[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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