regularly to draft documents to implement the Rome 
        Statute, including Rules of Procedure and Evidence, definitions 
        of Elements 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 negotiating 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 international 
        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 obligations 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 International Criminal 
        Court will, under the Rome Statute, 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 testimony, 
        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 protect American servicemen and women, to 
        the maximum extent possible, against criminal prosecutions 
        carried out by United Nations officials under procedures that 
        deny them their constitutional rights.
            (8) In addition to exposing American servicemen 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. 
        Particularly if the Preparatory Commission agrees on a 
        definition of the Crime of Aggression, senior United States 
        officials may be at risk of criminal prosecution for national 
        security decisions involving such matters as responding to acts 
        of terrorism, preventing the proliferation of weapons of mass 
        destruction, and deterring aggression. No less than American 
        servicemen and women, senior officials of the United States 
        Government deserve the full protection of the United States 
        Constitution with respect to official actions taken by them to 
        protect the national 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 
Constitution of the United States.

SEC. 4. PROHIBITION ON COOPERATION WITH THE INTERNATIONAL 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 
prosecute 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 Cooperation.--No agency or 
entity of the United States Government 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 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 assistance provided under all treaties and executive agreements for 
mutual legal assistance in criminal matters, multilateral conventions 
with legal assistance provisions, and extradition 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 letters 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 PEACEKEEPING 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 and vote of the United States in the 
United Nations Security Council to ensure that each resolution of the 
Security Council authorizing a peacekeeping operation pursuant to 
chapter VI or VII of the charter of the United Nations permanently 
exempts United States military personnel participating in such 
peacekeeping operation from criminal prosecution by the International 
Criminal Court for actions undertaken by such personnel in connection 
with the operation.
    (b) Restriction.--United States military personnel may not 
participate in a peacekeeping operation authorized by the United 
Nations Security Council pursuant to chapter VI or VII of the charter 
of the United Nations 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 committees a 
certification described in subsection (c) with respect to such 
peacekeeping operation.
    (c) Certification.--The certification referred to in subsection (b) 
is a certification by the President that United States military 
personnel are able to participate in a peacekeeping operation without 
risk of criminal prosecution by the International Criminal Court 
because--
            (1) in authorizing the peacekeeping operation, the United 
        Nations Security Council permanently exempted United States 
        military personnel participating in the operation from criminal 
        prosecution by the International Criminal Court for actions 
        undertaken by them in connection with the operation;
            (2) each country in which United States military personnel 
        participating in the peacekeeping operation will be present is 
        either not a party to the International Criminal Court or has 
        entered into an agreement in accordance with Article 98 of the 
        Rome Statute preventing the International Criminal Court from 
        proceeding against United States personnel present in that 
        country; or
            (3) the President has taken other appropriate steps to 
        guarantee that United States military personnel participating 
        in the peacekeeping operation will not be prosecuted by the 
        International Criminal Court for actions undertaken by such 
        personnel in connection with the operation.

SEC. 6. PROHIBITION ON DIRECT OR INDIRECT TRANSFER OF CERTAIN 
              CLASSIFIED NATIONAL SECURITY INFORMATION TO THE 
              INTERNATIONAL CRIMINAL COURT.

    (a) Direct 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 information 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 information 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 written assurances that such information will not be made 
available to the International Criminal Court.

SEC. 7. PROHIBITION OF UNITED STATES MILITARY ASSISTANCE TO PARTIES TO 
              THE INTERNATIONAL CRIMINAL COURT.

    (a) Prohibition of Military Assistance.--Subject to subsections 
(b), (c), and (d), 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 prohibition 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 Article 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 subsection (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 section.
    (d) Exemption.--The prohibition of subsection (a) shall not apply 
to the government of any country that is--
            (1) a NATO member country, or
            (2) a major non-NATO ally (including, inter alia, 
        Australia, Egypt, Israel, Japan, the Republic of Korea, and New 
        Zealand).

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 subsection (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 authority of subsection 
(a) shall extend to the following persons:
            (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 officials, and 
        other persons employed by or working on behalf of the 
        government of a NATO member country or major non-NATO ally 
        (including, inter alia, Australia, Egypt, Israel, Japan, the 
        Republic of Korea, and New Zealand) that is not a party to the 
        International Criminal Court, upon the request of such 
        government.
            (3) Individuals detained or imprisoned for official 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 construed 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 agreement, 
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 
congressional committees a plan for amending existing status of forces 
agreements, or negotiating new international agreements, in order to 
achieve the maximum protection available 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 already 
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 classified form.

SEC. 10. ALLIANCE COMMAND ARRANGEMENTS.

    (a) Report on Alliance Command Arrangements.--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 
respect 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 military operations undertaken 
        by or pursuant to that alliance, be placed under the command or 
        operational control of foreign military officers subject to the 
        jurisdiction of the international criminal court because they 
        are nationals of a party to the international criminal court, 
        and
            (2) evaluating the degree to which United States military 
        personnel 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 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 
congressional 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 classified form.

SEC. 11. WITHHOLDINGS.

    Funds withheld from the United States share of assessments to the 
United Nations or any other international organization 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 
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 committees.--The term 
        ``appropriate congressional committees'' means the Committee on 
        International Relations of the House of Representatives and the 
        Committee on Foreign Relations of the Senate.
            (2) Classified national security information.--The term 
        ``classified national security information'' means information 
        that is classified or classifiable under Executive Order 12958 
        or a successor executive order.
            (3) Extradition.--The terms ``extradition'' and 
        ``extradite'' include both ``extradition'' and ``surrender'' 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 deposited an instrument of ratification, 
        acceptance, approval, 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 pursuant 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 operation to maintain or restore international 
        peace and security that--
                    (A) is authorized by the United Nations Security 
                Council pursuant to chapter VI or 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 Statute'' means the Rome 
        Statute of the International Criminal Court, adopted by the 
        United Nations Diplomatic Conference of Plenipotentiaries on 
        the Establishment of an International Criminal Court on July 
        17, 1998.
            (9) Support.--The term ``support'' means assistance of any 
        kind, including material support, services, intelligence 
        sharing, law enforcement cooperation, 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 furnished 
                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.).
                                 <all>