[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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