[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5351 Introduced in House (IH)]

111th CONGRESS
  2d Session
                                H. R. 5351

 To safeguard the sovereignty and right to self-defense of the United 
 States and its allies, to prohibit United States participation in the 
         International Criminal Court, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 20, 2010

 Ms. Ros-Lehtinen (for herself, Mr. McKeon, Mr. Hoekstra, Mr. King of 
New York, Mr. Smith of Texas, Mr. Pence, Mr. McCotter, Mr. Lamborn, and 
  Mr. Garrett of New Jersey) introduced the following bill; which was 
              referred to the Committee on Foreign Affairs

_______________________________________________________________________

                                 A BILL


 
 To safeguard the sovereignty and right to self-defense of the United 
 States and its allies, to prohibit United States participation in the 
         International Criminal Court, 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 Self-Defense Protection Act 
of 2010''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (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) 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.''.
            (3) 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.''.
            (4) 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.''.
            (5) In a 2002 letter to the Secretary-General of the United 
        Nations, Under Secretary of State John Bolton stated that ``. . 
        . in connection with the Rome Statute of the International 
        Criminal Court . . . the United States does not intend to 
        become a party to the treaty. Accordingly, the United States 
        has no legal obligations arising from its signature on December 
        31, 2000.''.
            (6) On July 1, 2002, the Rome Statute entered into force, 
        and the International Criminal Court was enacted.
            (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 should be free from the 
        risk of prosecution by the International Criminal Court, 
        especially when 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 the International 
        Criminal Court.
            (9) In addition to exposing members of the Armed Forces 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 for 
        national security decisions involving such matters as 
        responding to acts of terrorism, preventing the proliferation 
        of weapons of mass destruction, and deterring aggression, 
        particularly if the International Criminal Court Assembly of 
        States Parties agrees on a definition of the Crime of 
        Aggression over United States objections.
            (10) No less than members of the Armed Forces, senior 
        officials of the United States Government should be free from 
        the risk of prosecution by the International Criminal Court, 
        especially with respect to official actions taken by them to 
        protect the national interests of the United States.
            (11) Efforts to subject senior United States officials and 
        members of the Armed Forces to criminal prosecution for 
        official actions taken by them to protect the national 
        interests of the United States could undermine the security of 
        the United States and the right and ability of the United 
        States and other democracies to defend themselves.
            (12) Any agreement on a definition of the Crime of 
        Aggression that usurps the prerogative of the United Nations 
        Security Council under article 39 of the charter of the United 
        Nations to ``determine the existence of any . . . act of 
        aggression'' would contravene the charter of the United Nations 
        and undermine deterrence.
            (13) In a letter dated November 29, 2000, a bipartisan 
        group of twelve former senior United States Government 
        officials expressed concern regarding the ``threat to American 
        sovereignty and international freedom of action posed by the 
        International Criminal Court (ICC)''. The signatories were the 
        following:
                    (A) Lawrence Eagleburger, former Secretary of 
                State.
                    (B) Brent Scowcroft, former National Security 
                Advisor.
                    (C) Caspar Weinberger, former Secretary of Defense.
                    (D) Zbigniew Brzezinski, former National Security 
                Advisor.
                    (E) James Woolsey, former Director of Central 
                Intelligence.
                    (F) Jeane Kirkpatrick, former Permanent 
                Representative of the United States to the United 
                Nations.
                    (G) Henry Kissinger, former Secretary of State.
                    (H) Donald Rumsfeld, former Secretary of Defense.
                    (I) Richard V. Allen, former National Security 
                Advisor.
                    (J) George Shultz, former Secretary of State.
                    (K) James A. Baker, III, former Secretary of State.
                    (L) Robert M. Gates, former Director of Central 
                Intelligence, and present Secretary of Defense.
            (14) In their November 29, 2000, letter, the twelve 
        bipartisan signatories added that ``any Americans prosecuted by 
        the ICC will be denied basic constitutional rights guaranteed 
        them under our Bill of Rights''.
            (15) In their November 29, 2000, letter, the twelve 
        bipartisan signatories further added that ``Naturally we think 
        it is essential that our nation's military personnel be safely 
        beyond the reach of an unaccountable international prosecutor 
        operating under procedures inconsistent with our Constitution. 
        War crimes and other human rights violations have long been 
        subject to criminal penalties under United States law, and the 
        United States has a far better record of enforcing its laws 
        against human rights violations than some of the countries that 
        support the ICC.''.
            (16) In their November 29, 2000, letter, the twelve 
        bipartisan signatories further added that ``we think it equally 
        important that the President, cabinet officers, and other 
        national security decision-makers not have to fear 
        international criminal prosecution as they go about their work. 
        The risk of international criminal prosecution will certainly 
        chill decision-making within our government, and could limit 
        the willingness of our national leadership to respond 
        forcefully to acts of terrorism, aggression, and other threats 
        to American interests. Indeed, we believe that American 
        leadership in the world could be the first casualty of the 
        ICC.''.
            (17) The United States has entered into bilateral 
        agreements with over 100 countries pursuant to article 98 of 
        the Rome Statute preventing the International Criminal Court 
        from proceeding against United States personnel present in 
        those countries.
            (18) On August 2, 2002, the American Servicemembers' 
        Protection Act of 2002 was signed into law as title II of the 
        2002 Supplemental Appropriations Act for Further Recovery From 
        and Response To Terrorist Attacks on the United States (Public 
        Law 107-206).
            (19) Among other things, the American Servicemembers' 
        Protection Act of 2002 prohibits United States cooperation with 
        the International Criminal Court and specifies restrictions 
        on--
                    (A) participation by covered United States persons 
                in United Nations (UN) peacekeeping and peace 
                enforcement operations; and
                    (B) transfer to the International Criminal Court of 
                United States classified national security and law 
                enforcement information.
            (20) Secretary of State Hillary Rodham Clinton stated on 
        August 6, 2009, that ``[It] is a great regret that we are not a 
        signatory'' of the Rome Statute of the International Criminal 
        Court.
            (21) Ambassador Susan Rice, Permanent Representative of the 
        United States to the United Nations, stated at a meeting of the 
        United Nations Security Council on January 29, 2009, that the 
        International Criminal Court ``looks to become an important and 
        credible instrument''. She further stated on August 12, 2009, 
        that ``We have changed course. . . . We no longer oppose 
        mentions of . . . the International Criminal Court''.
            (22) In November of 2009, the United States for the first 
        time sent an observer delegation to the Assembly of States 
        Parties of the International Criminal Court.
            (23) Stephen J. Rapp, Ambassador-at-Large for War Crimes 
        Issues, has expressed the willingness of the United States to 
        participate in the Review Conference of the Rome Statute of the 
        International Criminal Court, which is scheduled to be held 
        from May 31 to June 11, 2010, in Kampala, Uganda.
            (24) Ambassador Rapp has stated that the United States 
        ``will return to engagement at the ICC''.
            (25) On December 1, 2009, the President announced his 
        determination ``that it is in our vital national interest to 
        send an additional 30,000 United States troops to Afghanistan'' 
        in his ``Address to the Nation on the Way Forward in 
        Afghanistan and Pakistan'', delivered at the United States 
        Military Academy at West Point, New York.
            (26) During their testimony before the Committee on Foreign 
        Affairs of the United States House of Representatives on 
        December 10, 2009, General Karl W. Eikenberry (retired), United 
        States Ambassador to Afghanistan, and General Stanley A. 
        McChrystal, Commander, International Security Assistance Force 
        and Commander, United States Forces Afghanistan, were both 
        asked, ``Are you on record as saying that you are absolutely 
        opposed, under any circumstances, to men and women in uniform 
        being arrested anywhere in the world and tried before the ICC 
        court as a result of their actions in either Iraq or 
        Afghanistan?''. They both responded in the affirmative.
            (27) The Prosecutor of the International Criminal Court, 
        Luis Moreno-Ocampo, has reportedly stated that he considers all 
        soldiers operating on the territory of Afghanistan--even those 
        from nations who have not ratified the Rome Statute--to fall 
        under the jurisdiction of the International Criminal Court, and 
        that he is conducting a ``preliminary investigation'' into 
        whether NATO troops, including American soldiers, have 
        committed ``war crimes''.
            (28) Those seeking to prevent the democratic, Jewish State 
        of Israel from defending itself from violent militant groups 
        and their state sponsors have frequently attempted to use the 
        International Criminal Court in furtherance of this objective.
            (29) From December 2008 to January of 2009, in response to 
        thousands of rocket and mortar attacks spanning eight years 
        from Hamas and other violent militant groups in the Gaza Strip, 
        Israel conducted Operation Cast Lead in order to defend its 
        citizens from such attacks.
            (30) The Prosecutor of the International Criminal Court, 
        Luis Moreno-Ocampo, has reportedly stated that he is 
        considering a request by the Palestinian Authority to exercise 
        jurisdiction over the West Bank and Gaza in order to 
        investigate Israel's defensive Operation Cast Lead.
            (31) On September 15, 2009, pursuant to a one-sided, anti-
        Israel mandate from the notoriously biased United Nations Human 
        Rights Council, the ``United Nations Fact Finding Mission on 
        the Gaza Conflict'' released its report (known as the 
        ``Goldstone Report''), which--
                    (A) repeatedly made sweeping and unsubstantiated 
                determinations that the Israeli military had 
                deliberately attacked civilians during Operation Cast 
                Lead;
                    (B) in effect denied the State of Israel the right 
                to self-defense;
                    (C) never noted the fact that Israel had the right 
                to defend its citizens from the repeated violent 
                attacks committed against civilian targets in southern 
                Israel by Hamas and other Foreign Terrorist 
                Organizations operating from Gaza;
                    (D) largely ignored the culpability of the 
                Government of Iran and the Government of Syria, both of 
                whom sponsor Hamas and other violent militant groups; 
                and
                    (E) recommended that the report be referred for 
                further action to the Prosecutor of the International 
                Criminal Court.
            (32) On November 3, 2009, the United States House of 
        Representatives adopted House Resolution 867, which 
        ``consider[ed] the'' Report of the United Nations Fact Finding 
        Mission on the Gaza Conflict ``[the] Goldstone Report to be 
        irredeemably biased and unworthy of further consideration or 
        legitimacy'' and ``reaffirm[ed] its support for the democratic, 
        Jewish State of Israel, for Israel's security and right to 
        self-defense, and, specifically, for Israel's right to defend 
        its citizens from violent militant groups and their state 
        sponsors''.
            (33) As a non-party to the Rome Statute, the United States 
        is not bound by its terms, and does not recognize any claimed 
        jurisdiction of the International Criminal Court over United 
        States nationals.

SEC. 3. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) the United States should not ratify the Rome Statute of 
        the International Criminal Court;
            (2) the President should not submit for ratification the 
        Rome Statute of the International Criminal Court;
            (3) the President and the Secretary of State should not 
        undertake further actions that could legitimize the 
        International Criminal Court;
            (4) the President and the Secretary of State should lead a 
        high-level diplomatic effort to encourage additional countries 
        to enter into agreements 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 countries, and to strengthen existing article 
        98 agreements;
            (5) the President and the Secretary of State should lead a 
        high-level diplomatic effort to defend the right to self-
        defense of the United States and other democracies, including 
        the United States indispensable ally Israel, against efforts 
        such as the Goldstone Report that seek to deny democracies that 
        very right via entities like the International Criminal Court; 
        and
            (6) the President and the Secretary of State should explore 
        credible, alternative forums to combat impunity for war crimes 
        and other atrocities, while respecting the sovereignty and 
        right to self-defense of democracies with robust, autonomous, 
        and effective judicial systems.

SEC. 4. PROHIBITION ON USE OF FUNDS FOR PARTICIPATION IN THE 
              INTERNATIONAL CRIMINAL COURT.

    (a) In General.--Notwithstanding any other provision of law, no 
funds made available to any department, agency, or entity of the United 
States Government or to any State or local government, including any 
court, may be used for United States participation in the International 
Criminal Court or its attendant activities, including any review 
conference or meeting of the Assembly of States Parties.
    (b) Rule of Construction.--The prohibition under subsection (a) 
shall be construed to strengthen and supplement, not to weaken or 
supplant, the prohibitions stated in section 2004 of the American 
Servicemembers' Protection Act of 2002 (title II of the 2002 
Supplemental Appropriations Act for Further Recovery From and Response 
To Terrorist Attacks on the United States (Public Law 107-206)).

SEC. 5. DEFINITIONS.

    In this Act:
            (1) International criminal court.--The term ``International 
        Criminal Court'' means the court established by the Rome 
        Statute.
            (2) 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.
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