[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1296 Introduced in Senate (IS)]
107th CONGRESS
1st Session
S. 1296
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 1, 2001
Mr. Dodd introduced the following bill; which was read twice and
referred to the Committee on Foreign 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 Representatives 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, Rwanda, 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 significantly 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 Government and should not
be the subject of frivolous or politically motivated
prosecutions by the International Criminal Court or any other
foreign tribunal.
(7) United States negotiators succeeded in ensuring that
the Rome Statute contains numerous safeguards designed to
protect United States citizens, including due process rights
that former State Department Legal Adviser Monroe Leigh has
called ``more detailed and comprehensive'' than those contained
in the United States Bill of Rights. The Department 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 jurisdiction in cases
involving United States citizens or service personnel. The
International Criminal Court may proceed in such cases only if
it determines that the United States has decided not to
prosecute the person 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 Administration has also stated that it will not seek the
Senate's advice and consent to ratification of the Rome
Statute.
(10) Many issues important to United States interests are
still being negotiated by signatories to the Rome Statute.
Continued United States engagement with the International
Criminal Court can help protect United States interests.
SEC. 3. DEFINITIONS.
In this Act:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means the Committee on
Foreign Relations of the Senate and the Committee on
International Relations of the House of Representatives.
(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) International criminal court.--The term ``International
Criminal Court'' means the court established by the Rome
Statute.
(4) 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.
(5) 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.
(6) United states servicemember.--The term ``United States
servicemember'' means any person that is subject to the
provisions of chapter 47 of title 10, United States Code
(relating to the Uniform Code of Military Justice).
SEC. 4. STATEMENT OF POLICY.
It is the sense of Congress that the United States should--
(1) maintain a policy of fully supporting the due process
rights of all United States citizens before foreign tribunals,
including before the International Criminal Court;
(2) continue to participate in negotiations of the
Preparatory Commission of the International Criminal Court and
as an observer in the Assembly of States Parties in order to--
(A) ensure that the rules of procedure and evidence
and elements of crimes adopted by the International
Criminal Court conform to United States standards of
due process, are formally adopted by the Assembly, and
fairly applied by the International Criminal Court's
judges and prosecutors;
(B) seek a definition of the crime of aggression
under the Rome Statute that is consistent with
international law and fully respects the right of self-
defense of the United States and its allies; and
(C) ensure that United States interests are
protected in the negotiations over the remaining
elements of the International Criminal Court regime;
(3) provide appropriate diplomatic and legal assistance 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
International Criminal Court; and
(4) undertake, in all diplomatic negotiations related to
international legal matters, to ensure that no United States
citizen, especially United States servicemembers and their
dependents, will face frivolous prosecutions or prosecutions
without full due process of law.
SEC. 5. POLICY OF JUDICIAL ASSISTANCE AND PROTECTION 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 reasonable
basis has been found to proceed with a prosecution 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 Secretary 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 consideration of what amendments to title 18,
United States Code, and chapter 47 of title 10, United States
Code (relating to the Uniform Code of Military 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 General, the Secretary of
Defense, and the Secretary of State shall jointly submit to the
appropriate congressional committees a report setting forth the
findings of the study conducted under paragraph (1), including
any recommendations for the enactment of legislation making the
amendments described in that paragraph.
(d) Protections for United States Defendants 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 resources to
ensure that such person receives due process (including, in the
case of a person entitled to assistance under section 1037 of
title 10, representation and other assistance in the manner
provided in that section); and
(2) provide for the defendant whatever exculpatory 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 submit a report to the
appropriate congressional committees--
(1) comparing the due process protections afforded under
the Rome Statute to those due process protections afforded
United States servicemembers and their dependents under Status
of Forces Agreements, temporary Status of Forces Agreements,
temporary Status of Mission Agreements and Letters 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 afforded under
the Rome Statute to those due process protections afforded
United States citizens under bilateral 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 required 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-incrimination;
(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 evidence.
SEC. 7. POLICY OF ASSISTANCE FOR THE PROSECUTION OF WAR CRIMINALS.
(a) Support and Assistance Authorized.--Notwithstanding any other
law, while the United States is not a party to the Rome Statute, the
United States may provide 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 determines that doing so would serve important
United States interests.
(b) Support and Assistance Defined.--In this section, the term
``support and assistance'' includes financial support, compliance with
extradition requests, provision of appropriate intelligence
information, legal assistance, 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 SECURITY INFORMATION TO THE
INTERNATIONAL CRIMINAL COURT.
(a) Direct 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 appropriate procedures are in place to
prevent the transfer of classified national security information to the
International 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 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. 9. 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 members of the Armed
Forces of the United States 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 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
operational control of foreign military officers subject to the
jurisdiction of the International Criminal Court.
(b) Description of Measures To Achieve Enhanced 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 President shall
transmit to the appropriate congressional committees 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 subsection (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 Senate 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.
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