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.