[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2050 Introduced in House (IH)]

  1st Session
                                H. R. 2050

  To prohibit cooperation with or assistance to any investigation or 
          prosecution under a universal jurisdiction statute.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 9, 2003

  Mr. Ackerman (for himself and Mr. Wexler) introduced the following 
  bill; which was referred to the Committee on International Relations

_______________________________________________________________________

                                 A BILL


 
  To prohibit cooperation with or assistance to any investigation or 
          prosecution under a universal jurisdiction statute.

    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 ``Universal Jurisdiction Rejection Act 
of 2003''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) On July 16, 1993, the parliament of Belgium adopted a 
        statute, the ``Anti-Atrocity Law,'' covering grave breaches of 
        the 1949 Geneva Conventions and the Additional Protocols I and 
        II of 1977 to those Conventions. Under the 1993 law, Belgian 
        courts claim to have jurisdiction over violations of 
        humanitarian law under the Geneva Conventions and Additional 
        Protocols, regardless of the ``character'' of the conflict, the 
        location of the alleged acts, or the nationality of the victim 
        or alleged perpetrator.
            (2) In 1999, Belgium's ``Anti-Atrocity Law'' was amended to 
        include genocide and crimes against humanity to international 
        crimes over which Belgian courts can exercise universal 
        jurisdiction. The 1999 amendments adopted the definition of 
        crimes against humanity used in the Rome Statute of the 
        International Criminal Court, which includes acts such as 
        murder when committed as part of a widespread or systematic 
        attack against civilians.
            (3) On June 18, 2001, 23 Lebanese-Palestinian nationals 
        brought a petition to Belgium's Attorney General filing a 
        criminal complaint under Belgium's ``Anti-Atrocity Law'' 
        against Israeli Prime Minister Ariel Sharon, former Director-
        General of the Israeli Ministry of Defense Amos Yaron, and 
        ``all other persons whether Lebanese or Israeli whose 
        responsibility will be established during the course of the 
        investigation,'' alleging their complicity with the Phalangist 
        massacres of Palestinians in the Sabra and Shatila refugee 
        camps in Lebanon in 1982.
            (4) The suit against Prime Minister Sharon--
                    (A) is politically motivated--
                            (i) since the events concerned took place 
                        in 1982, the Belgian ``Anti-Atrocity Law'' was 
                        passed in 1993 and amended in 1999, and the 
                        proceedings were only commenced in 2001 after 
                        Ariel Sharon became Prime Minister of Israel; 
                        and
                            (ii) since the issue of the Sabra and 
                        Shatila massacres was already examined by the 
                        Kahan Commission, established by the Government 
                        of Israel on September 28, 1982, under section 
                        4 of Israel's Commissions of Inquiry Law of 
                        1968;
                    (B) is an assault on the internationally accepted 
                concept of state sovereignty since neither the 
                plaintiffs nor the defendants have any connection to 
                Belgium whatsoever, and there is no claim that any 
                crime has been committed on Belgian soil or against 
                Belgian nationals; and
                    (C) is an assault on the internationally recognized 
                legal principle regarding the inadmissibility of 
                prosecution under ex post facto legislation.
            (5) On September 5, 2001, the Belgian Investigating 
        Magistrate decided that he had no jurisdiction to investigate 
        the suit.
            (6) On June 26, 2002, the Belgian Court of Appeals ruled 
        the complaint against Prime Minister Sharon, et al., was ``not 
        admissible because of the principle of Belgian law that crimes 
        committed in other countries cannot be prosecuted in Belgium 
        unless the author or presumed author has been found in 
        Belgium''.
            (7) In January 2003, the Belgian Chief Prosecutor for the 
        Appellate Court (Chamber of Indictments), in the legal opinion 
        he gave to the Supreme Court justices, unambiguously pointed 
        out that the general principle governing universal 
        jurisdiction--``extradite or prosecute''--implies that the 
        defendant must be present in the territory of a prosecuting 
        state and cited the Geneva Conventions, which also require the 
        presence of the defendant. The Belgian Chief Prosecutor for the 
        Appellate Court argued further that conducting such proceedings 
        in absentia would be prejudicial to the rights of the defense, 
        and even warned against rendering the Belgian legal system a 
        ``virtual'' forum for frivolous prosecutions if complainants 
        were not required to prove a link to Belgium. The Belgian Chief 
        Prosecutor for the Appellate Court further recommended to the 
        Supreme Court that it should reject the suit.
            (8) On February 12, 2003, the Belgian Supreme Court (Cour 
        de Cassation) reversed the Belgian Court of Appeals and decided 
        that Belgium indeed has jurisdiction to hear the case against 
        Prime Minister Sharon et al., even in the absence of any link 
        to Belgium. With regard to Prime Minister Sharon, the Belgian 
        Supreme Court decided that further proceedings against him 
        should be postponed, since he presently enjoys immunity due to 
        his position as Prime Minister, but that proceedings may 
        continue against him when he is no longer in office. With 
        regard to former Director-General of the Israeli Ministry of 
        Defense Amos Yaron and any other defendants, the Belgian 
        Supreme Court held that proceedings against them can continue 
        as normal.
            (9) On March 18, 2003, seven Iraqi families, together with 
        a nongovernmental organization that opposes current United 
        States policy toward Iraq, filed suit in the Belgian courts 
        under Belgium's ``Anti-Atrocity Law'' against President George 
        H.W. Bush, Vice-President Richard B. Cheney, Secretary of State 
        Colin L. Powell, and General H. Norman Schwarzkopf (U.S. Army-
        Ret.), alleging their responsibility for war crimes during the 
        1991 Persian Gulf War.
            (10) On April 2, 2003, the Chamber of Representatives of 
        Belgium, by a vote of 63-48, amended and circumscribed 
        Belgium's ``Anti-Atrocity Law'' to require a nexus between 
        Belgium and the alleged warcrime or atrocity.
            (11) On April 4, 2003, the Senate of Belgium failed to 
        adopt the amendments adopted by the Belgian Chamber of 
        Representatives on April 2, 2003.
            (12) On April 5, 2003, the Senate of Belgium approved the 
        amendments adopted by the Belgian Chamber of Representatives on 
        April 2, 2003. As amended, the Belgian ``Anti-Atrocity Law'' 
        allows the Belgian Minister of Justice, in cases in which the 
        alleged victim is not Belgian and the accused's home state 
        upholds the right of a fair trial, to intervene and refer the 
        complaint to that state. Further, the amended law provides that 
        before a victim can file a case directly in the future, there 
        must be some link with Belgium, whether because the suspect is 
        on Belgian soil, because the alleged crimes took place in 
        Belgium, or because the victim is Belgian or has lived in 
        Belgium for at least three years.
            (13) A growing number of countries have adopted universal 
        jurisdiction acts which authorize the national judicial or 
        prosecutorial authorities of a country to investigate, 
        prosecute, and punish genocide, war crimes, acts of torture, 
        violations of human rights, or crimes against humanity not 
        involving any of the nationals or property of that country, or 
        that did not occur on the territory of that country or 
        territory under its control.
            (14) Implicit within the very concept of universal 
        jurisdiction is a threat to the sovereignty of the United 
        States. There now exists the possibility that foreign courts 
        claiming universal jurisdiction could entertain suits brought 
        by third-country nationals against members of the Armed Forces 
        of the United States and the President and other senior elected 
        and appointed officials of the United States Government. 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. POLICY OF THE UNITED STATES CONCERNING CLAIMS OF UNIVERSAL 
              JURISDICTION.

    It is the policy of the United States to reject any claim of 
universal jurisdiction made by foreign governments and to refuse to 
render any assistance or support to any foreign government pursuing an 
investigation or prosecution under a universal jurisdiction act.

SEC. 4. PROHIBITION ON COOPERATION WITH ANY INVESTIGATION OR 
              PROSECUTION UNDER A UNIVERSAL JURISDICTION ACT.

    (a) Construction.--The provisions of this section--
            (1) apply only to cooperation with investigations and 
        prosecutions under a universal jurisdiction act 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 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 6;
                    (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 a foreign 
                government of its policy with respect to a particular 
                matter concerning a universal jurisdiction act.
    (b) 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 cooperate with, provide 
support (including financial support) for, or provide any other kind of 
assistance to any investigation or prosecution by a foreign government 
under a universal jurisdiction act, including by--
            (1) taking any action relating to--
                    (A) the arrest, extradition, or transit of 
                suspects, or the provisional arrest of suspects; or
                    (B) the seizure of property, forfeiture of assets, 
                execution of searches and seizures, service of 
                warrants, or other judicial process;
            (2) the taking, preservation, or transfer of any evidence 
        or testimony; or
            (3) the analysis, sharing, or transfer of relevant 
        information or intelligence.
    (d) Restriction on Assistance Pursuant to Mutual Legal Assistance 
Treaties.--The United States shall exercise its rights--
            (1) under any treaty or executive agreement providing for 
        mutual legal assistance in criminal matters,
            (2) under any multilateral convention with legal assistance 
        provisions,
            (3) under any extradition treaty to which the United States 
        is a party, or
            (4) in connection with the execution or issuance of any 
        letter rogatory,
to prevent the use of any assistance provided by the United States 
under such treaty, agreements, conventions, or letter rogatory in any 
investigation or prosecution under a universal jurisdiction act.
    (d) Prohibition on Investigative Activities of Agents.--No agent of 
a foreign principal pursuing any investigation or prosecution under a 
universal jurisdiction act may conduct, in the United States or any 
territory subject to the jurisdiction of the United States, any 
activity with respect to such investigation or prosecution that relates 
to a preliminary inquiry, investigation, prosecution, or other 
proceeding.

SEC. 5. PROHIBITION ON DIRECT OR INDIRECT TRANSFER OF CERTAIN 
              CLASSIFIED NATIONAL SECURITY INFORMATION.

    (a) Direct Transfer.--The President shall ensure that appropriate 
procedures are implemented to prevent the transfer to foreign judicial 
or prosecutorial authorities of classified national security 
information that is relevant to any investigation or prosecution under 
a universal jurisdiction act.
    (b) Indirect Transfer.--The President shall ensure that appropriate 
procedures are implemented to prevent the transfer, to the government 
of any country that is cooperating with an investigation or prosecution 
under a universal jurisdiction act, of classified national security 
information that is relevant to matters under such investigation or 
prosecution by foreign judicial or prosecutorial authorities, unless 
that government has provided written assurances to the President that 
such information will not be made available for any use in such 
investigation or prosecution.
    (c) Construction.--The provisions of this section shall not be 
construed to prohibit any action permitted under section 6.

SEC. 6. AUTHORITY TO FREE MEMBERS OF THE ARMED FORCES OF THE UNITED 
              STATES AND CERTAIN OTHER PERSONS HELD CAPTIVE FOR 
              INVESTIGATION OR PROSECUTION UNDER A UNIVERSAL 
              JURISDICTION ACT.

    (a) Authority.--The President may 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 reason of any investigation or prosecution under 
a universal jurisdiction act with respect to actions undertaken by that 
person in an official capacity as a covered United States person or 
covered allied person, as the case may be.
    (b) Persons Authorized To Be Freed.--The authority of subsection 
(a) applies with respect to the following persons:
            (1) Any covered United States person.
            (2) Any covered allied person, if the government of the 
        country by reason of which the individual is a covered allied 
        person requests that the authority under subsection (a) be 
        exercised.
            (3) Any individual detained or imprisoned for official 
        actions taken while the individual was--
                    (A) a covered United States person; or
                    (B) a covered allied person, if the government of 
                the country by reason of which the individual is a 
                covered allied person requests that the authority under 
                subsection (a) be exercised.
    (c) Authorization of Legal Assistance.--When any person described 
in subsection (b) is arrested, detained, prosecuted, or imprisoned by 
reason of any investigation or prosecution under a universal 
jurisdiction act, 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 provision of financial incentives to secure the 
release from captivity of a person described in subsection (b).

SEC. 7. 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 a universal jurisdiction act 
        because they are nationals of a country that has adopted a 
        universal jurisdiction act; and
            (2) describing 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 of investigation or prosecution under a universal 
        jurisdiction act as a result of being placed under the command 
        or operational control of foreign military officers subject to 
        the jurisdiction of a universal jurisdiction act.
    (b) Description of Measures To Achieve Enhanced Protection for 
Members of the Armed Forces of the United States.--Not later than 1 
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 under 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. 8. WAIVER AND TERMINATION OF PROHIBITIONS OF THIS ACT.

    (a) Authority To Initially Waive Sections 4 and 5.--The President 
may waive the prohibitions and requirements of sections 4 and 5 with 
respect to any country if the President, at least 15 days before 
exercising such waiver 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 government of that country and the United 
        States have entered into a binding agreement that--
                    (A) prohibits application of the universal 
                jurisdiction act over--
                            (i) covered United States persons,
                            (ii) covered allied persons, and
                            (iii) individuals for acts done while they 
                        were covered United States persons or covered 
                        allied persons,
                with respect to actions undertaken by them in an 
                official capacity, and
                    (B) ensures that no person described in 
                subparagraph (A) will be investigated, arrested, 
                detained, prosecuted, or imprisoned by reason of any 
                suit, investigation, or prosecution under the 
                applicable universal jurisdiction act.
    (b) Reports.--
            (1) Reporting requirement.--The President shall, with 
        respect to the government of each country with which the United 
        States has entered into a binding agreement under subsection 
        (a)(2), determine and report to the appropriate congressional 
        committees whether that government--
                    (A) remains party to, and has continued to abide 
                by, that agreement; and
                    (B) has taken no steps to investigate, arrest, 
                detain, prosecute, or imprison any person described in 
                subsection (a)(2)(A) pursuant to the applicable 
                universal jurisdiction act.
            (2) Timing of reports.--Reports under paragraph (1) shall 
        be submitted--
                    (A) not later than 6 months after the date of the 
                enactment of this Act; and
                    (B) not later than the end of each 1-year period 
                thereafter.
    (c) Termination of Waiver Pursuant to Subsection (a).--Any waiver 
exercised under subsection (a) with respect to a country shall 
terminate if and when a report submitted under subsection (b) contains 
a determination by the President that the government of that country--
            (1) is no longer a party to, or has not continued to abide 
        by, the agreement with that government under subsection (a)(2); 
        or
            (2) has taken steps to investigate, arrest, detain, 
        prosecute, or imprison any person described in subsection 
        (a)(2)(A) pursuant to the applicable universal jurisdiction 
        act.

SEC. 9. NONDELEGATION.

    The authorities vested in the President by section 8 may not be 
delegated by the President pursuant to section 301 of title 3, United 
States Code, or any other provision of law.

SEC. 10. DEFINITIONS.

    In this Act:
            (1) Universal jurisdiction act.--The term ``universal 
        jurisdiction act'' means a statute of a foreign country that 
        authorizes its judicial or prosecutorial authorities to 
        investigate, prosecute, and punish genocide, war crimes, acts 
        of torture, violations of human rights, or crimes against 
        humanity that--
                    (A) at the time of their actual or alleged 
                occurrence, were not committed by or against the 
                citizens or residents of that country or their 
                property;
                    (B) did not occur on the territory of that country 
                or territory under its control; or
                    (C) are otherwise prosecutable by an ad hoc 
                international criminal tribunal established by the 
                United Nations Security Council for the purpose of 
                prosecuting such acts.
            (2) Agent of a foreign principal.--The term ``agent of a 
        foreign principal'' has the meaning given that term in section 
        1 of the Foreign Agents Registration Act of 1938, as amended 
        (22 U.S.C. 611).
            (3) 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.
            (4) 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.
            (5) Covered allied person.--The term ``covered allied 
        person'' means any military personnel, elected or appointed 
        official, or other person employed by or working on behalf of 
        the government of a NATO member country, a major non-NATO ally, 
        or Taiwan, for so long as that government has not adopted a 
        universal jurisdiction act.
            (6) Covered united states person.--The term ``covered 
        United States person'' means any member of the Armed Forces of 
        the United States, any elected or appointed official of the 
        United States Government, and any other person employed by or 
        working on behalf of the United States Government.
            (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.
                                 <all>