[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 857 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                 S. 857

   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

                              May 9, 2001

 Mr. Helms (for himself, Mr. Miller, Mr. Lott, Mr. Warner, Mr. Hatch, 
Mr. Shelby, and Mr. Murkowski) 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 2001''.

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 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. 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 on which 
        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 met 
        regularly to draft documents to implement the Rome Statute, 
        including Rules of Procedure and Evidence, Elements of Crimes, 
        and a definition of the Crime of Aggression.
            (4) During testimony before the Congress following 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 
        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) Notwithstanding these concerns, President Clinton 
        directed that the United States sign the Rome Statute on 
        December 31, 2000. In a statement 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 
        submit the Treaty to the Senate for advice and consent until 
        our fundamental concerns are satisfied''.
            (7) Any American prosecuted by the International Criminal 
        Court will, under the Rome Statute, 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 stationed or deployed around the world to 
        protect the vital national interests of the United States. The 
        United States Government has an obligation to protect the 
        members of its Armed Forces, to the maximum extent possible, 
        against criminal prosecutions carried out by United Nations 
        officials under procedures 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, 
        preventing the proliferation of weapons of mass destruction, 
        and deterring aggression. No less than members of the Armed 
        Forces of the United States, 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. WAIVER AND TERMINATION OF PROHIBITIONS OF THIS ACT.

    (a) Authority To Initially Waive Sections 5 and 7.--The President 
is authorized to waive the prohibitions 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 committees 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 agreement 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 prohibitions 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 fifteen days in 
advance of exercising such authority--
            (1) notifies the appropriate congressional committees 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 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
                            (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 cooperation with an 
investigation or prosecution of a named individual 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 committees 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 sections 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 actions by 
                the named individual, none of the following 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 official 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 Subsection (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 extended 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 INTERNATIONAL CRIMINAL 
              COURT.

    (a) Construction.--The provisions of this section--
            (1) 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; 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 personnel 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 Cooperation and Assistance.--
No agency or entity of the United States Government or of any State or 
local government, including any court, may provide financial support or 
other cooperation, support, or assistance to the International Criminal 
Court, including by undertaking 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 on which 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 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 permanently 
exempts, at a minimum, members of the Armed Forces of the United States 
participating in such operation from criminal 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 committees a certification described in 
subsection (c) with respect to such operation.
    (c) Certification.--The certification referred to in subsection (b) 
is a certification by the President that members of the Armed Forces of 
the United States are able to participate in the peacekeeping or peace 
enforcement operation without risk of criminal prosecution by the 
International Criminal Court because--
            (1) in authorizing the operation, the United Nations 
        Security Council permanently exempted, at a minimum, members of 
        the Armed Forces of the United States 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 members of the Armed Forces of 
        the United States participating in the operation will be 
        present is either not a party to the International Criminal 
        Court and has not invoked the jurisdiction of the International 
        Criminal Court pursuant to Article 12 of the Rome Statute, or 
        has entered into an agreement in accordance with Article 98 of 
        the Rome Statute preventing the International Criminal Court 
        from proceeding against members of the Armed Forces of the 
United States present in that country; or
            (3) the United States has taken other appropriate steps to 
        guarantee that members of the Armed Forces of the United States 
        participating in the 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.
    (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 ASSISTANCE TO PARTIES TO 
              THE INTERNATIONAL CRIMINAL COURT.

    (a) Prohibition of Military Assistance.--Subject 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 prohibition 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 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) 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 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) Covered United States persons.
            (2) Covered allied persons.
            (3) Individuals detained or imprisoned for official 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 request of such government.
    (c) Authorization of Legal Assistance.--When any person described 
in subsection (b) is arrested, detained, prosecuted, or imprisoned by 
or on behalf of the International Criminal Court, the authority under 
subsection (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 section 1037 of title 10, 
        United States Code, representation 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 Authorized.--Subsection (a) 
does not 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. 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. WITHHOLDINGS.

    Funds withheld from the United States share of assessments to the 
United Nations or any other international 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 authorized to be transferred to the Embassy Security, 
Construction 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 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) Covered allied persons.--The term ``covered allied 
        persons'' means military personnel, elected or appointed 
        officials, and other persons employed 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 wishes its officials and other persons working on its 
        behalf to be exempted from the jurisdiction of the 
        International Criminal Court.
            (4) Covered united states persons.--The term ``covered 
        United States persons'' means members of the Armed Forces of 
        the United States, elected or appointed officials of the United 
        States Government, and other persons employed by or working on 
        behalf of the United States Government, for so long as the 
        United States is not a party to the International Criminal 
        Court.
            (5) Extradition.--The terms ``extradition'' and 
        ``extradite'' include both ``extradition'' and ``surrender'' as 
        those terms are defined in article 102 of the Rome Statute.
            (6) International criminal court.--The term ``International 
        Criminal Court'' means the court established by the Rome 
        Statute.
            (7) 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.
            (8) 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.
            (9) 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 term 
        ``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'' means any military 
        operation to maintain or restore international peace and 
        security that--
                    (A) is authorized by the United Nations Security 
                Council under 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 or peace enforcement activities.
            (10) 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.
            (11) Support.--The term ``support'' means assistance of any 
        kind, including financial support, material support, services, 
        intelligence sharing, law enforcement cooperation, the training 
        or detail of personnel, and the arrest or detention of 
        individuals.
            (12) 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>