[Congressional Record Volume 140, Number 2 (Wednesday, January 26, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: January 26, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                 DEPARTMENT OF STATE AUTHORIZATION ACT

  The PRESIDING OFFICER. Under the previous order the Senate will now 
resume consideration of S. 1281 which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 1281) to authorize appropriations for fiscal 
     years 1994 and 1995 for the Department of State, the United 
     States Information Agency, and related agencies, to provide 
     for the consolidation of international broadcasting 
     activities, and for other purposes.

  The Senate resumed consideration of the bill.

       Pending: Helms Amendment No. 1248, to withhold funds for 
     fiscal years 1994 and 1995 from the funds authorized for 
     contributions for International Organizations until the 
     President certifies that no United Nations Agency or United 
     Nations-affiliated agency grants any recognition to an 
     organization that condones pedophilia.


                       vote on amendment no. 1248

  The PRESIDING OFFICER. The question occurs on amendment No. 1248 
offered by the Senator from North Carolina [Mr. Helms]. The yeas and 
nays have been ordered and the clerk will call the roll.
  The legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from Rhode Island [Mr. Pell] is 
necessarily absent.
  I further announce that, if present and voting, the Senator from 
Rhode Island [Mr. Pell] would vote ``aye.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 99, nays 0, as follows:

                       [Rollcall Vote No. 2 Leg.]

                                YEAS--99

     Akaka
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boren
     Boxer
     Bradley
     Breaux
     Brown
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Conrad
     Coverdell
     Craig
     D'Amato
     Danforth
     Daschle
     DeConcini
     Dodd
     Dole
     Domenici
     Dorgan
     Durenberger
     Exon
     Faircloth
     Feingold
     Feinstein
     Ford
     Glenn
     Gorton
     Graham
     Gramm
     Grassley
     Gregg
     Harkin
     Hatch
     Hatfield
     Heflin
     Helms
     Hollings
     Hutchison
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     Mathews
     McCain
     McConnell
     Metzenbaum
     Mikulski
     Mitchell
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Nunn
     Packwood
     Pressler
     Pryor
     Reid
     Riegle
     Robb
     Rockefeller
     Roth
     Sarbanes
     Sasser
     Shelby
     Simon
     Simpson
     Smith
     Specter
     Stevens
     Thurmond
     Wallop
     Warner
     Wellstone
     Wofford

                             NOT VOTING--1

       
     Pell
       
  So the amendment (No. 1248) was agreed to.
  Mr. HELMS. Mr. President, I move to reconsider the vote.
  Mr. KERRY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senate will be in order.
  The Chair recognizes the Senator from South Dakota [Mr. Pressler].


                           Amendment No. 1253

 (Purpose: Relating to United Nations budgetary and management reform)

  Mr. PRESSLER. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from South Dakota [Mr. Pressler], for himself, 
     Mr. Byrd, Mr. Helms, Mr. Conrad, Mr. Burns, Mr. Dole, Mr. 
     Stevens, Mr. Lott, and Mr. Domenici, proposes an amendment 
     numbered 1253.

   Mr. PRESSLER. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
   The PRESIDING OFFICER. Without objection, it is so ordered.
   The amendment is as follows:

       Beginning on page 72, strike out line 1 and all that 
     follows through line 5 on page 74 and insert in lieu thereof 
     the following:

     SEC. 170B. UNITED NATIONS BUDGETARY AND MANAGEMENT REFORM.

       (a) Withholding of Assessed Nonpeacekeeping Contributions 
     to the United Nations.--(1) In fiscal year 1994, 10 percent 
     of the amount of funds authorized to be appropriated for that 
     fiscal year for United States assessed contributions to the 
     United Nations and its specialized agencies shall be withheld 
     from obligation and expenditure until a certification is made 
     under subsection (b).
       (2) Beginning with fiscal year 1995 and at the beginning of 
     each fiscal year thereafter, 50 percent of the amount of 
     funds authorized to be appropriated for each fiscal year for 
     United States assessed contributions (other than for 
     peacekeeping activities) to the United Nations and its 
     specialized agencies shall be withheld from obligation and 
     expenditure until a certification is made under subsection 
     (b).
       (b) Certification.--The certification referred to in 
     subsection (a) is a certification by the President to the 
     Congress that--
       (1) the United Nations has established an independent and 
     objective Office of Inspector General to conduct and 
     supervise audits, inspections, and investigations relating to 
     the programs and operations of the United Nations and each of 
     the specialized agencies of the United Nations;
       (2) the Secretary General of the United Nations has 
     appointed an Inspector General, with the consent of the 
     General Assembly, solely on the basis of integrity and 
     demonstrated ability in accounting, auditing, financial 
     analysis, law, management analysis, public administration, or 
     investigations;
       (3) the United Nations Office of Inspector General is 
     authorized to--
       (A) make investigations and reports relating to the 
     administration of the programs and operations of the United 
     Nations and its specialized agencies;
       (B) have access to all records and documents or other 
     material available which relate to those programs and 
     operations; and
       (C) have direct and prompt access to any official of the 
     United Nations or of any of its specialized agencies, 
     including any head of a specialized agency or official of the 
     United Nations Secretariat;
       (4) the United Nations Office of Inspector General is 
     keeping the head of each specialized agency, the Secretary 
     General, the members of the Security Council, and the members 
     of the General Assembly fully informed about problems, 
     deficiencies, and the necessity for, and progress of, 
     corrective action;
       (5) the United Nations has established measures to protect 
     the identity of, and to prevent reprisals against, any staff 
     member making a complaint or disclosing information to, or 
     cooperating in any investigation or inspection by the Office 
     of the Inspector General; and
       (6) the United Nations has enacted procedures to ensure 
     compliance with the recommendations of the Inspector General.
       (c) Definition.--For purposes of this section, the term 
     ``United Nations operations'' includes any program, project 
     or activity conducted or supported, in whole or in part, by 
     the United Nations or any of its specialized agencies.

  Mr. PRESSLER. Mr. President, this amendment is cosponsored by my 
colleagues, Senator Byrd, Senator Helms, Senator Dole, Senator Stevens, 
Senator Domenici, Senator Lott, Senator Burns, and Senator Conrad, 
among others.
  The broad cosponsorship from across the political spectrum, I think, 
indicates the interest in management reform in the United Nations. This 
amendment requires that beginning in fiscal year 1994, 10 percent of 
our assessed contributions to nonpeacekeeping operations for 
the United Nations be withheld until the President certifies that the 
United Nations has established a permanent, independent inspector 
general as well as a system for review of internal audits by member 
nations.
  If, in 1995, the President cannot certify that an independent 
inspector general has been established or that a system for review of 
internal audits has not been established by fiscal year 1995, 50 
percent of our assessed contributions to nonpeacekeeping operations of 
the United Nations will be withheld.
  Mr. President, there has been much discussion ranging from a piece on 
``60 Minutes'' to several articles about corruption and mismanagement 
in the United Nations. The United Nations seems unable or unwilling to 
reform itself. Our taxpayers are asking very hard questions about why 
it is that supplies that are sent to a point in Africa or Asia 
disappear overnight and we are told they are stolen and the next day 
they turn up on the black market. It has also happened in Yugoslavia.
  The system of management and controls is out of hand. The United 
Nations needs an inspector general, a real inspector general, an 
independent inspector general, someone who can check up, do the audits, 
and punish people within the system. There is no such system presently.
  I have described the amendment. It is quite simple. It seems the only 
way we can get the attention of the United Nations is by threatening to 
do some withholding of funds, but also we have the attention of our 
taxpayers on this issue because of the large amount of press and other 
information that has been made available.
  This is a tough amendment. I am sure many of my colleagues will 
agree. Some may say too tough. But it is necessary. It is necessary if 
this Congress finally is to take a stand against the rampant waste, 
fraud, abuse, and outright thievery that takes place at the United 
Nations.
  The season premiere of the television newsmagazine ``60 Minutes,'' 
last fall, led off with a scathing report on the U.N.'s runaway gravy 
train. This report is only the most visible example of the growing 
worldwide media and public interest in U.N. mismanagement. In the past 
year alone, I have talked with journalists in this country, as well as 
reporters from England, Germany, and Japan. U.N. mismanagement is a 
page 1 story. It is about time.
  In roughly 13 minutes, ``60 Minutes'' documented what I have known 
for years: The United Nations suffers from serious financial 
irresponsibility. We have learned that the U.N.'s peacekeeping 
operation in Cambodia has been a diplomat's dream, but an auditor's 
nightmare. Consider the following:
  When awarding contracts for helicopters, the United Nations shunned 
cost effective bids in favor of more expensive, but preferred clients;
  Scores of vehicles and equipment were bought but never used;
  U.N. vehicles and equipment were stolen by the Cambodian Government--
only to resurface on the open market;
  Water purification systems were purchased, but didn't work;
  U.N. auditors recommended the dismissal of two U.N. personnel for 
misconduct, but no action has been taken against them; and
  The United Nations ``inadvertently'' purchased 850 minibuses that 
were never needed for the operation--a waste of $10 million.
  The examples I have described demonstrate that U.N. management is 
seriously out of control. Yet, according to the former U.N. Under 
Secretary General for Administration and Management, Melissa Wells, 
confidential internal audits of the U.N. operation in Cambodia have 
uncovered far more abuses beyond those I have just cited. Think of that 
for a moment--as disturbing as the examples I have described are, the 
chief management officer at the United Nations said we have only 
exposed the tip of the iceberg.
  Incidentally, Melissa Wells was forced out of her position recently 
by none other than U.N. Secretary General Boutros Boutros-Ghali and his 
staff. Melissa Wells was the highest ranking American official at the 
United Nations. The position of under-secretary general for 
administration and management has oversight over efforts to reform the 
United Nation's inefficient bureaucracy, and responsibility for 
security, contracts, and support services for peacekeeping operations. 
Her removal hampers the reform effort. And it exemplified the 
unwillingness of the leadership at the United Nations to deal with 
reform.
  Mr. President, I think we should also say that the previous holder of 
a high post, Governor Dick Thornburgh, of Pennsylvania, was at the 
United Nations. After a year, he was forced out but he did a report and 
he himself has testified that his report was shredded at the United 
Nations. It has pointed out many of the mismanagement things and he has 
put that on the official record.
  So it seems to me that we have a very serious problem here. We have 
been working on it every year before the Foreign Relations Committee. 
We get assurances that our State Department is going to be tougher up 
there in insisting on this. They sort of brush us off, take the money, 
and do the same thing. It goes on year after year after year. So with 
this amendment, finally we are getting to some teeth. Finally we are 
trying to actually do something about it.
  This country is the largest donor to the United Nations.
  If we threaten to withhold funds--I think we have a right to do that 
if some changes are not done--then we will accomplish our goal. The 
fact is, even President Clinton was not allowed to view any of the 
United Nations' confidential internal audits.
  Why? Because, the United Nations prohibits representatives of member 
countries from doing so. Think of that, the United States--the single 
largest contributor to the United Nations--is not allowed to see how 
its money is being managed, or in this case, mismanaged. Mr. President, 
that must change.
  The ``60 Minutes'' team pointed out other examples of U.N. 
mismanagement in New York. Mike Wallace uncovered evidence that the 
United Nations was publishing reports of events years after the fact. 
For example, a 1986 human rights report was not published until 1992. 
Mr. Wallace also found that the U.N. Public Information Office could do 
without 700 of its 1,000 employees if cost-effective automation were 
instituted. Yet, no U.N. official has the authority to effect any 
reorganization plan that results in the reduction of U.N. personnel, 
regardless of how much time and money it would save. Mr. President, 
this too must change.
  Consideration is one of the many reforms sorely needed in the United 
Nations. Melissa Wells' predecessor, former Attorney General Richard 
Thornburgh, wrote a blistering report of the U.N. management fiasco. 
Was the Thornburgh report welcomed? No. In fact, the only notable U.N. 
element that tore through the Thornburgh report was the U.N. paper 
shredder.
  Mr. Thornburgh found numerous U.N. bureaus, commissions, and agencies 
with overlapping or duplicated functions. For example, there are three 
different U.N. offices in Rome dealing exclusively with food. There are 
reports of unauthorized staff--U.N. 
``deskwarmers.'' There are reports of retired 
U.N. personnel who are hired back as consultants and receive a 
consulting fee as well as their full pension. Recently, the Secretary 
General created a new position for a special representative to manage 
the U.N.'s golden anniversary next year. This position and salary--
approximately $140,000 per year net of taxes--were never approved by 
the General Assembly. Mr. President, again, that must change.

  The United Nations has no system to monitor cash flow. No U.N. 
official could tell us how many people are on the U.N. payroll. It is 
reasonable to assume the personnel levels are above the amount 
authorized by the U.N. General Assembly.
  Despite--or perhaps because--it spends as if it possessed a 
bottomless well of wealth, the United Nations leadership claims it is 
in a financial crisis. Should we and other member nations come to aid 
the United Nations in this crisis? Absolutely. But future funds should 
come at a price--the price of reform. It is time for the United Nations 
to implement management, accounting, and personnel reforms.
  The United Nations can do plenty to save money. Its administrative 
operations can be streamlined. Unauthorized staff and those found to 
have engaged in practices of waste, fraud, or abuse should be 
dismissed. Duplicate or unnecessary bureaus, agencies, or offices can 
be eliminated. In short, the United Nations can tighten its belt a few 
notches and channel those savings into needed programs.
  Regrettably, the United Nations seems prepared to trade in its belt 
for an elastic waistband. The Secretary General's United Nations 
operating budget for 1994-95 calls for an 11-percent increase over the 
current year, including a 20-percent increase in travel expenses. This 
it the United Nations normal operating budget. It does not include the 
budget for peacekeeping. Both the operating budget's amount and the 
growth rate exceed the levels authorized by the 47th General Assembly. 
As a result, the United States is required by law to withhold 20 
percent of funds appropriated for our assessed U.N. contributions.
  Just to be fair, the United Nations has proposed several measures 
aimed at coping with its cash flow problem. However, these so-called 
economy measures are reductions in services that amount to savings of 
no more than $5 million per year--a very meager amount for an 
institution that spends $10 million per day. Further, the Secretary 
General has pledged that any reorganization would not result in the 
reduction of U.N. personnel. Is this reform? Not even close.
  So, Mr. President, the Secretary General has made a commitment that 
whatever they do up there they are not going to reduce U.N. personnel 
regardless of what. He made that promise. I think that is unfair to our 
taxpayers.
  Finally, Mr. President, I have serious concerns that we have allowed 
our financial obligations to the United Nations to be increased 
fraudulently. Let me explain. Under its own rules, the United Nations 
operates a separate fund to finance administrative costs in direct 
support of peacekeeping activities. These funds are included as part of 
the U.N.'s peacekeeping budget. The United States is obligated to pay 
31.7 percent of the U.N. peacekeeping budget, compared to our 
obligation to pay 25 percent of the regular budget. Last fall, the 
Secretary General submitted a proposal for the General Assembly to 
allocate an additional $32 million for administrative costs for 
peacekeeping. At that time, I learned that most of the proposed 
expenditures have nothing to do with peacekeeping. In fact, I wrote to 
our representative to the United Nations, Madeleine Albright, urging 
her to look into this matter. Surprisingly, in light of all of this 
information, the State Department has endorsed the United Nations' 
supplemental budget request, which amazes me.

  Mr. President, this matter has far reaching implications. I have no 
doubt the U.N. supplemental budget fiasco could lead to a larger effort 
to shift regular budget expenses to peacekeeping. This would force the 
United States to pay 31.7 percent of U.N. costs rather than the 25 
percent regular budget assessment. Thus, the U.N. leadership is pulling 
a fast one on the American taxpayer by artificially inflating our 
financial obligations to the United Nations. Mr. President, that kind 
of magician's management must be stopped.
  I believe my point has been made. The United Nations is the world's 
policeman, but it has neither the resources nor the will to police 
itself. The United Nations is home to the world's most distinguished 
diplomats, but it needs an undiplomatic, distinguished, tough-minded 
inspector general to clean up the United Nations' financial house.
  That is the bottom line. The United Nations is in need of reform now. 
The United Nations can start by establishing a permanent, independent 
inspector general. I understand the U.N. leadership does not find tough 
fiscal management very exciting. U.N. personnel are there to 
participate in the grand world of diplomacy, not the mundane world of 
balance sheets. I fear the repercussions if we continue to allow the 
United Nations to turn its back on sound management practices. I fear 
that once the American taxpayer learns what is going on in the United 
Nations, the credibility of and support for the United Nations will 
suffer. We must do something about it.
  I am here to do something about it because I support the United 
Nations. I twice served as a delegate to the United Nations from this 
Senate.
  As a young person, I belonged to the Minnehaha County U.N. 
Association in South Dakota. I believe we must make the United Nations 
work and I have worked on this problem for years. Even in committee, 
every year the Ambassador who comes forward always promises they are 
going to work hard on this issue. I have been up and met with Boutros-
Ghali. I met with Dick Thornburgh after his report was shredded. I have 
been plugging away at this problem for a long time. I regret offering 
an amendment of this sort, but it is the only way we are going to get 
anything done, and that is the truth of the matter.
  I served on the U.S. Commission to Improve the Effectiveness of the 
United Nations, along with my good friend from Rhode Island, the 
chairman of the Senate Foreign Relations Committee. Though the 
Commissioners had differing opinions on many subjects, the entire 
Commission strongly believed the United Nations needed a tough, 
independent inspector general.
  The United Nations represents one of our Nation's most sound, cost-
effective foreign policy investments. Let me make one point very, very 
clear: My problem is not with the United Nations as an institution. My 
problem is with U.N. leadership. In fact, my frustration would not be 
so strong if I did not believe in the United Nations itself.
  There have been recent attempts to withhold funds from the United 
Nations to achieve reform. The fiscal year 1994 Department of State 
appropriations bill includes report language calling for the 
withholding of 10 percent of assessed nonpeacekeeping contributions 
until an inspector general is established. I commend my good friend 
from New Mexico, Senator Domenici, for leading that effort. It is an 
important step. In fact, my amendment would write that report language 
into law.
  I want to commend Pete Domenici for the great work he has done on 
this. He has been a leader on the Appropriations Committee, and this is 
written into the Appropriations Committee law. For people listening to 
this who are confused why we are doing the authorization after the 
appropriations, it indicates the need for reform in the Senate, but 
that is my opinion. That is a technical matter. I do commend Senator 
Domenici for having that written into the appropriations law.
  Frankly, I am not optimistic that withholding 10 percent of our 
assessed contributions--roughly $50 million--will compel the United 
Nations leadership to take action. We already withhold an amount that 
exceeds $44 million annually in order to achieve relatively minor 
administrative reforms. Some things did happen under the Kassebaum 
amendments of the past. These current withholdings have not had the 
desired effect.
  We need to be prepared that the United Nations will not take action 
during the current fiscal year. If reforms are achieved, we need to be 
prepared to hold the United Nations to them. We need to be prepared to 
be even tougher.
  That is what my amendment would do. My amendment would require that, 
beginning in fiscal year 1994, 10 percent of our assessed 
nonpeacekeeping contributions to the United Nations be withheld until 
the President certifies that an independent office of inspector general 
is established and in operation. If, in 1995, the President is unable 
to certify the establishment of an independent inspector general, the 
withholding will increase to 50 percent of our assessed nonpeacekeeping 
contributions. This is not just one certification requirement. It is an 
annual certification that would begin on the first day of the next 
fiscal year.
  Some will argue that we are making political hay of the United 
Nations. Some have stated the U.S. Government is full of waste, fraud 
and abuse, and Congress should not be pointing fingers at the United 
Nations. Yes, waste occurs in our Government. The difference is we have 
independent inspectors general to investigate fraud, and recommend 
punishment of wrongdoers. U.S. attorneys can indict any one of us here 
in Congress for violating the law. They have done so. Not one U.N. 
official has that kind of authority. When asked by Mike Wallace when 
the last time a U.N. employee was fired for fraudulent or illegal 
activities, the United Nations chief management officer could not 
answer the question.
  Some also will argue this amendment would hurt very needy programs 
and projects within the United Nations. I disagree. The United Nations 
is being hurt now. Every dollar that is wasted, embezzled, or stolen is 
a dollar taken away from projects or programs in the United Nations 
that work. It is about time we withhold a significant portion of those 
funds until we know they will be put to good, sound use. If we pass 
this amendment, all the United Nations has to do to receive its full 
assessed contributions from the United States is to get its house in 
order.
  With my amendment, the reform ball will be in the United Nations 
court. That is where it should be. Let us pass them the ball by 
agreeing on this amendment.
  Some also will claim the United Nations is cleaning up its act. Some 
may point to last summer's appointment by the United Nations of a so-
called inspector general. If any of my colleagues believe this is true 
reform, I have some monuments for sale here in town real cheap. I urge 
my colleague to take a look at the fine print on this so-called 
inspector general. The office is only temporary. It is not independent. 
It uses the same resources that have failed to accomplish management 
reform. And to top it off, the person appointed to fill this so-called 
inspector general position is a two-decade veteran of the runaway U.N. 
gravy train and is a friend of the Secretary General.
  Is this reform? Hardly. This is window dressing. It is a feeble 
attempt to assuage the concerns and silence the critic in the United 
States.
  Mr. President, it is very unfortunate that I have to stand here today 
and recommend we take punitive action. I do not enjoy doing this. I am 
here because we have little choice. The U.N. leadership refuses to take 
seriously our requests for a tough inspector general with teeth. We 
have tried diplomacy. We have tired friendly persuasion. My friends, 
the United Nations is paying little, if any, attention to its largest 
contributor. Our words have received little notice. If the Senate 
passes my amendment today, the U.N. leadership will sit up and take 
notice. It is about time that the single largest contributor to the 
United Nations exercise its ultimate leverage.
  Yes, Mr. President, it has come to that. Our obligations to the 
United Nations will continue to grow. The United Nations 
responsibilities will continue to grow. The United Nations 
responsibilities will continue to grow. It is time for the United 
States to take a step back and insist the United Nations police itself 
with the same vigor and commitment it applies when it polices the 
world.
  I urge my colleagues to adopt the amendment.
  (Mrs. BOXER assumed the chair.)
  Mr. PRESSLER. Madam President, let me summarize and conclude by 
saying that, based on my experience serving as a delegate to the United 
Nations twice, in New York, we have and have had a very serious 
attitude problem with waste, fraud and abuse, and there definitely is a 
culture within the United Nations of waste, fraud and abuse. Many 
countries in this world look upon participation in the United Nations 
as an opportunity to make some money. Frankly, there are many countries 
in this world that are autocracies. They are also stealing from their 
own people.
  But the situation has reached a point in the United Nations where our 
taxpayers and our press and our citizens are in an uproar. We do, 
however, want the United Nations to succeed. Indeed, as I have said, I 
have devoted many years of work to U.N. activities. This amendment will 
make the United Nations better. It has teeth in it. It has already been 
adopted in the appropriations language, as the Domenici amendment.
  It is very important that the Senate vote for this amendment. I am 
proud to say we have bipartisan leadership on both sides of the aisle. 
I hope that this amendment is adopted.
  Mr. BYRD. Madam President, I commend the Senator from South Dakota 
for his leadership on this issue. The Senator is on exactly the right 
track with his efforts. The United Nations needs the oversight of its 
budget and programs that would be provided by an office of inspector 
general. As the Senator will recall, when he offered a similar 
amendment to the foreign operations appropriations bill last year I 
indicated my support for his initiative, but I wanted to wait for 
consideration of the State Department authorization bill which is now 
before the Senate. This bill includes authorization for the general 
assessment for overall U.N. funding and I thought it would be 
preferable to attach such an amendment to that funding rather than the 
voluntary contributions for the specialized agencies contained in the 
foreign operations bill. The Senator from South Dakota graciously 
agreed to withhold his amendment and I thank him. I can now fully 
support this very important effort to encourage the United Nations to 
create an independent, effective inspector general.
  As the post-Cold War international order continues to evolve, the 
United Nations has begun to assume a much more activist role in world 
affairs. Across a broad range of issues, but most importantly with 
respect to humanitarian relief and peacekeeping, the nations of the 
world increasingly have tried to use the United Nations as a mechanism 
for coordinated multilateral action. Unfortunately, the current U.N. 
bureaucracy is the product of more than four decades of cold war 
gridlock, with the world's superpowers treating the United Nations as 
little more than an arena for nations to blow off steam, and not as an 
organization to be trusted with any real responsibilities.
  The neglect of the United Nations during the Cold War has produced 
what Richard Thornburgh, former U.S. Attorney General and U.N. 
Undersecretary General for Administration, described as an antiquated 
management structure, with budgeting practices that are almost surreal. 
He is only one of a chorus of voices calling for reform of U.N. 
management, budgeting and oversight. In fact, it is nearly impossible 
to find someone familiar with the functioning of the United Nations 
that does not recognize the need for dramatic restructuring and reform.
  Despite the seriousness of the situation, it is obvious that the 
system will not be reformed from within. Too much dead wood has become 
too entrenched over too long a period of time, and inefficiency has 
become self-perpetuating. The August 1993 announcement of the 
appointment of a new Assistant Secretary General for Inspections and 
Investigations was encouraging, but it falls short of what is needed in 
the area of oversight. Undersecretary Thornburgh wrote that the United 
Nations is ``almost totally lacking in effective means to deal with 
fraud, waste and abuse by staff members.'' The new Assistant Secretary 
General will only exist for 1 year, will have limited resources, very 
little stature, and no increase in current authority. This does not 
begin to address the problem.
  Unfortunately, even this modest attempt at reform has now been 
overshadowed by the firing of Melissa Wells, the United Nations 
official in charge of reform efforts. Ms. Wells had succeeded Richard 
Thornburgh as the Undersecretary General for Administration and was the 
highest ranking American at the United Nations. She was dismissed even 
though the Washington Post of January 18, 1994 reported that the United 
States mission to the United Nations thought that she was moving too 
slowly in the direction of reform. If that is the case then it is even 
more troubling that Secretary General Boutros-Ghali and the United 
Nations bureaucracy found her efforts to be too intrusive.
  The United Nations desperately needs true oversight in the form of an 
office of inspector general with all the attributes normally associated 
with such a position. Undersecretary Thornburgh had suggested creating 
this office as the centerpiece of his U.N. reform proposal. More 
recently, the United States mission to the United Nations, under the 
leadership of Ambassador Madeleine Albright, has tried, without 
success, to prod the United Nations into creating this office. If the 
United Nations has any hope of fulfilling a more activist role in world 
affairs it must first have the full support of its membership, 
including the United States. Providing adequate review and oversight 
through an inspector general would represent an important first step to 
putting a very messy house in order at the United Nations, and the 
United States, as its largest contributor, should insist on at least 
this most basic reform.
  Mr. PRESSLER. Madam President, I would be happy to have a stacked 
vote. I might ask my colleague from Massachusetts if he prefers that 
this vote be stacked. Would it be appropriate to ask for the yeas and 
nays at this point?
  Mr. KERRY. Madam President, we agreed previously to temporarily set 
this aside. Senator Glenn, I believe, is going to speak for a few 
moments, and subsequent to that Senator Helms will propose a separate 
amendment, and there will be some debate on that. I say to my 
colleague, it may be that we will wind up accepting this amendment, and 
I would like to have a discussion with him on it. There is great merit 
to much of what he has said, and we have debated this and discussed 
this within the committee. I have worked with him on this issue. He has 
been a stalwart advocate of reform within the United Nations. But there 
are some problems we see in this amendment. It may be possible to work 
them out.
  Madam President, I ask unanimous consent that after the statement of 
the Senator from Ohio [Mr. Glenn], the amendment be temporarily set 
aside and subsequently we proceed to the amendment of the Senator from 
North Carolina.
  The PRESIDING OFFICER. Is there objection?
  Mr. PRESSLER. Reserving the right to object, and I will not object, I 
hope we can get back to this amendment, perhaps hold a vote on the two 
amendments stacked after that. Would that be agreeable?
  Mr. KERRY. It would be agreeable, providing we can have an agreement 
as to subsequent business. There is a luncheon, I understand, that may 
take some Members away. We need to be working during that time. So if 
we can have an agreement as to an amendment to proceed on during that 
time, I would be happy to stack. In the absence of an agreement to 
proceed forward, we would have to simply vote and continue as we go.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Madam President, I wish to make very short remarks.
  First, I should like to congratulate my colleague from South Dakota 
for his work in this particular area. It is an area which has 
interested me for many years also, one about which I talked to some of 
the people at the United Nations In fact, during the past break I 
planned to go to New York sometime to go over this matter with some 
officials at the United Nations
  The Senator has taken very forceful action here, and we may want to 
approve this later. I do not know.
  At the United Nations we are beginning to be more active. The United 
Nations is more active in more events around the world that require 
more military activity by more countries than ever before, and yet 
support for the United Nations is not going to long endure or expand in 
all this increased functioning they are doing around the world if the 
people around the world who support the United Nations, primarily the 
United States as the biggest contributor, do not have faith that the 
money is being spent wisely, is being monitored, and is going to the 
purpose for which intended.
  So the distinguished Senator from South Dakota points out a very real 
problem. I have discussed some of the proposals for an IG at the United 
Nations with some of the people up there. I did that because I have had 
some experience here. The IG legislation goes through my Governmental 
Affairs Committee, the committee I chair. I supported it years ago. And 
then it was my legislation which expanded the inspectors general just a 
few years ago. They are doing a great job within our own Government, 
doing a superb job, as a matter of fact, in ferreting out fraud, waste, 
and abuse in our own Government and, I think, eventually could do the 
same thing in the United Nations
  There is only one place I would part company a little bit with my 
colleague from South Dakota. I understand his frustration, but I am a 
little hesitant about cutting off funds. I would like to first perhaps 
go with him in maybe a delegation to the United Nations and sit down 
with the appropriate people up there and outline how IG's are working 
within our own Government, how they could work at the United Nations 
and how this is going to be absolutely necessary if we are going to 
have the support of the U.S. Government and the citizens of the United 
States into the future. This is going to be absolutely necessary. I 
think an IG at the United Nations absolutely has to be put into place, 
and it cannot just report to its own people. It has to report to the 
member governments so we will have faith in what that IG is doing and 
faith that the United Nations is being run as efficiently as possible.
  So I support the objectives of my colleague from South Dakota. I hope 
perhaps we could set up such a visit to the United Nations with 
representatives from appropriate committees in the Senate and maybe 
convince them to accept this so we do not have to really go through a 
cutoff of funds. I would hate to see us go that route.
  So I am very much in support of what the Senator is doing and want to 
support him and hope we can work together on this.
  I thank the Chair.
  Mr. KERRY addressed the Chair.
  The PRESIDING OFFICER. If the Senator will withhold, without 
objection amendment No. 1253 is laid aside.
  Mr. PRESSLER. Reserving the right to object, as I understand it, we 
will get a vote on my amendment.
  Mr. KERRY. Madam President, in answer again I said to the Senator 
that it may be possible we will not need to have a record vote. We may 
be able to voice vote and accept it.
  Mr. PRESSLER. I would like to have a vote on it. I would like to show 
a clear vote because I think the Senate feels very strongly about this. 
I would like to get an agreement here that we will go forward to a 
vote. I am not causing any controversy. I am not prolonging the 
discussion. I have a vast number of cosponsors on both sides of the 
aisle. I think we can move this amendment very quickly, but I do not 
want to alter it. It is not my intention to make any changes.
  We are ready to go. I am trying to speed things up.
  Mr. KERRY. Madam President, the Senator obviously has the right to 
ask for the yeas and nays on his amendment any time he wants. So I am 
not trying to prevent him, obviously, from something I cannot prevent 
him from doing. I am simply suggesting that there may be a way to 
diminish the amount of time we spend on this amendment, the amount of 
debate that is necessary. So if the Senator would agree to at least 
temporarily set aside--it is already set aside, as a matter of fact. I 
would simply ask him to reserve the request on a vote at this moment 
until we have had time to converse, but he obviously is entitled to 
have a vote on this at any time he wants.
  Mr. HELMS. As one of the two managers of the bill, I am prepared to 
assure the Senator from South Dakota that his amendment will not be 
passed on a voice vote in his absence. I am sure the Senator from 
Massachusetts feels the same way.
  Mr. KERRY. I would make the same----
  Mr. PRESSLER. What I am trying to do here is speed things up. We are 
trying to get this bill going. We are trying to get Senators to the 
floor.
  Mr. KERRY. Let me say to the Senator from South Dakota, nobody wants 
to speed this up more than I do. We have about 70 amendments filed. The 
majority leader has made it clear that the issue of whether or not we 
are here Friday is dependent on our ability to finish this bill by 
tomorrow night.
  If we do not finish this bill by tomorrow night, the majority leader 
has made it clear we will be here until late on Friday working on this 
bill.
  So I want to move the amendments. One of the efforts to move the 
amendments is predicated on diminishing the areas of contention by 
trying to work them out together so we do not have a prolonged debate 
on an amendment if it is not necessary. I simply would like to see, 
with my friend from South Dakota, if we can avoid contention on this 
amendment, in which case it might pass very quickly with a record vote 
or otherwise.
  But let us spend a minute trying to do that if we can.
  The PRESIDING OFFICER. Is there further objection? Without objection, 
the amendment is laid aside.
  Mr. KERRY. I say to my colleagues, I repeat this entreaty on behalf 
of the majority leader, we have proceeded fairly rapidly through some 
noncontentious amendments and they have been accepted by voice vote. We 
are prepared to move very rapidly with the other amendments if we can 
work them out. But those colleagues who have filed amendments should 
come to the floor now so that we can proceed to work and, hopefully, 
finish this bill by tomorrow night precluding the necessity of 
everybody being here Friday.
  I believe now, Madam President, that the Senator from North Carolina 
has an amendment.
  Mr. HELMS addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Carolina, [Mr. Helms].


                           Amendment No. 1254

 (Purpose: To strike all language in Section 170A relating to support 
                  for an international criminal court)

  Mr. HELMS. Madam President, I send an amendment to the desk and I ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from North Carolina [Mr. Helms] proposes an 
     amendment numbered 1254.
       At the appropriate place, strike section 170A in its 
     entirety.
  Mr. HELMS. Madam President, I thank the Chair for recognizing me.
  Madam President, in all candor, the International Criminal Court is a 
very unwise and very dangerous proposal.
  Yesterday, I alluded to one of the truly great Senators who served in 
this body, the late great Senator Sam J. Ervin, Jr. I am looking at the 
desk that he occupied as I speak.
  I had the privilege of serving as Senator Ervin's junior colleague 
for the first 2 years that I was in the Senate. I have never spent two 
more enjoyable or meaningful years than those 2 years. He was a great 
American. He was a great constitutional scholar. And he was respected 
throughout this land.
  He constantly warned, on this floor and off, to be wary of turning 
over the sovereignty of the United States in the slightest degree to a 
world court or any other tribunal by any other name. He was eloquent 
every time this matter was mentioned.
  So here we are proposing to do something that I know, if I may use 
the expression, is causing Sam Ervin to spin in his grave because he 
would say today, if he were here, what I am about to say; that is, that 
what is at stake is a proposed total reversal of longstanding U.S. 
policy against encouraging the establishment of a permanent 
international criminal court to try individuals, potentially including 
American citizens, for such vague crimes as ``colonialism,'' or 
``environmental crimes.'' These crimes and these cases would be tried 
before judges who could be from North Korea, Cuba, or other unfriendly 
places.
  But the principle is that we must protect the sovereignty of this 
country and the rights of American citizens. Otherwise, we ought to 
give up professing to be an American institution called the U. S. 
Senate.
  I daresay I do not take to the likes of nations like North Korea or 
Cuba sitting in judgment upon the United States of America or any 
citizen thereof.
  I have laid down the predicate.
  Now I specifically reject the view expressed at the subcommittee 
markup that this, after all, is just sense-of-the-Senate language. If a 
sense of the Senate does not mean anything, let us stop doing it.
  The Foreign Relations Committee adopts a number of such positions 
every year. I, as a rule, respect them because to me a sense-of-the-
Senate resolution means what it says. If we do not mean for it to mean 
anything, I say again we ought to stop doing it.
  I know that my good friend from New York, the distinguished Senator, 
Mr. Moynihan, respects the Burma resolution that he and I collaborated 
on. And from time to time Senator Biden and I have written a few 
resolutions regarding China issues.
  Let me say again that back in 1973 I had the privilege of serving 
with an authority on this subject. I pay tribute to Sam Ervin again 
because in my judgment, and in the judgment of millions of other 
Americans, he was one of the wisest men who ever sat in this Senate. 
And if there is anything that I have learned from him, it is to never, 
never agree to turn our precious constitutional guarantees of liberty 
and justice over to any sort of world court by any name.
  With regard to this vague, open-ended concept that is a part of this 
bill, it is difficult to begin to point out all of its flaws and all of 
its problems, potential and otherwise. At the subcommittee hearing on 
May 12 of last year, the Hon. Edwin Williamson, the former legal 
adviser to the State Department, identified nine separate legal and 
practical issues which must be resolved before an international court 
could go forward.
  Every one of those nine major issues raised by Mr. Williamson, such 
as the methods of selecting judges and other personnel, contains 
separate sub-issues which are significant in their own right. In 
October 1993, after being pushed and pulled by several prominent 
Senators and urged enthusiastically to endorse the concept of a 
criminal court, the State Department legal adviser could only muster 
faint praise for the concept. You can almost see that club over his 
head when he did that.
  Speaking before the U.N. General Assembly's 6th committee regarding a 
68 article draft international criminal court statute, legal adviser 
Harper said--and these are his words:

       In general, although the underlying ideas must be 
     appropriately resolved, the concept of an international court 
     is an important one, and one in which we have a significant 
     and positive interest.

  What Mr. Harper went on to say in the most diplomatic terms was that 
this concept has such serious shortcomings. Mr. Harper stated strong 
reservations about the jurisdiction of the court, which is precisely 
what Sam Ervin stood here and said time and time again. Mr. Harper had 
great concern about the removal of national cases to the international 
forum. He expressed significant concerns over ``how an international 
jurisdiction would relate to existing status of forces argument 
prosecution of war crimes and other military matters.'' Those are his 
words. So what he was saying is that our basic national security and 
defense relationship may be in jeopardy, and who wants to take a chance 
on that? Last, but certainly not least, the Clinton administration's 
legal advisor stated:

       ``We note that the current draft's provision for immediate 
     arrest and surrender of an offender may be inconsistent with 
     requirements for a judicial hearing that are for the United 
     States, and likely other states as well, a matter of 
     constitutional dimension.''

  What an understatement. He is absolutely right. What does that 
statement, however, mean in the United Nations legalese? The answer is 
simple--that it is in our Constitution. There is even a real concern 
that the U.S. standards for due process are not met. So you are running 
into that brick wall up in New York.
  There are three major and immediate issues. Who would sit in 
judgment? Who? What constitutes an international crime? And then, of 
course, what constitutional questions are raised? Since there is not a 
formal proposal for a permanent international criminal court, we have 
to look at current practice and the various academic proposals.
  In his May 3 report to the Security Council on a proposed war crimes 
tribunal for Bosnia, the Secretary-General indicated that judges would 
come from member states of the U.N. and permanent observer missions. 
Well, just to begin with, every country on the United States' terrorism 
list would be eligible under that, including Iran, Iraq, Syria, Libya, 
Cuba, and North Korea. Every one of them is a member state of the 
United Nations. And based on what the Secretary-General said, they 
would be eligible to provide the judges to judge actions of the U.S. 
Government or U.S. citizens. I do not know about other Senators, but I 
am not willing to trust the sovereignty or the liberties of the 
American people to anybody from any of those countries.
  That very real possibility was confirmed to me by a leading academic 
proponent of an international criminal court, Professor Bassiouni of 
DePaul University. As the record will show, this past May 12, a 
subcommittee of the Foreign Relations Committee conducted a hearing on 
this question, and I asked the professor if judges from Communist 
China, Iran, Syria, or the PLO could sit in judgment of the United 
States Government, or one or more American citizens. In all honesty, he 
said, ``There is no guarantee'' that that will not happen. Of course, 
there is not. So what are we walking into?
  In a sense of the Senate, we either mean what we say or we ought not 
to toy around with things like that.
  Moving on to the question of what constitutes an international crime, 
the situation gets even muddier. We do not even know whether the 
subject matter jurisdiction of the court has been framed appropriately 
or what is meant by the words ``crimes under general international 
law.'' What are we to make of the meaning of the words ``colonialism'' 
or ``intervention,'' both of which are endorsed by the International 
Law Commission which is, of course, a U.N. agency?
  The State Department authorization bill before us contains, in 
section 702, explicit recognition that Tibet is not a part of China. 
This is the amendment of the distinguished Senator from New York, Mr. 
Moynihan, and I enthusiastically endorse it. But does that make both 
Pat Moynihan and Jesse Helms guilty of intervention? What about 
environmental crimes, as proposed by the leading academic on this 
subject, or insults to a foreign state? If that means Iraq or Libya, I 
plead guilty. They would haul me off in chains, I suppose, before some 
international tribunal, with somebody from Cuba and somebody from Red 
China and somebody from Libya, sitting in judgment on the rest of the 
world.
  Finally, and most importantly, there is the question of our--the 
United States of America's--guarantees. This is not the first time we 
have looked at this issue. In 1991, section 599(e) of the Foreign 
Operations Act, which is Public Law 101-513, directed the United States 
to ``explore the need for the establishment of an international 
criminal court report on the results of efforts to establish an 
international criminal court.''
  And in an October 28, 1991 letter to House Speaker Foley, Mr. L. 
Ralph Mecham, Director of the Administrative Office of the U.S. Courts, 
responded to the congressional reporting requirement. Mr. Mecham 
pointed out that trial by jury is fundamental to our system under 
article III of the U.S. Constitution. Yet, none of the draft statutes 
for an international criminal court provides for a jury trial in even 
the most serious crimes.
  Mr. Mecham also points to a question of a speedy trial, and the 
concept of the international criminal court is in direct conflict with 
the most basic constitutional rights guaranteed by the U.S. 
Constitution to all American citizens.
  So, Madam President, do you see, as they say in North Carolina, why I 
am so ``het up'' about this matter? Sam Ervin taught me to become 
heated about it. He is gone, but I told him in one of the last 
conversations I had that I would stand against this as long as I had 
breath. And I am going to do it. The Senate may vote in opposition to 
my position, but the Senate I believe will rue the day that the Senate 
takes that action.
  But the problem does not end with conflicts with the most basic 
constitutional rights of American citizens. One of the international 
crimes being discussed in the literature--now get this--is 
dissemination of false or distorted news. I could just see the rolling 
paddy wagons up to the Washington Post, New York Times, CBS, NBC, and 
taking all the reporters out. I can think of several media sources that 
could not pass the most liberal interpretation of that little standard.
  So, in summary, I guess it is safe to say that it is my view that the 
very concept of an international criminal court is fatally flawed.
  First and foremost, this scheme is a constitutionally impermissible 
assault on the basic liberties enjoyed up to now by the American 
people.
  Second, as I have already noted, there is nothing to prevent people 
representing terrorist countries or representatives of terrorist 
organizations from sitting in judgment against this country of ours and 
the American people.
  And, lastly, the list of international crimes being discussed is 
unconstitutionally vague and is absolutely wide open, inviting abuse. 
We do not want that.
  This is not the vehicle to pronounce the fatal wounding of our basic 
constitutional guarantees. I would think the Judiciary Committee might 
want to review the constitutional impact of these efforts. I would hope 
the Senate would hear from the Judiciary Committee before acting. 
Senate Joint Resolution 32 is almost identical to the language found in 
section 170A of S. 1281. Yet, this independent legislation has not made 
its way to a hearing by, in and among the Judiciary Committee members.
  Nor has the Senate scheduled floor consideration of this legislation. 
Either the international criminal court does affect our constitutional 
guarantees and is deserving of a thorough review or it has little, if 
any, impact and is unnecessary of enactment.
  I urge my colleagues to support the amendment to strike this section 
from the bill.
  Madam President, I thank you for having recognized me, and I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Madam President, I rise in opposition to the amendment 
being offered by our distinguished colleague from North Carolina.
  Let me say at the very outset that this debate is really not about a 
specific treaty or agreement at all. As the Senator from North Carolina 
has very candidly said, he is opposed in concept to the notion of an 
international criminal court. So there is no configuration of any such 
court which he could ever accept.
  There are those of us who believe that the concept of an 
international criminal court makes sense, but we are very cautious to 
reserve any judgment on what that court may constitute until we are 
offered such a proposal. We have not been offered such a proposal.
  What we have before us today in this particular piece of legislation 
is the simple expression of a sense of this body that, conceptually, 
the idea of an international criminal court makes sense. We do not 
endorse any particular proposal for such a court but merely state our 
opinion that it ought to be pursued.
  I would like, if I could, just to state for my colleagues what the 
resolution says, and I am going to read the operative language of this 
provision in its entirety. It is very brief. But I think my colleagues 
ought to know what they are voting on here. I will read it verbatim:

       It is the sense of the Congress that: (1) the establishment 
     of an international criminal court with jurisdiction over 
     crimes of an international character would greatly strengthen 
     the international rule of law; (2) such a court would thereby 
     serve the interests of the United States and the 
     international community; and (3) the United States delegation 
     should make every effort to advance this proposal at the 
     United Nations.

  That is the entire sum and substance. If conceptually you align 
yourself with Senator Helms, the senior Senator from North Carolina, 
and conceptually the notion of any international court is abhorrent to 
you, then you ought to vote for the amendment of the Senator of North 
Carolina. If you believe that it is worthy to examine the issue of an 
international criminal court, then clearly his amendment ought to be 
rejected. I will lay out the arguments why I believe that is such.
  Madam President, one of the hallmarks of a civilized society is that 
it holds its citizens accountable for crimes against the public order. 
With the end of the Second World War and the success of the Nuremberg 
and Tokyo trials, many people in this country and elsewhere believed 
that this bedrock principle would soon hold true for the international 
community as well.
  I point out that my father, a former Member of this body, served as 
the executive trial counsel for the United States prosecution team at 
those Nuremberg trials. So I have more than just a passing familiarity 
with those tribunals and the important role they played in bringing to 
justice those people who were guilty of significant war crimes.
  It was possible to envision at the end of World War II a world in 
which the rule of law would be supreme, where international agreements 
would be reached by debate and consent, and where violators would be 
met by a swift and certain punishment.
  This vision was shaken by the onset of the cold war and the sudden 
emergence of a bipolar world. Today, from Angola to Iraq, from Haiti to 
the former Yugoslavia, despots and tyrants thumb their noses at the 
rule of law. It is not that the international community is unable to 
agree on what defines a crime, or even, in most cases, who is breaking 
the law. But the world still lacks a dependable and effective mechanism 
for bringing these individuals before the bar of justice.
  Today, just as we did after the Second World War, we stand at the 
beginning of a new era in history. We have an opportunity that comes 
along only once or twice in a century, a chance to shape a vision of 
the future that accords with our highest aspirations of freedom and 
human dignity. And the first of our many priorities should be to deal 
with those who would tarnish that future, who would subvert its promise 
for their own self-serving ends.
  It was in this spirit that 12 months ago I introduced Senate Joint 
Resolution 32, to put the Congress on record in support of the 
establishment of a permanent international criminal court. I introduced 
this legislation because I felt that if the new international order was 
to have any real meaning at all, it must include some provision for 
punishing or otherwise sanctioning those who failed to abide by its 
rules. The operative language of this legislation--and I have read it 
to my colleagues in this Chamber--is very clear. It does not bind us to 
any particular proposal. It merely says, do you think this is worth 
doing? Do you see it as being in the interest of the United States, 
which has had a longstanding commitment to the rule of law, to try to 
adopt those basic principles on an international level?
  I believe it does. The legislation, I would point out, also requires 
that the administration submit to Congress a detailed report ``on 
developments relating to, and United States efforts in support of, the 
establishment of an international criminal court with jurisdiction over 
crimes of an international character.''
  Well, obviously, there is no list of crimes before us yet. There is 
no proposed jurisdiction. The suggestions that Senator Helms, our 
colleague, makes are nothing more than that; merely suggestions. The 
crimes that some have advanced, many of them are absolutely ridiculous 
and should never be a part of any international criminal court. But 
that is all they have been, the ideas of some people.
  You are not voting on those crimes. You are not voting on that 
jurisdiction today. All you are being asked to do is accept or reject 
the concept, the idea, of an international criminal court. That is the 
issue before us; only the concept.
  Is it in our interest to advance that idea or should this body, the 
U.S. Senate, go on record today saying never, ever, ever; that, in 
concept, fundamentally the notion of an international criminal court is 
abhorrent to this body and we will prevent any idea like that from ever 
being adopted? That is the issue and only that issue.
  I think this body believes that international criminal courts makes 
sense. Here we are in the midst of this debate advancing the idea of an 
ad hoc tribunal on Bosnia. We all watch, every night, the television 
screen and we see the covers of our newspapers and magazines. It is 
abhorrent to us that innocent civilians are being gunned down by the 
ruthless terrorists of the Serbians and others. We are incensed by it. 
And so we support an international criminal court on an ad hoc basis to 
deal with it. What I am suggesting is, does it not make some sense to 
maybe deal with this in a more substantive way rather than on an ad hoc 
basis?
  Madam President, I was greatly pleased at the level of support this 
measure has received from our colleagues. I would note the presence on 
the floor of my colleague from Pennsylvania, Senator Specter, who has 
been at this as long as I have; in fact, longer. And while we discussed 
the various ideas and concepts, he testified before our committee on 
May 12, along with other witnesses, about this general concept and 
general idea.
  This legislation was also cosponsored by the distinguished majority 
leader, Senator Mitchell; the chairman of the Foreign Relations 
Committee, Senator Pell; Senator Kerry, my colleague from 
Massachusetts, who is managing this legislation; Senator Kennedy; 
Senator Moseley-Braun; Senator Reid; Senator Boxer, the Presiding 
Officer today; and Senator Feingold.
  Last year, Madam President, S.J. Res. 32 was given thorough 
consideration by the Committee on Foreign Relations. A hearing on the 
legislation was held, as I said, on May 12, in which the committee took 
testimony from witnesses in support of and opposed to the concept. The 
legislation was marked up by the committee and passed on a vote of 11 
to 7, and was later accompanied, Madam President, by a 236-page report 
that we have prepared on this concept. I would invite my colleagues' 
attention to that. In this report we provide all the pros and cons and 
the arguments and the history. It is a significant and very thorough 
examination of this issue. We have not treated it lightly at all.
  Finally, Madam President, the language in S.J. Res. 32 was debated 
once more in the Subcommittee on International Operations on June 29 
when the subcommittee voted to add it as an amendment to the State 
Department authorization bill. That is the language we are considering 
today.
  Madam President, let me turn to a discussion of some concrete 
examples which, in my view, demonstrate the need for an international 
criminal court.
  Perhaps the most obvious example is in the area of war crimes and 
crimes against humanity. As my colleagues know, it took a great deal of 
time and effort to establish the ad hoc tribunal for the former 
Yugoslavia. As a result, valuable time was lost in the gathering of 
evidence and in the preparation of cases. Had a standing tribunal 
already been in place, the chances of a successful prosecution would no 
doubt have been greatly increased.
  Make no mistake about it, Madam President, there will be more 
Yugoslavias, and there will be other atrocities committed in the 
future. It is happening right now in Haiti, in Angola, in Burundi, just 
to name a few. If we should decide in the future to call these 
individuals to account for their crimes, logic only dictates that we 
will need the services of a permanent international criminal tribunal.
  Even in cases where we are unable to get our hands on the alleged 
criminal, an international criminal court would provide us with a forum 
to at least secure an indictment, perhaps even a conviction in 
absentia, to forever brand that individual a criminal in the eyes of 
the world. Most importantly, Madam President, since the court would 
operate on the basis of established and agreed-upon procedures, no one 
could argue that a prosecution was being carried out for political 
purposes, or that it represented a victor's vengeance.
  Another area in which an international criminal court would prove 
useful, in my view, is in the fight against drug trafficking and 
terrorism. One might consider, for instance, the difficulty we often 
have in prosecuting drug lords from certain countries in Latin America 
and the Caribbean.
  In a sense, these nations are in a double bind: On the one hand, they 
often find it difficult to bring cases against the suspected drug lords 
themselves because of violence directed against the judicial system in 
their own country. On the other hand, they find it impossible to 
extradite them to the United States because of political resentment 
back at home. An international criminal court, if properly structured, 
could provide an important third option.
  As for terrorism, it is often said that one man's terrorist is 
another man's freedom fighter. And yet the international community has 
managed to come to an agreement on a certain array of crimes that are 
clearly unacceptable no matter what the context, such as the taking of 
hostages, the hijacking of a civilian airliner, or attacks on diplomats 
and other internationally protected persons. In these cases, an 
international criminal court could play an important and useful role.
  One notable recent example is the 1985 terrorist attack on the 
Achille Lauro, which resulted in the tragic death of an American 
citizen, Leon Klinghoffer. Egypt captured the suspects in this case, 
but then, bowing to domestic political pressure, put them on a plane to 
Tunis to be tried before the Palestine Liberation Organization. The 
United States intercepted the jet and diverted it to Italy, but Italy 
refused to turn over the suspects. Italy then let the mastermind of the 
attack go free for alleged lack of evidence and convicted several other 
persons for sentences ranging from 6 months to 30 years.
  When all was said and done, the United States was angry at Italy for 
what it viewed as insignificant sentences for the terrorists, Egypt was 
angry at the United States for intercepting its airline, and the United 
States was angry at Egypt for not prosecuting the suspects in the first 
place. All in all, the interests of everyone involved would have been 
better served by recourse to a neutral tribunal.
  Finally, Madam President, there are a host of other circumstances in 
which, for practical reasons, an international criminal court might 
facilitate the prosecution of alleged offenders. These would include 
cases where evidence is located in two or more countries; where there 
is a disagreement between nations over the appropriate punishment to be 
meted out, such as the death penalty; where victims are found in two or 
more nations; and where no extradition treaty exists between the 
requesting country and the country with possession of the alleged 
offender.
  Madam President, in the time I have remaining, I would like to 
briefly give my colleagues some sense of the growing measure of support 
for this proposal, both here at home and throughout the international 
community.
  Here in the United States, the issue of an international criminal 
court has gained the attention of the American Bar Association, which 
endorsed the concept at its 1992 annual meeting. The ABA has also 
appointed a blue ribbon task force, led by former Attorney General 
Benjamin R. Civiletti, to examine a number of questions surrounding the 
proposal.
  I might point out our colleague from North Carolina has raised some 
of these questions. He asked exactly the right questions, in my view. 
But to be opposed in concept fundamentally before even examining those 
issues, I think is where he is making his mistake.
  The final report, I would point out, from the ABA task force was 
completed on January 11 of this year, and it contains a number of 
recommendations as to the proposed court's jurisdiction and scope.
  In addition, the concept was also endorsed by the majority of the 
members of the U.S. Commission on Improving the Effectiveness of the 
United Nations, a bipartisan task force that reported to the Congress 
in September 1993.
  At the United Nations, the U.N.'s International Law Commission has 
been examining the issue of the international criminal court for the 
past 4 years. Last year, in its most visible sign of progress yet, the 
ILC put forth a 67-article draft statute for such a court. While 
elements of that statute have been criticized by some, most observers 
agree that the draft statute represented an important step forward in 
the deliberations at the United Nations. This past November, the 
General Assembly voted to request the ILC to complete its work on the 
draft statute at its 1994 session.
  Among member states at the United Nations, support for an 
International Criminal Court is also growing. United States allies and 
other international partners that have indicated their support for the 
concept in recent debate at the United Nations include Germany, Russia, 
Canada, Spain, Poland, Hungary, Nicaragua, Mexico, and Australia, among 
many others.
  Finally, as for the United States, the administration's official 
position is also evolving. In 1992, at the United Nations, the Bush 
administration sent State Department legal adviser Edwin D. Williamson 
to the United Nations to argue that a delay in the consideration of the 
proposal would be acceptable, and to say only that the United States 
was not necessarily opposed to the concept. Last year, under the 
Clinton administration, legal adviser Conrad K. Harper told the United 
Nations that ``My Government has decided to take a fresh look at the 
establishment of such a court.''
  In fact, Mr. President, the Clinton administration is indeed taking a 
fresh look at this issue, and it is my strong hope that it will 
conclude that this is a concept to which it can lend its clear 
endorsement. The legislation that we are considering today is merely 
intended to encourage the administration in that direction.
  Mr. President, I ask unanimous consent to have printed at this point 
in the Record an assortment of items that lend support to the concept 
of the International Criminal Court. These include the following: 
newspaper editorials in support of the International Criminal Court 
from the New York Times and the Hartford Courant; an excerpt from the 
final report of the ABA Task Force on an International Criminal Court; 
an excerpt from the final report of the United States Commission on 
Improving the Effectiveness of the United Nations, and a list of the 
Commission members; the statement delivered by State Department legal 
adviser Conrad K. Harper at the United Nations last fall; excerpts from 
statements made last year before the Foreign Relations Committee by 
Secretary of State Warren Christopher and U.N. Ambassador Madeleine 
Albright on this subject; and a copy of a recent article by Benjamin 
Ferencz, a former chief prosecutor at Nuremberg, calling for the 
establishment of a permanent court.
  In addition, Mr. President, I would also like to include at this 
point several other letters that I have received from members of the 
academic community that indicate their support for the concept of the 
International Criminal Court. Several of these scholars took the 
opportunity to offer comments on certain portions of the ILC's draft 
statute and I would ask unanimous consent that these be made a part of 
the record as well.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, July 6, 1993]

                   A Court for International Outlaws

       How to deal with a person like Gen. Mohammed Farah Aidid, 
     the Somali, warlord who orders attacks on United Nations 
     peacekeepers and uses women and children as shields for the 
     killers?
       Under whose jurisdiction could he be prosecuted? There is 
     no functional civil government in Somalia. Even if U.N. 
     soldiers could arrest him, what would they do with him after 
     that? Convene a war crimes tribunal, as is being done now to 
     try the ethnic cleansers in the Balkans? That idea summons up 
     the daunting prospect of establishing ad hoc tribunals in 
     every corner of the world where civil law breaks down.
       There is a better way: establish a permanent international 
     criminal court to try people who flout globally recognized 
     standards of behavior. The World Court in The Hague deals 
     with disputes between governments, but there is no comparable 
     body to judge individuals.
       The need is obvious. In Colombia, leaders of the big drug 
     cartels are so powerful that they can order the murder of 
     judges, jury members, journalists and government officials 
     who try to thwart them. The crimes committed by terrorists, 
     hijackers and smugglers of drugs, wildlife and other 
     contraband know no national boundaries. And in small 
     conflicts all over the world (East Timor, for example), 
     people get away with murder because there's no way to bring 
     them to justice.
       In January Senator Christoper Dodd, Democrat of 
     Connecticut, introduced a joint resolution in Congress 
     calling for the United States to support United Nations 
     efforts to establish such a court. Last fall the U.N. 
     Security Council unanimously requested that the International 
     Law Commission start to draw up the terms of such an 
     agreement.
       There are obvious problems. What crimes should be covered, 
     and who would decide whom to prosecute? What if Saddam 
     Hussein tried to have George Bush arrested? How should the 
     requirements of different legal traditions be reconciled? 
     What rules of evidence would be used?
       Some countries would see an international court as a threat 
     to their sovereignty. One way to get around this would be to 
     require an accused person's country to consent to 
     prosecution. But that would present its own problems. Would 
     Libya really surrender the suspected Pan Am bombers to such a 
     court? Colombia's powerful drug lords have already forced 
     their Government to abandon its extradition treaty with the 
     United States; they would surely try to make life miserable 
     for a government that consented to hand them over to an 
     international court.
       These problems are real but surmountable. The U.N. is 
     already developing a powerful precedent as it sets up the 
     terms for the war crimes tribunal for the former Yugoslavia. 
     Another possible formula would be to limit the court's 
     jurisdiction to crimes, like slave trafficking and hijacking, 
     already covered by international conventions.
       The Bush Administration's attitude toward such a court was 
     to list the inherent problems and wait until somebody else 
     ironed them out. The Clinton Administration has yet to take a 
     position. Mr. Clinton could give the international court a 
     significant nudge by throwing his weight behind the effort.
       Unfortunately, there will always be outlaws like General 
     Aidid. The international community will continue to suffer as 
     long as there is no way to bring them to justice.
                                  ____


               [From the Hartford Courant, Feb. 6, 1993]

                    Time for an International Court

       If the authorities in Colombia ever recapture Pablo 
     Escobar, they'll be faced with a conundrum. The leader of the 
     Medellin cocaine cartel, Mr. Escobar is so powerful and so 
     ruthless that any judge, any juror, any policeman who came 
     into contact with him would be in danger of assassination. 
     His organization has casually executed journalists, judges, 
     politicians, even innocent tourists, to strike fear in its 
     opponents. The message is clear: Try to stop us and we will 
     kill you.
       In such an atmosphere, bringing these murderers to justice 
     is almost impossible. The only alternative--extraditing drug 
     lords to the United States, where they are also wanted--
     chafes at national pride and has become too risky for 
     political leaders.
       Sen. Christopher J. Dodd of Connecticut has introduced a 
     joint resolution that points toward a possible solution to 
     the problem of prosecuting international criminals such as 
     Mr. Escobar. Mr. Dodd has called for creation of an 
     international criminal court to try individuals who violate 
     an agreed-upon set of standards.
       The need for such a court is obvious. Each week news 
     stories reveal the limitations of law enforcement. As the 
     world shrinks, international crime increases. How to bring to 
     justice the pirates who prey on refugees on the high seas in 
     southeast Asia? The poachers of endangered species? Those who 
     flout environmental regulations and cause large-scale damage 
     to the earth? People who kidnap young girls to sell as wives 
     to wealthy men in other countries? Military commanders in the 
     Balkans who encourage rape and genocide?
       In introducing the resolution, Mr. Dodd rightly harked back 
     to the Nuremberg trials, which set a precedent for 
     international scrutiny of crimes that went far beyond 
     violating the laws of an individual nation. He quoted former 
     Secretary of State Lawrence Eagleburger's vow to bring the 
     ethnic cleansers in the former Yugoslav republics to justice, 
     promising a ``second Nuremberg.''
       The notion has been around for a while. In 1991, the United 
     Nations International Law Commission adopted a draft code of 
     international crimes. Under the Bush administration, U.S. 
     support for the notion was lukewarm.
       Last year, after some pressure from other countries, the 
     United States relaxed its stance and the U.N. General 
     Assembly granted permission to begin work on drafting a 
     statute to set up an international court.
       The United States has been reluctant in the past to support 
     such a move out of fear that U.S. citizens might be brought 
     before an international court. That is, indeed, a 
     possibility. As Americans, we should not fear it--any more 
     than we fear the rule of law in our own communities.
       Mr. Dodd's resolution deserves the support of Congress, and 
     of the Clinton administration.
                                  ____


  [The views expressed herein have not been approved by the House of 
  Delegates or the Board of Governors of the American Bar Association 
and, accordingly, should not be construed as representing the policy of 
                     the American Bar Association.]

 American Bar Association Task Force on an International Criminal Court


                              final report

       At the Annual Meeting of the American Bar Association, on 
     August 11-12, 1992, the House of Delegates adopted the 
     following recommendation, submitted by the ABA Task Force on 
     an International Criminal Court and by the New York State Bar 
     Association:


                             recommendation

       Be it Resolved, that the American Bar Association 
     recommends that the U.S. Government work toward finding 
     solutions to the numerous important legal and practical 
     issues identified in the accompanying reports of the Task 
     Force on an International Criminal Court and the New York 
     State Bar Association, with a view toward the establishment 
     of an international criminal court, considering the following 
     principles and issues:
       A. Jurisdiction of the court shall be concurrent with that 
     of member states. It may cover a range of well established 
     international crimes, but member states shall be free to 
     choose by filing a declaration of the crimes they shall 
     recognize as within the court's jurisdiction.
       B. No person shall be tried before the court unless 
     jurisdiction has been conferred upon the court by the state 
     or states of which he is a national and by the state or 
     states in which the crime is alleged to have been committed.
       C. The fundamental rights of an accused shall be protected 
     by appropriate provisions in the court's constituent 
     instruments and in its rules of evidence and criminal 
     procedure.
       D. The obligations of states under the court's constituent 
     instruments shall be enforced by sanctions.
       The report submitted with the recommendation by the Task 
     Force on an International Criminal Court identified and 
     discussed a number of legal and practical issues regarding 
     the establishment of an international criminal court. 
     Admittedly, however, the report was unable to explore all of 
     these issues in a thorough fashion, and it was understood at 
     the time of adoption of the recommendation that the Task 
     Force would continue its work in an effort to examine those 
     issues it previously had given little consideration to, such 
     as, for example, proceedings at trial. There was also general 
     agreement that the Task Force would benefit from the addition 
     of several new members.
       Accordingly, at its meeting in September 1992, the ABA 
     Board of Governors approved the Annual Plan of the Task Force 
     and authorized the Task Force to accept external funding for 
     the purpose of continuing its operations during the 1992-1993 
     ABA Year. The new President of the ABA, Michael McWilliams, 
     appointed seven new members of the Task Force. These new 
     members are, in alphabetical order: Michael Abbell, Craig 
     Baab, Eric L. Chase, William M. Hannay, Louis B. Sohn and 
     Rebecca J. Westerfield.
       The composition of the reconstituted Task Force, then, is 
     as follows. The chairperson is Benjamin R. Civiletti. The 
     other members of the Task Force are, in alphabetical order, 
     Michael Abbell, Donald B. Ayer, Craig Baab, Eric L. Chase, 
     Stuart H. Deming, Edward S.G. Dennis, Jr., Helen M. 
     Eversberg, Robert B. Fiske, Jr., William M. Hannay, Jerome J. 
     Shestack, Louis B. Sohn, Melvyn Tanenbaum, Michael E. Tigar, 
     Rebecca J. Westerfield, and Bruce Zagaris.
       Professor John F. Murphy continues as reporter for the Task 
     Force.
       After being reconstituted, the Task Force divided into 
     working groups on the following topics: (1) Jurisdiction, 
     Applicable Law, and Sentences, chaired by Professor Louis B. 
     Sohn; (2) Structure, Process, Procedure, and Rules, chaired 
     by Judge Melvyn Tanenbaum; and (3) Investigation, Charging, 
     Prosecution, and Incarceration, chaired by Michael Abbell. 
     These working groups exchanged views by letter and telephone 
     and also commented on discussion papers prepared by the 
     reporter.
       The reconstituted Task Force as a whole held two meetings. 
     In addition to general discussion members of the Task Force 
     commented on drafts of this report by the reporter.
       The Task Force also benefitted from the participation in 
     its meetings of Bruce C. Rashkow, Assistant Legal Adviser for 
     United Nations Affairs, and Michael P. Scharf, then Attorney/
     Adviser, Office of the Legal Adviser, U.S. Department of 
     State, now Assistant Professor of Law, New England School of 
     Law. Ms. Jamison Borek, Deputy Legal Adviser, provided 
     helpful comments on a draft of this report, and the Office of 
     the Legal Adviser also kindly supplied the Task Force with 
     various documents relevant to an international criminal 
     court.
       A special note of thanks and appreciation is due Alaire 
     Bretz Rieffel, staff liaison for the Task Force and Director, 
     ABA Section of International Law and Practice. Ms. Rieffel's 
     cheerful and efficient handling of numerous administrative 
     details associated with this project has been of great 
     assistance to the Task Force.
       The expanded size of the Task Force has increased the 
     already substantial diversity of views represented on it. 
     Accordingly, it proved impossible to achieve agreement on all 
     the propositions set forth in this report. To the extent 
     possible, where there has been a sharp disagreement of view, 
     this has been noted in the report. Every effort has been made 
     to give a fair hearing to the full range of opinions. 
     Association with the report as a member of the Task Force 
     does not necessarily signify complete agreement in every 
     particular, but rather general agreement with the report's 
     substance.
       This report should be read as a supplement to, as well as 
     an updating and expansion of, the Task Force's report that 
     accompanied the recommendation adopted by the House of 
     Delegates in August 1992. In order to assist the reader in 
     this endeavor a copy of the Task Force's first report has 
     been attached to this report as Appendix A.
       As a supplement to the first report this report does not 
     reexamine the arguments for and against an international 
     criminal court. Also, as we shall see, these arguments have 
     largely been overtaken by recent developments. Rather, the 
     report begins with a brief examination of major developments 
     since the date of the first report. Next the report turns to 
     the issue of the court's subject matter and personal 
     jurisdiction and the law it should apply. The report then 
     explores, in separate sections, the nature and structure of 
     the court; its pre-trial and trial procedures; and the 
     enforcement of sanctions against persons convicted of crimes 
     within the court's jurisdiction.
                                  ____


    [Final Report of the United States Commission on Improving the 
                  Effectiveness of the United Nations]

          Defining Purpose: The U.N. and the Health of Nations


                      international criminal court

       In view of the transnational nature of modern criminal 
     conduct and the increasing interdependency of nations, the 
     Commission recommends creation of an International Criminal 
     Court (ICC) to hold accountable criminals who violate 
     specific international conventions. For any just 
     international order to become a reality, it must address 
     international and transnational criminality and demand the 
     cooperation of states to redress such crime. The system 
     proposed here, however, should be viewed not as a substitute 
     for but a complement to national criminal systems and other 
     modalities of bilateral and multilateral cooperation in penal 
     matters.
       Various arguments have been raised against an ICC. Some 
     critics contend that it would hinder efforts to strengthen 
     existing extradition procedures, because countries would be 
     reluctant to allow extradition of suspected criminals to a 
     foreign country when they could be turned over to the ICC for 
     prosecution. The same argument, however, is also a persuasive 
     reason for the ICC.
       Another argument is that a permanent ICC would become 
     politicized and lose its effectiveness. This danger exists in 
     any U.N. agency, but can be minimized by the way the court is 
     established and the procedures under which it operates. Still 
     another concern is that, given the diversity of nations and 
     legal systems in the world, it will be difficult, perhaps 
     impossible, to create a code of international laws, form a 
     court and establish rules of jurisdiction and procedure to 
     which all members will agree.
       There will undoubtedly be problems in the creation and 
     implementation of a permanent International Criminal Court, 
     but the Commission believes that the potential benefits 
     outweigh the arguments against it. Successful prosecutions in 
     such a court would not only result in punishment for the 
     perpetrators, but would help deter behavior repulsive to the 
     international community.
       A permanent International Criminal Court should be created 
     through a multilateral treaty to be written and ratified 
     under U.N. auspices. Its jurisdiction would proceed along two 
     tracks. On the first track, the Court would deal with 
     ``international crimes,'' the most serious of which are the 
     product of state action or state policy, affect the peace and 
     security of humankind or are particularly offensive to basic 
     human values. These crimes are: Aggressive war, war crimes, 
     unlawful use of weapons, crimes against humanity, genocide, 
     apartheid, torture, unlawful human experimentation, slavery 
     and slave related practices.
       On the second track, the Court would consider 
     ``international delicts''--international misdemeanors that 
     offend human values but are not usually the product of state 
     action or policy and do not threaten the general peace and 
     security. They include: Piracy, aircraft hijacking and other 
     threats to international air safety, threat and use of force 
     against internationally protected persons, threats and 
     attacks upon international maritime navigation, the taking of 
     civilian hostages, drug offenses, destruction or theft of 
     national treasures, environmental damage, theft of nuclear 
     weapons and materials, and illegal forms of mercenarism.
       The Commission recommends that, initially, the Court have 
     concurrent jurisdiction with national courts. It would 
     present a neutral alternative forum for the prosecution of 
     individuals accused of committing international crimes. Many 
     countries would be more likely to relinquish the prosecution 
     of an individual in their possession to an international body 
     than to a sovereign state. Some countries may also be more 
     willing to let the Court prosecute a suspected criminal than 
     to try him in their own courts.
       There is considerable sentiment among U.N. members that 
     violations of humanitarian law, like war crimes, if not 
     prosecuted before national courts, should be tried before ad 
     hoc tribunals established by the Security Council rather than 
     a standing ICC. This is chiefly because the violations may be 
     the result of orders from the highest levels of government 
     and bringing the perpetrators to trial may require the 
     enforcement powers of the Security Council.
       This is the course taken by the Security Council for 
     dealing with crimes in what used to be Yugoslavia. The 
     jurisdiction of the special tribunal being established is 
     limited to ``serious violations of international humanitarian 
     law committed in the territory of the former Yugoslavia 
     between 1 January 1991 and a date to be determined.'' 
     Specifically, the crimes covered by the court's statute 
     include ``grave breaches of the Geneva Convention of 1949,'' 
     ``violations of the laws or customs of war,'' ``genocide'' 
     and ``crimes against humanity.''
       The Commission recognizes the arguments for ad hoc 
     tribunals, but believes that a permanent court is preferable, 
     because it would avoid the politicized process of 
     establishing an ad hoc tribunal for every criminal violation 
     of this kind.
                                  ____


[Statement by Hon. Conrad K. Harper, Legal Adviser, U.S. Department of 
State and U.S. Representative to the 6th Committee 48th Session of the 
            United Nations General Assembly, Oct. 26, 1993]

Agenda Item 143: Report of the International Law Commission on the Work 
        of Its Forty-fifth Session International Criminal Court

       Madam Chairman, as this is my first time addressing the 
     Committee, I wish to express my appreciation for the work of 
     the Committee and its officers. I am very pleased to be here 
     for the discussion of the work of the International Law 
     Commission (``ILC''), which is one of the most important 
     elements of the annual deliberations of the Committee.
       My delegation commends the ILC for the valuable work it has 
     done in many fields, including its expeditious work on the 
     vital topic before us today. My delegation also wishes to 
     note with appreciation the excellent work done by the ILC's 
     working group. The working group's strong efforts have 
     produced a thoughtful and serious work product that deserves 
     attention by members states.
       I am pleased to provide comments for my Government on the 
     question of the establishment of a permanent international 
     criminal court, and in particular the proposed statute 
     contained in the report of the International Law Commission 
     (A/48/10) and prepared by the ILC's working group over the 
     past year.
       My Government is firmly committed to the fight against 
     transnational crime in all its forms. We have taken an active 
     role in all fora where proposals for international 
     cooperation in this area are debated and implemented. In 
     addition, we actively pursue bilateral and multilateral 
     relationships that underlie cooperation in the criminal 
     justice field, and have entered into numerous extradition 
     treaties as well as treaties on mutual legal assistance in 
     criminal matters. We have placed considerable emphasis on 
     international efforts to curtail drug trafficking, money 
     laundering, organized crime, and terrorism.
       Last May, the Security Council created an Ad Hoc Tribunal 
     to address serious violations of international humanitarian 
     law in the former Yugoslavia. My Government is a major 
     proponent of this effort to ensure that those who have 
     committed such crimes are held personally responsible. This 
     Tribunal for Yugoslavia establishes a new and largely 
     untested mechanism--one that has gained wide-ranging support 
     in part because it was carefully tailored to meet the needs 
     of a specific situation. The same level of care must be taken 
     with other new mechanisms in the criminal justice field.
       It is in this context of multilateral and bilateral 
     cooperation that this Committee considers the question of an 
     international criminal court. My Government has decided to 
     take a fresh look at the establishment of such a court. We 
     recognize that in certain instances egregious violations of 
     international law may go unpunished because of a lack of an 
     effective national forum for prosecution. We also recognize 
     that, although there are certain advantages to the 
     establishment of ad hoc tribunals, this process is time 
     consuming and may thus diminish the ability to act promptly 
     in investigating and prosecuting such offenses. In general, 
     although the underlying issues must be appropriately 
     resolved, the concept of an international criminal court 
     is an important one, and one in which we have a 
     significant and positive interest. This is a serious and 
     important effort which should be continued, and we intend 
     to be actively and constructively involved.
       Madam Chairman, my Government continues to study the 
     concept of an international criminal court and the ILC 
     working group's proposal. While some of the issues are very 
     difficult and the review is not complete, we do have a number 
     of comments on aspects of the draft at this stage. 
     Ultimately, no proposal can gain the support of governments 
     if certain key issues are not satisfactorily resolved. I 
     believe that many member states may share our concerns, and 
     will agree that careful study is required.
       Careful consideration needs to be given, for example, to 
     whether the subject matter jurisdiction of the court has been 
     framed appropriately. We are not yet convinced that the 
     general category of ``crime[s] under general international 
     law'' is sufficiently well-defined or accepted by the world 
     community that it could at this stage, form a basis for 
     jurisdiction of the criminal court. We will also need to 
     consider, for example, whether drug crimes and crimes by 
     terrorists are better handled by an international court than 
     by national courts. We will want to ensure that cases which 
     can be properly and adequately handled in national courts are 
     not removed unnecessarily to the international court. We also 
     have a concern over how international jurisdiction would 
     relate to existing status of forces agreements, the 
     prosecution of war crimes, and other military matters.
       We also note that, under the current proposal, many states 
     which have a definite interest in a particular case have no 
     role in deciding whether the international criminal court or 
     national courts handle that case. Thus the state or states 
     where the crime took place, where the victims reside and the 
     state of nationality of the accused person might none of them 
     consent to a given prosecution, yet it might proceed. At this 
     point, we do not suggest that all states with any of these 
     various interests in a case must give consent, or otherwise 
     accept the jurisdiction of the court over the particular 
     crime, before a prosecution with proceed. Nonetheless, and in 
     view of the fact that there would always be the possibility 
     of cases initiated by the Security Council, we believe that 
     further review of this issue is warranted.
       We also believe that there is a need to think through how 
     the international criminal court will affect existing 
     extradition relationships, whether according to treaty or 
     other legal mechanisms. The United States has, as we have 
     pointed out, put considerable energy into entering into 
     bilateral extradition treaties with numerous governments. The 
     arrangements for the proposed court should be in addition to, 
     and not frustrate the purposes of, those treaty 
     relationships. Thus, we should consider whether a request for 
     surrender of an accused person to the international criminal 
     court should really take precedence over a proper request for 
     extradition under an extradition treaty, or whether the court 
     should function more as a mechanism to be used when national 
     courts are unable or unwilling to act.
       In this connection, we note that the current draft's 
     provision for immediate arrest and surrender of an offender 
     may be inconsistent with requirements for a judicial hearing 
     that are for the United States, and likely for other states 
     as well, a matter of constitutional dimension.
       We will also want to ensure that the treaty is consistent 
     with international standards for due process and human 
     rights. The ILC working group has certainly taken these 
     concerns into account to a considerable extent. At the same 
     time, others may have further contributions to make on this 
     subject. We note, for example, that the current draft does 
     not make provision for a true ``appeal'' to a separate group 
     of appellate judges. The War Crimes Tribunal for Yugoslavia, 
     on the other hand, includes this very important feature. More 
     generally, given the extent to which the court's rules will 
     give definition to the principles of due process and human 
     rights, consideration should be given to drafting those rules 
     in conjunction with the statute.
       Cognizant of the budgetary pressures on the United Nations 
     and other organizations, we believe that an international 
     criminal court will need to have an acceptable mechanism for 
     budgetary and administrative oversight.
       Madam Chairman, we believe that it is critical for the 
     success of this endeavor that the court have the full support 
     of the world community. Any other course would run the danger 
     of undercutting cooperation in international criminal 
     matters. For this reason, it is essential that the 
     fundamental issues relating to such a court be satisfactorily 
     resolved.
       Our review is continuing, and this is not a complete list 
     of our concerns. Nonetheless, we wanted member states to have 
     the benefit of our views. I wish to emphasize that my 
     Government is ready to work energetically with the members of 
     this Committee to examine the issues related to establishing 
     an international criminal court, and to work together to 
     resolve the relevant issues and concerns.
                                  ____


            Establishment of an International Criminal Court

[Statement of Secretary of State Warren Christopher at a hearing before 
  the Foreign Relations Committee, January 13, 1993, an response to a 
                       question by Senator Dodd]

       On the establishment of an international criminal court: 
     ``I think that it's a good time now, with the leadership at 
     the UN which is I think prepared to think new thoughts and 
     develop new ideas, to see if we can't find some permanent 
     mechanism rather than having to set up an ad hoc mechanism 
     each time.''

[Statement of UN Ambassador Madeleine Albright at a hearing before the 
    Foreign Relations Committee, January 21, 1993, in response to a 
                       question by Senator Dodd]

       ``As far as I'm concerned there is [nothing] more important 
     than really strengthening the international rule of law, and 
     establishing a tribunal, which you discussed, which Secretary 
     Christopher also said. I think that part of the problem we 
     have now is that such a place does not exist. We have a hard 
     time trying to sort out where we would bring the war crimes--
     where we would present them--and therefore, creating this 
     organization is very, very important.''
                                  ____


                [From Constitution magazine, Fall 1993]

                Needed: An International Criminal Court

                        (By Benjamin B. Ferencz)

       After the genocide and inhumanity of World War II, the 
     United States took the lead in drawing the charter for the 
     International Military Tribunal at Nuremberg. The Nuremberg 
     principles, which provided the legal basis of the tribunal, 
     were affirmed by the United Nations in 1946 and made clear 
     that aggressive war and crimes against humanity would no 
     longer be tolerated.
       In opening the Nuremberg tribunal, Justice Robert Jackson, 
     on leave from the U.S. Supreme Court to serve as chief 
     prosecutor for the United States, heralded the rule of law. 
     ``That four great nations,'' he said, ``flushed with victory 
     and stung with injury stay the hand of vengeance and 
     voluntarily submit their captive enemies to the judgment of 
     the law is one of the most significant tributes that Power 
     ever has paid to Reason. . . . We must never forget that the 
     record on which we judge these defendants today is the record 
     on which history will judge us tomorrow.''
       Yet, since Nuremberg there has been no international 
     criminal court to call international criminals to account. 
     And the crimes continue.
       Iraq immediately comes to mind. The United Nations Security 
     Council, led by the United States, mobilized international 
     forces to repel aggression by Iraq against Kuwait. But 
     contrary to the Nuremberg doctrine that only the guilty 
     should be punished--after a fair trial and with evidence of 
     guilt beyond doubt--Iraq's civilian population has become the 
     main victim of both economic sanctions and missile attacks, 
     while its leader, allegedly responsible for every war crime 
     in the book, remains head of government. It is sadly ironic 
     that a great military victory won by brave young people 
     upholding American principles abroad should be followed by a 
     lack of legal courage on the part of political leaders back 
     home.
       But perhaps change is at hand. In the former Yugoslavia, 
     ``ethnic cleansing'' and mass rapes so outraged public 
     opinion that the Security Council ordered that evidence of 
     infringement of human rights in the Balkans be assembled. On 
     May 25, 1993, the council established an ``international 
     tribunal for the sole purpose of prosecuting persons 
     responsible for serious violations of international 
     humanitarian law committed in the territory of the former 
     Yugoslavia.'' While the ad hoc tribunal can deal only with 
     crimes committed after January 1, 1991, its creation may 
     be a stepping stone to a permanent court.
       Setting up such a court would involve limiting sovereign 
     rights in a way that would certainly be familiar to 
     Americans: just as the 13 Colonies found it necessary to cede 
     many sovereign rights to a central government in 1787, so the 
     violent and interdependent global community of today is 
     beginning to learn that real sovereignty belongs to the 
     people and that no one should be allowed to get away with 
     murder.
       Although the Constitution authorizes Congress to punish 
     ``offenses against the law of nations,'' the question of 
     indicting a sovereign before an international court did not 
     arise until after World War I. A 15-member Commission on 
     Responsibility of the Authors of the War, chaired by 
     secretary of State Robert Lansing, reached the conclusion 
     that violations of the ``laws and customs of war or the laws 
     of humanity'' were criminal offenses for which even a chief 
     of state could be punished. But almost immediately after 
     signing it, defeated Germany began to resist the Treaty of 
     Versailles on the grounds that it was a diktat that it had 
     been forced to accept. The Kaiser had already escaped to 
     neutral Holland, and Germany refused to hand over any of its 
     nationals for trial by an Allied court.
       In 1920 a Committee of Jurists appointed by the League of 
     Nations and dominated by Elihu Root, a former U.S. secretary 
     of both war and state and a senator from New York, proposed 
     that an international criminal court be established ``to try 
     crimes constituting a breach of international public order or 
     against the universal law of nations.'' The advice of these 
     expert jurists was politely brushed aside by professional 
     diplomats. Sovereign states were not ready to yield authority 
     to a permanent international tribunal, even after World War 
     II when the U.N. was founded.
       Although the United Nations charter requires that peace be 
     maintained ``in conformity was the principles of justice and 
     international law,'' the U.N. has no legislative authority, 
     its World Court lacks compulsory jurisdiction, and there is 
     no effective system to enforce world law. But the end of the 
     cold war has given us an opportunity to create a mechanism 
     that would allow the U.N. to begin to carry our its charter 
     goals. The absence of an international criminal court of law 
     to punish offenders mocks the victims of war and inhumanity 
     and encourages more criminality. All who imperil humanity 
     must know that they will be held to personal account, 
     regardless of rank, station or nationality. As Telford 
     Taylor, who served as U.S. chief of counsel at Nuremberg, has 
     written, ``The laws of war are not a one-away street.'' Law 
     poses no threat to the innocent. A permanent international 
     criminal court with worldwide jurisdiction would close a gap 
     that now exists in the world legal order; it is long overdue 
     and would uphold America's finest moral traditions in 
     protecting peace and human dignity.
                                  ____

                                                          Rutgers,


                                   School of Criminal Justice,

                                    Newark, NJ, September 9, 1993.
     Hon. Christopher J. Dodd,
     U.S. Senate, Washington, DC.
       Dear Senator Dodd: Thank you for your letter of August 30, 
     transmitting the report of the International Law Commission 
     (A/CN. 4.L 490) Add. 1, and inviting me to provide you with 
     my comments.
       As both an academician, who published the first American 
     coursebook on International Criminal Law (1965), and as a 
     practitioner in the field, as Director of the United Nations 
     Crime Prevention and Criminal Justice Branch (1974-1982), I 
     have been keenly interested in the creation of the 
     International Criminal Court and, from time to time, had 
     occasion to work with agencies responsible for the current 
     draft. It is a great relief that the I.L.C. has concluded its 
     work which, at times, it seem incapable or unwilling to 
     accomplish. Moreover, the Draft Statute looks very good 
     indeed. While here and there I would have structured it 
     somewhat differently, the draft is wholly acceptable to me.
       To any critic it should be pointed out that the most 
     crucial provision is Article 32, which creates the Indictment 
     Chamber (analogous to a Grand Jury), composed of the Bureau 
     of the Court. This is a vast improvement over other drafts, 
     which did not envisage an indictment chamber. Yet, such a 
     body is absolutely necessary since it establishes by a high 
     standard of proof (prima facie case) whether the case should 
     move to trial. This is a judicial determination of acts and 
     therefore differs vastly from a mere prosecutorial accusation 
     that may be regarded as politically motivated. The objective 
     affirmation of the indictment by the indictment chamber 
     warrants an arrest. Now, it is very likely that, for the time 
     being, the Court may not be able to obtain jurisdiction over 
     the person indicted, but indictment and warrant of arrest 
     serve as a powerful restraint on the accused who may not be 
     able to venture out into the world for fear of an arrest and 
     trial. Defendants may be able to hide from the reach of 
     international criminal justice for a while. Most can 
     ultimately be reached. True, some may never be brought before 
     the International Criminal Court--instead ultimately dying 
     the death of an indicted international criminal.
       In sum, the Draft Statute for an International Criminal 
     Court is solid and practical. It will derive to the benefit 
     of the World Community and of our country, which cannot solve 
     the problems of crimes against the peace and security of 
     mankind by itself.
       All good wishes for your important work in the Senate,
           Respectfully yours,

                                               G.O.W. Mueller,

                                     J.D., LL.M., Dr. jur. (h.c.),
                      Distinguished Professor of Criminal Justice.
                                  ____



                            University of Houston, Law Center,

                                   Houston, TX, November 15, 1993.
     Hon. Christopher J. Dodd,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Dodd: Thank you very much for your letter of 
     October 28th and the opportunity to comment on the U.N. Draft 
     Statute for an International Criminal Tribunal (19 July 
     1993).\1\
---------------------------------------------------------------------------
     \1\U.N. Doc. A/CN.4/L.490 (19 July 1993)
---------------------------------------------------------------------------
       First, I applaud the considerable efforts of the Working 
     Group and other members of the International Law Commission 
     and all those who made contributions to such efforts. The 
     Draft Statute is remarkable for its relatively lucid and 
     thorough consideration of the important issues to be 
     addressed before final adoption of a Statute for the 
     Tribunal. Already, it is remarkable as a working draft, 
     nearly complete in several respects.
       Second, with a few minor changes, I assume that this draft 
     will have the support of nearly all international law 
     professors in the United States. Here, I merely provide a set 
     of preliminary remarks that hopefully will be of use to those 
     involved in the creation of a final document and in United 
     States adherence to the final instrument. There are a few 
     changes that should be made in the interest of independence 
     of the Procuracy and the Court as well as in the overall 
     interest of the international community in effective 
     enforcement of international criminal laws. Once again there 
     is genocide in Europe, and it is especially appropriate to 
     keep the criminal events in the former Yugoslavia in mind as 
     we contemplate the fine-tuning of an instrument for the 
     creation of a permanent International Criminal Tribunal. In 
     particular, there is a difficulty with the present draft of 
     Article 24(b), as explained in comments that follow. 
     Similarly, no state should be allowed to control the ability 
     of the International Tribunal to prosecute on behalf of 
     humankind a crime under customary international law over 
     which there is universal jurisdiction, especially a crime 
     such as genocide which is not only prohibited under customary 
     international law (see U.N. Commentary, at p. 29, paras. (3)-
     (4)) but is also a prohibition under customary jus cogens 
     (and, thus, a peremptory prohibition--see, e.g., Restatement 
     (Third) of the Foreign Relations Law of the United States 
     Sec. 702(a) and Comments d and n (1987)).
       In the following paragraphs, I address particular articles 
     in the Draft Statute, identifying some concerns and needed 
     changes. With respect to Article 6, it is important that 
     judges and prosecutors have at least a working knowledge of 
     international law. It would be most useful for States to 
     allow private organizations concerned with international law, 
     such as the International Law Association or the American 
     Society of International Law to have input concerning state 
     nominations.
       With respect to Articles 9, 13(3) and 17(2)-(3), in my 
     opinion Judges and Prosecutors should be full-time so that no 
     conflict arises in terms of their prior employment or other 
     commitments. Judges should be available on short notice if 
     they are not sitting full-time. This also seems critical for 
     a full guarantee of the rights of the accused.
       Article 19 must be amended to assure that: ``(d) in no 
     event may the rules adopted deprive an accused or other 
     person of any of the human rights to due process addressed in 
     Article 44 or otherwise developed under customary 
     international law.'' The language here is merely suggested 
     language, but the point must be assured in order fully to 
     guarantee the rights of those suspect of having committed 
     crimes, the accused, and possibly other persons not yet 
     suspects or accused.
       With respect to Articles 30 and 44, the rights of witnesses 
     should also be assured--for example, rights related to those 
     of the accused in Article 44, paras. (f)-(g).
       Article 22 should be amended to cover the 1907 Hague 
     Convention No. IV (recognized as customary laws of war at 
     Nuremberg over which there is universal jurisdiction). This 
     is addressed somewhat in the U.N. Commentary at p. 29. Here, 
     I also agree with the U.N. Commentary at p. 23 concerning the 
     Convention against Torture and Other Cruel, Inhuman or 
     Degrading Treatment or Punishment and urge that this crime 
     also be listed. Additionally, there is a problem with respect 
     to some of the treaties listed in Article 22, in particular, 
     those listed in paras. (c)-(h). It is likely that these are 
     not yet customary international law (over which there is 
     universal jurisdiction) but merely binding among the treaty 
     signatories and their nationals (the so-called ``universal by 
     treaty'' circumstance allowing jurisdiction with respect to 
     signatory nationals). In view of this point, it may be 
     desirable to change Article 24(1)(a) by deleting ``under the 
     relevant treaty.'' It is, of course, true that a state does 
     not have jurisdiction under a relevant treaty or in any other 
     respect in connection with a non-customary offense allegedly 
     committed by a national of a state that is not a signatory to 
     such treaty, but the deletion would solve any ambiguity here. 
     Also, subparagraph (b) of Article 24(1) should be deleted. 
     Jurisdiction over genocide and related crimes exists with 
     every state since the prohibition of genocide and related 
     crimes, as defined by the Genocide Convention, has now 
     become customary jus cogens, as noted above. It is most 
     inappropriate, therefore, to limit submission under 
     Article 24 to those states that have ratified the 
     Convention (and whose ratifications are not void ab initio 
     as a matter of international law because their attempted 
     ratifications are fundamentally inconsistent with the 
     object and purpose of the Genocide Convention). Clearly, 
     other states can (by ``special acceptance'' under Article 
     26) submit such criminal accused even if they are not a 
     signatory (see, e.g., Article 26 (2) (a)), and a state's 
     acceptance of the jurisdiction of the Tribunal to address 
     such crimes can occur after the commission of such crimes 
     and not violate notions of ex post facto or nullum crimen 
     sine jus (since the crime already exists as such under 
     customary international law), but there should be no room 
     for escape of criminal liability for those reasonably 
     accused of having committed genocide or related crimes 
     against humanity.
       In my opinion, paragraph (2) of Article 24 should be 
     deleted. There should be no such veto power of a state if 
     other states have a competence to submit the case for 
     prosecution. With this sort of clause, it may become unclear 
     whether the U.N. Security Council has the power to order 
     ``extradition'' or ``surrender'' of such an accused under 
     Articles 39 and 103 of the Charter, as in the case of the 
     Lockerbie bombing. In this regard, what does ``on the 
     authority of the Security Council'' now mean under Article 
     25? Do Articles 24(2) and 25 reverse the decision of the 
     International Court of Justice?
       Article 27 provides a veto power in the Security Council 
     with respect to one crime--aggression. This is understandable 
     politically, but logically inconsistent with a notion of an 
     independent prosecutor and an independent court. Also, the 
     crime of aggression should not be limited to aggression by a 
     ``state,'' since civil-war belligerents can engage in 
     outlawed acts of aggression against other states and peoples. 
     Also inconsistent with the independence of prosecutors is the 
     ``review'' procedure in Article 30(1) (see U.N. Commentary, 
     2nd part, at p. 6).
       With respect to rights of suspects and those accused, 
     Article 30(4) needs supplementation in order to assure the 
     human rights of suspects of access to counsel, adequate time 
     and facilities to prepare, privacy during communications with 
     counsel, and to be questioned if the suspect wishes only with 
     counsel present. See, e.g., Paust, von Glahn & Woratsch, 
     Inquiry into the Israeli Military Court System in the 
     Occupied West Bank and Gaza (Report of the International 
     Commission of Jurists, Geneva 1989), reprinted in 14 Hastings 
     Int'l & Comp. L. Rev. 1 (1990), addressing also the U.N. 
     Supplemental Rules of Criminal Procedure of the U.N. Command 
     (Korea). In order to assure the accused minimum guarantees 
     under international law, a savings clause should be added to 
     Article 44 as new subparagraph (i): ``(i) any other minimum 
     guarantees under customary international law.'' First, these 
     minimum standards are not fully protected in the language 
     of Article 44. See also rights of the suspect addressed 
     above. Second, human rights to due process may develop 
     with the Ad Hoc Tribunal For Crimes Against Humanitarian 
     Law in the Former Yugoslavia and in other ways. Third, 
     when prosecuting violations of the Geneva Conventions, 
     there are circumstances when a signatory is bound to 
     accord an accused ``the same procedure as in the case of 
     members of the armed forces'' of such country. See, e.g., 
     Geneva Convention Relative to the Treatment of Prisoners 
     of War, arts. 1 and 102. Since all signatories to the 
     Geneva Conventions must ``respect and . . . ensure respect 
     for'' the Conventions ``in all circumstances'' (id., art. 
     1; see also id., art. 131), how can a signatory send an 
     accused to or participate in the prosecution of an accused 
     with lesser standards? Fourth, there may well be standards 
     of due process common to the legal systems of the world 
     that partake of the nature of general principles of law 
     and which might influence the interpretation of custom or 
     the interpretation of relevant international agreements. 
     The Court should have the express power to recognize other 
     standards of human rights law or general principles of 
     law, and the accused should have an express right to any 
     minimum guarantees under customary international law.
       Article 45 (1) and (2) should be changed to reflect the 
     fact that the 1966 Covenant on Civil and Political Rights, 
     and international law more generally, prohibits merely the 
     same ``offense'' being tried again, not ``acts constituting 
     crimes'' but the ``crimes'' themselves. This is particularly 
     so with respect to the fact that independent states are 
     independent sovereigns. The same is true in this country with 
     respect to federal and state crimes. Any ambiguity here can 
     be dealt with by simply deleting the phrase ``acts 
     constituting'' in each paragraph.
       Article 64(2) should be deleted. It is fundamentally 
     inconsistent with the principle of independence of the 
     prosecutor, the independence of the Court, and the principle 
     of state responsibility under customary international law 
     with respect to international crimes over which there is 
     universal jurisdiction and responsibility. See generally, 
     Paust, Universality and the Responsibility to Enforce 
     International Criminal Law: No U.S. Sanctuary for Alleged 
     Nazi War Criminals, 11 Houston J. Int'l L. 337 (1989). 
     Several times before the United Nations entities have 
     affirmed that a refusal to cooperate in the arrest, 
     extradition, trial and punishment of persons accused of such 
     crimes is contrary to the United Nations Charter ``and to 
     generally recognized norms of international law.'' It simply 
     cannot be appropriate that evidence tendered should be 
     subject to the control of the state submitting such evidence.
       Unlike prisoner-exchange agreements with respect to 
     ordinary foreign crimes, Article 66 seems to raise no 
     constitutional powers questions. The offenses are already 
     either treaty-based for the United States or part of 
     customary international law, both of which have 
     constitutional bases in Articles II, III and VI of the 
     United States Constitution as treaties or laws of the 
     United States. See, e.g., Restatement, supra, Sec. 111 and 
     Comments and Reporters' Notes thereto; Paust, Customary 
     International Law: Its Nature, Sources and Status as Law 
     of the United States, 12 Michigan J. Int'l L. 59, 77-90 
     (1990); cf. Paust, The Unconstitutional Detention of 
     Prisoner by the United States under the Exchange of 
     Prisoner Treaties, in International Aspects of Criminal 
     Law: Enforcing United States Law in the World Community 
     204 (Richard B. Lillich ed. 1981); Thomas M. Franck & 
     Michael J. Glennon, Foreign Relations and National 
     Security Law 312 (2 ed. 1993).
       Finally, I thank you once again for the opportunity to 
     participate in this historical effort to create a Tribunal so 
     necessary for the effective enforcement of international 
     criminal law.
       I will circulate this set of preliminary remarks to members 
     of the American Society of International Law's International 
     Criminal Law Interest Group for their comments. In this way, 
     perhaps we can provide further assistance at some time in the 
     near future. Of course, these comments are merely my own. 
     Also, I will send these to certain members of the executive 
     branch, the U.N. Secretariat, and others for comments.
       Until later,
           Warm regards,
                                                  Jordan J. Paust,
                                                 Professor of Law.
                                  ____



                                    New England School of Law,

                                   Boston, MA, September 25, 1993.
     Hon. Christopher J. Dodd,
     U.S. Senate, Washington, DC.
       Dear Senator Dodd: In response to your letter, dated August 
     30, 1993, I am pleased to provide the enclosed comments on 
     the International Law Commission's draft statute for an 
     international criminal court for your submission in the 
     Congressional Record.
       As you may know, from August 1989 to July 1993, I served as 
     the lawyer at the State Department with responsibility for 
     drafting the Department's reports to Congress and to the 
     United Nations on the issue of an international criminal 
     court, which expressed a degree of skepticism about the 
     feasibility and desirability establishing such a court. I 
     have been pleasantly surprised at how far the international 
     consideration of this issue has progressed since I wrote 
     ``The Jury is Still Out on the Need for an International 
     Criminal Court,'' Duke Journal of Comparative and 
     International Law 135-168 (1991). As detailed in the enclosed 
     comments, I believe the International Law Commission's draft, 
     with some relatively minor revisions, can serve as the basis 
     for negotiation of a statute for an international criminal 
     court which should meet the major concerns of the United 
     States and other countries.
       I applaud your efforts to persuade the Clinton 
     Administration to take the lead internationally in 
     establishing an international criminal court. I would be 
     happy to provide any further assistance to you in this 
     important endeavor.
           Sincerely,
                                                Michael P. Scharf,
                                       Assistant Professor of Law.
                                  ____


  Comments on the International Law Commission's Draft Statute for an 
                      International Criminal Court

                         (By Michael P. Scharf)


                            I. Introduction

       The recent establishment of the Yugoslavia War Crimes 
     Tribunal by the Security Council greatly enhances the 
     prospects for a permanent international criminal court (ICC). 
     Many of the complex legal and practical issues involved in 
     creating an ICC have now successfully been tackled in the 
     context of the Yugoslavia Tribunal. By borrowing liberally 
     from the Statute of the Yugoslavia Tribunal, the 
     International Law Commission (ILC) has come up with a draft 
     that provides a solid basis for negotiation of a statute for 
     an ICC that will be acceptable to a broad range of countries. 
     In particular, the draft's provisions for selecting judges, 
     commencing prosecutions, conducting trials, and enforcing 
     sentences are unlikely to engender much criticism. The 
     following comments focus exclusively on those areas in which 
     the draft should be revised to address the major concerns 
     that have been expressed in the past by the United States and 
     other countries.
       In its May 1993 report to the U.N. pursuant to G.A. 
     Resolution 47/33, the Clinton Administration stated ``we 
     believe the basic approach advocated in the ILC's 1992 Report 
     (i.e., that the court be a flexible and supplementary 
     facility for States parties to its statute and that the Court 
     not have compulsory or exclusive jurisdiction) strikes a 
     proper and realistic balance between the many competing 
     interests at stake.'' As envisioned by the ILC's 1992 report, 
     the ICC would merely provide States, in whose territory a 
     person accused of an international offense is located, with a 
     third option to prosection or extradition. See 1992 Report of 
     the ILC Working Group on the question of an International 
     Criminal Jurisdiction at 15. An important aspect of the ILC's 
     approach is the bifurcation between becoming party to the 
     ICC's statute and accepting the ICC's jurisdiction over 
     particular offenses. As described by the ILC's 1992 report, 
     Parties to the ICC's Statute would select from a list of 
     international offenses those offenses for which they would be 
     bound to hand over suspects and provide other assistance to 
     the Court. Id.
       The ILC's draft Statute has departed in several important 
     respects from this sensible approach, most notably with 
     respect to the obligations it imposes on States that are 
     Party to the Court's Statute but have not accepted the 
     Court's jurisdiction with respect to the type of offense 
     involved in a particular case. For example, under Article 
     33(2) of the draft Statute, such States are required to 
     ensure that the accused is arrested. Article 46 provides that 
     the Court has authority to ``require any person to give 
     evidence at trial,'' even if that person is a national of a 
     State that has not accepted the ICC's jurisdiction with 
     respect to the particular offense. The commentary to 
     Article 58 provides that Parties have a ``general 
     obligation to cooperate with and provide judicial 
     assistance'' to the Court, even in cases over which they 
     have not recognized the Court's jurisdiction. Article 45 
     requires Parties not to try the accused if he/she has been 
     acquitted or given a light sentence by the international 
     criminal court even for offenses over which the State has 
     not accepted the Court's jurisdiction. Article 63 provides 
     that Parties that have not accepted the Court's 
     jurisdiction over the type of offense at issue, must 
     prosecute the offender and forgoes the option of 
     extradition to a third State.
       The comments below describe problems with the current 
     wording of several of the provisions contained in the ILC's 
     draft Statute and propose revisions to bring the statute in 
     line with the ILC's original proposal for an international 
     criminal court and to meet the important concerns that have 
     been expressed by the United States and other countries.


                   ii. comments on specific articles

                               Article 2

       Article 2, which is in brackets to indicate that the ILC 
     seeks guidance on the issue from the General Assembly, 
     provides that the ICC shall either be a judicial organ of the 
     United Nations or that it be linked with the United Nations, 
     much in the same manner as the U.N.'s Specialized Agencies. 
     The latter approach is strongly preferable. It is not at all 
     clear that the General Assembly has the competence to create 
     an International Criminal Court without amendment to the U.N. 
     Charter and cooperation by States with the Court is more 
     likely if they became party by Treaty rather than by virtue 
     of their membership in the U.N.

                               Article 5

       Pursuant to Article 5, the ICC would have three organs: a 
     trial court, a registry (administrative office) and a 
     Procuracy (office of prosecutor). Although defendants would 
     have the right to court-appointed counsel (Article 44), as 
     drafted the Statute does not establish a separate office of 
     Defense Counsel. It is important that the ICC have an 
     independent office of Defense Counsel to ensure adequate 
     representation of the accused and promote institutional 
     balance. The Office of Defense Counsel could develop an 
     expertise similar to that of the Procuracy, and would also 
     enhance the adversarial nature of the Court. Both the 
     Procuracy and Office of Defense Counsel would be able to 
     monitor their counterpart's interaction with the Court and 
     further ensure that the proceedings will be impartial.
       In addition, in contrast to the Yugoslavia War Crimes 
     Tribunal, the ICC would not have a separate appellate 
     chamber, but rather appeals would be heard before a panel of 
     those trial court judges who did preside over the defendant's 
     trial (Articles 55 and 56). It is a fundamental principle of 
     U.S. jurisprudence that judges of the same rank should not 
     review each other's decision. This principle is also codified 
     in the Covenant on Civil and Political Rights, which provides 
     that ``everyone convicted of a crime shall have the right to 
     his conviction and sentence being reviewed by a higher 
     tribunal according to law.'' Consequently, the statute should 
     be revised to provide for the creation of a separate appeals 
     chamber in addition to a separate office of Defense Counsel.

                               Article 19

       Article 19 provides that the Judges of the ICC will 
     promulgate the Court's rules of Evidence and Procedure. The 
     United States and other countries have expressed the position 
     that the rules of procedure and evidence are critical to the 
     acceptability of an ICC. The Tribunal has broad discretion to 
     adopt Rules that, for example, do not fully protect the 
     rights of the accused. The Nuremberg and Tokyo Tribunals have 
     been subject to criticism for their use of ex parte 
     affidavits against the accused at trial. Unlike the situation 
     of the Yugoslavia War Crimes Tribunal whose jurisdiction is 
     restricted to offenses committed in the territory of the 
     former Yugoslavia since 1991, few States would agree to 
     become party to the ICC's statute or consent to the Court's 
     more sweeping jurisdiction without first agreeing to the 
     Rules of Procedure and Evidence. The Rules developed for the 
     Yugoslavia War Crimes Tribunal can, with minor modification, 
     serve as the basis for the rules for the ICC. These rules 
     should be enumerated in an instrument to be adopted at the 
     same time as the ICC's Statute.

                               Article 21

       Article 21 provides for a review conference to be held to 
     review the operation of the ICC's statute and to consider 
     possible additions to the list of crimes for which the ICC 
     has jurisdiction including ``in particular, the addition to 
     that list of the Code of Crimes against the Peace and 
     Security of Mankind.'' The Code of Crimes is like a bad penny 
     that continues to turn up in relation to the ICC. Many States 
     and commentators have strongly objected to the Code of 
     Crimes. As they have pointed out, the Code is redundant with 
     existing international conventions and would be disruptive of 
     these where it deviates from existing statements of the law. 
     Moreover, it fails to specify the state of mind necessary to 
     be charged with a criminal violation and neglects concepts of 
     due process basic to most countries' jurisprudence (e.g., 
     that offenses must be defined with precision sufficient to 
     inform people of what acts will be considered criminal). 
     Consequently, the reference to the Code of Crimes should 
     be removed from Article 21.

                               Article 22

       Article 22 contains a list of international offenses, 
     codified in Conventions containing the prosecute or extradite 
     requirement over which States can accept the ICC's 
     jurisdiction. The list is over-inclusive to the extent that 
     it includes the offense of ``apartheid,'' considering how far 
     South Africa has come in dismantling the vestiges of 
     apartheid. It is under-inclusive in that it does not include 
     torture as defined in the Torture Convention or major 
     narcotics crimes as defined in the Convention against Illicit 
     Traffic in Narcotic Drugs. The list should be revised 
     accordingly.

                               Article 24

       Article 24(1) provides that the ICC has jurisdiction over 
     an offense if the ICC's jurisdiction has been accepted by a 
     State with jurisdiction under the relevant treaty to try the 
     suspect before its own courts. Article 24(2) provides that if 
     the suspect is present in the State of his nationality or the 
     State where the offense was committed, such State must also 
     consent before the ICC can exercise jurisdiction. However, if 
     the suspect is in a State that is not the State of the 
     suspect's nationality or the State where the offense 
     occurred, the ICC need not obtain the State's consent to 
     issue an indictment and arrest warrant and take other steps 
     to bring the suspect to trial before the ICC (See Articles 
     30, 31, 32, and 33). This ambitious provision goes well 
     beyond the role contemplated for an ICC in the ILC's 1992 
     Report. The primary need for an ICC was to provide a third 
     alternative to States which, for a variety of reasons, find 
     it difficult to prosecute or extradite a suspect (See 1992 
     Report of the ILC Working Group on the question of an 
     International Criminal Court at pp. 11-12). Consistent with 
     this, the consent of the State in which the suspect is 
     located, whether or not it is also the State of the suspect's 
     nationality or the State where the offense occurred, should 
     be required.

                               Article 25

       Article 25, which provides the ICC with competence over 
     cases submitted by the Security Council is an important 
     provision. With the growing number of attacks against UN 
     Peace Keepers throughout the world (which constitute offenses 
     under the Internationally Protected Persons Convention), it 
     is likely that the Security Council will be a significant 
     source of the ICC's cases. As drafted, however, Article 25 
     unduly limits the power of the Security Counsel, acting under 
     Chapter VII of the Charter of the United Nations, to 
     prosecute such cases before the ICC. The Article should be 
     revised to explicitly exempt from Security Council 
     initiated cases the requirements of consent contained in 
     Article 24 as well as the ability of States that have not 
     accepted the ICC's jurisdiction over the act in question 
     to refuse to surrender suspects or provide judicial 
     assistance.

                               Article 26

       Article 26 gives the ICC jurisdiction over other crimes 
     ``under general international law'' and ``under national law 
     which give effect to provisions of a multilateral treaty,'' 
     provided the State on whose territory the suspect is present 
     and the State on whose territory the crime occurred give 
     their consent. This provision is the most problematic of 
     those contained in the draft Statute. It would give the ICC 
     jurisdiction over uncodified, open-ended offenses that are 
     not defined with sufficient specificity and precision to 
     inform people of what acts will be considered criminal. It 
     would also give the ICC jurisdiction over offenses listed in 
     regional conventions and international conventions that are 
     not widely adhered to on the basis of their objectionable 
     subject matter. This Article should be omitted altogether 
     from the Statute.

                               Article 27

       Article 27 provides that the ICC has jurisdiction over the 
     offense of aggression only if the Security Council has found 
     that the suspect's State has been guilty of aggression. The 
     term ``aggression'' is too political and ambiguous to be the 
     basis of individual criminal liability. The history of the 
     General Assembly's 1974 definition of aggression (G.A. Res. 
     3314, 29 GAOR Supp. 31 (A/9631) at 142) shows that it was 
     intended only as a political guide and not a binding criminal 
     definition. Together with Article 26, this Article should be 
     omitted from the Statute.

                               Article 33

       Article 33(2) requires States Party to the ICC's statute 
     that have not accepted the Court's jurisdiction with respect 
     to the offense in question nevertheless to serve the 
     indictment on the accused and ensure that the accused is 
     arrested or detained. States that have not accepted the ICC's 
     jurisdiction with respect to the offense in question should 
     be under no further obligation to cooperate with the ICC than 
     States that are not party to the ICC's Statute.

                               Article 44

       The commentary to Article 44 requests the General Assembly 
     to provide guidance to the ILC on the question of in absentia 
     trials. In accordance with the Covenant on Civil and 
     Political Rights, there should be no in absentia trials. 
     However, consistent with U.S. case law, the situation in 
     which the accused has been present at trial but escapes 
     before the trial is completed should be understood not to 
     be an in absentia trial.

                               Article 45

       Article 45 obligates all Parties to the ICC's statute not 
     to try a person for an offense for which that person has been 
     tried before the ICC. This double jeopardy rule should not 
     apply to States that have not accepted the jurisdiction of 
     the ICC with respect to the offense in question.

                               Article 48

       Article 48 authorizes the ICC to require any person to give 
     evidence at trial. The Article should be revised to clarify 
     that the ICC cannot compel the appearance of nationals of a 
     State that has not accepted the jurisdiction of the ICC with 
     respect to the offense in question.

                             Articles 55-57

       Articles 55 and 56 envision an appeal before the trial 
     judges that did not preside over the defendant's trial. As 
     discussed above, this would not be consistent with an 
     important principle of U.S. jurisprudence which calls for the 
     establishment of separate trial and appellate courts.
       In addition, Article 55 provides (in brackets) that the 
     Prosecutor may appeal the Court's judgment of acquittal by 
     asserting commission of errors of fact that have ``occasioned 
     a miscarriage of justice.'' Similarly, bracketed language in 
     Article 57 would allow the Prosecutor to apply for a review 
     of judgment if they discover a new fact, not known at the 
     time of trial, ``which could have been a decisive factor in 
     reaching the decision.'' In either case, an appeal by the 
     Prosecutor, resulting in a reversal of the judgment of the 
     Trial Court, would necessitate a new trial for the same 
     offense, thus violating the prohibition against double 
     jeopardy as it is understood in the United States. Thus, the 
     language of these articles should be amended to permit only 
     the person convicted by the Trial Court to request an appeal 
     after final judgment or a review proceeding. However, either 
     the defendant or the Prosecutor should be permitted to seek 
     interlocutory appeals of issues of law.

                               Article 58

       As drafted, under Article 58, the only difference in the 
     obligation of a Party that has not accepted the ICC's 
     jurisdiction with respect to the offense in question and a 
     Party that has done so is that the former is under a general 
     requirement to provide judicial assistance to the ICC where 
     as the latter is required to respond without undue delay to a 
     request for assistance by the ICC. This Article should be 
     revised to indicate that Parties that have not accepted the 
     ICC's jurisdiction may, but are not required to, render 
     judicial assistance.

                               Article 63

       Article 63 provides that a Party should give priority to 
     the ICC's request for the surrender of the accused over 
     requests for extradition from other States. If the object is 
     to ensure that the accused is prosecuted and to give States a 
     third alternative to extradition and domestic prosecution, 
     there is no good reason why a Party should not be able to 
     choose instead to extradite the accused to a third State. 
     There is no question that when it is available, national 
     prosecution is inherently more effective than prosecution 
     before an international body.


                            III. Conclusion

       While the ILC has made a good start, it is important that 
     the statute be revised as indicated above (1) to confine the 
     Court's jurisdiction to the offenses defined in widely 
     ratified multilateral conventions; (2) to provide for a 
     separate office of Defense Counsel and a separate appellate 
     chamber; (3) to ensure that the rules of evidence and 
     procedure are adopted together with the ICC's Statute rather 
     than promulgated afterwards by the ICC's judges; (4) to make 
     clear that State Parties that have not accepted the 
     jurisdiction of the ICC over a particular offense are not 
     required to provide assistance to the Court with respect to 
     that offense, are not prohibited from extraditing such 
     offenders to a third State for prosecution, and are not 
     prohibited from later prosecuting such offenders if the ICC 
     acquits them or gives them lenient sentences; and (5) to 
     clarify that the Statute's requirements for State consent do 
     not apply to cases submitted by the Security Council acting 
     under Chapter VII of the U.N. Charter.

  Mr. DODD. Madam President, in my closing minutes, I want to make one 
comment in response to some of the arguments that have been made by 
those who oppose this measure. There have been questions raised about 
the particular operation of this Court--the crimes it would cover, the 
manner in which judges would be chosen, the protections available for 
the accused. Quite frankly, Mr. President, these questions put the cart 
before the horse. They are legitimate questions, but that is not the 
issue before us.
  I remind my colleagues that we are not voting on a resolution of 
ratification, nor are we being asked to endorse any one proposal over 
another. Those questions will not be with us for several years, perhaps 
more. All we are being asked to do today is to lend our support to the 
basic proposition, affirmed at Nuremberg half a century ago, that when 
people commit crimes against the international order, they should 
expect to be brought to justice. Surely we can muster the courage, 
after all we have learned, to stand up for that basic principle.
  I will not repeat the arguments I have made in support of the 
International Criminal Court or attempt to summarize them here. But I 
do want to emphasize one very important point.
  Our moment in history is before us. With the end of the cold war we 
have been given a gift that previous generations could only have 
dreamed of: the opportunity to leave our indelible mark on the future 
itself. But as we take stock of this moment and all that it entails, I 
hope we will not forget a certain lesson from the past.
  In his closing statement before the Nuremberg Tribunal, Justice 
Robert Jackson of the U.S. prosecution summarized the long list of 
crimes the Nazis had been accused of, and the evidence against them. He 
then turned his attention to the responsibility that rested upon the 
judges on the tribunal. Their decision, he said, was not simply a 
judgment on the guilt or innocence of the particular individuals 
involved. In truth, he said, it was a judgment on the Holocaust itself.
  Justice Jackson's statement reminds us why it is that we must bring 
international criminals before the bar of justice, if not to undo the 
wrong, at least to restore our confidence in what is decent and what is 
just. He closed his argument with these words:

       It is against this background that these defendants now ask 
     this tribunal to say that they are not guilty of planning, 
     executing, or conspiring to commit this long list of crimes 
     and wrongs. They stand before the record of this trial as 
     blood-stained Gloucester stood by the body of his slain king. 
     He begged of the widow, as they beg of you: ``Say I slew them 
     not.'' And the Queen replied, ``Then say they were not slain. 
     But dead they are * * *''
       If you were to say of these men that they are not guilty, 
     it would be as true to say that there has been no war, there 
     are no slain, there has been no crime.

  Madam President, I urge the defeat of the Helms amendment. And I 
remind our colleagues that this is our moment to fulfill the legacy of 
Nuremberg and establish, in our generation, an international criminal 
court so the thugs in Bosnia and Haiti and other places around the 
globe can be brought before the bar of justice. It would be a tragedy 
indeed, a tragedy indeed, if this august body on this day would turn 
its back on that very basic concept.
  I urge again the rejection of the Helms amendment.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Madam President, I thank the Senator from Connecticut for 
his eloquent statement. He has passionately pursued this particular 
issue through the committee itself, which put this language in the bill 
that the Senator from North Carolina now seeks to strike.
  I will not go over all of the areas, by any means. I know the Senator 
from Pennsylvania wants to speak momentarily on this. But I would like 
to call to the attention of my colleagues the de minimus aspects of the 
language that is in here, measured against the very significant and, I 
think, compelling rationale that has been laid out by the Senator from 
Connecticut.
  What needs to be underscored here is, first, this is a sense-of-the-
Senate resolution. It does not mandate or bind us to anything.
  Second, I ask colleagues to measure what sense of the Senate it 
expresses. I read directly from the language. ``The sense of Congress 
that the establishment of an international criminal court with 
jurisdiction over crimes of an international character would greatly 
strengthen the international rule of law,'' something for years that we 
have worked to uphold and to strengthen.
  No. 2: ``Such a Court would thereby serve the interests of the United 
States and the world community.''
  No. 3: ``The United States delegation should make every effort to 
advance this proposal of the United Nations.'' That is all. It simply 
asks for the advancement of the proposal.
  The Senator from North Carolina has asked good questions. Those are 
precisely the kinds of questions that we ought to be getting the 
answers to in the advancement process. Those are precisely the kinds of 
questions that we ought to be asking when and if we are told that those 
who are negotiating this have in fact come up with a concept. Those are 
the kinds of questions that we ourselves ought to be asking as 
observers to the United Nations, as the oversight committee, as we go 
through the process of trying to put together this court.
  But to suggest that you should not even go through that exploratory 
process, that you should just automatically shut your eyes, turn your 
back and shut down the exploratory process to negate the compelling 
rationale for being able to find some mechanism that adequately 
addresses our interests to deal with these questions of international 
jurisdiction, of terrorism, of hijacking, of narcotics trafficking--we 
should not turn our backs on the effort to put that together.
  So I would suggest that there really should not be an enormous 
engagement, there should not be a big argument here. This is a sense-
of-the-Senate resolution saying that what we tried to do for years, 
what this Nation led and stood behind at Nuremberg, and other efforts, 
should not be just wiped away in its incipient exploratory stages 
because we have some fears about it. We ought to explore those fears, 
we ought to find out if they are justified, we ought to find out if 
there is a sufficient mechanism that we could put together that would 
address those fears, indeed eliminate them altogether.
  So I think the Senator from Connecticut has made all the compelling 
rationale about why we ought to consider this. I simply think Senators 
ought to focus on the de minimis aspect of this sense-of-the-Senate 
language in terms of what it might do that is negative, balanced 
against the extraordinary positive benefits of what it would do were we 
to find a sufficient mechanism for implementing it.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER (Mr. Kerrey). The Senator from Pennsylvania.
  Mr. SPECTER. I thank the Chair. Mr. President, I believe that the 
pending provision in the legislation to encourage the adoption of an 
international criminal court is an important step moving the United 
States forward in supporting this concept and in trying to bring this 
idea into reality. I have long been interested in the concept of an 
international criminal court, as I have watched a number of major 
international crimes go unprosecuted because of nationalism which has 
prevented international criminals from being turned over to the United 
States or to other countries where prosecutions would be obtained.
  The case in the mid-eighties of Abu Abbas, an international terrorist 
on the Achille Lauro, is illustrative and has been referred to in part 
by the distinguished Senator from Connecticut. Abu Abbas was a 
coconspirator in the hijacking of the Achille Lauro. He was on an 
Egyptian airliner headed for an Arab country, but the plane was forced 
down in Italy. There was practically a shootout between Italian 
authorities and U.S. authorities, because the Italian authorities 
refused to turn over Abu Abbas to the United States where we had the 
jurisdiction to prosecute him.
  He was then turned over by the Italian authorities to Yugoslavia. 
Ultimately, he was not brought to prosecution until he was tried and 
convicted in absentia in an Italian court and I believe received a 
sentence of some 30 years.
  When a congressional delegation visited Italy in 1986, the members of 
the delegation confronted Prime Minister Craxi on the Abu Abbas case. 
In a rather embarrassed way, he said that Italian authorities simply 
could not do anything about it because of international pressure.
  Later, a congressional delegation visited President Mesic in 
Yugoslavia. President Mesic of Yugoslavia said the Abu Abbas case was a 
hot potato that had been thrust in Yugoslavia's hands and Yugoslavia 
let Abu Abbas go. It seems to me had there been an international 
tribunal to take jurisdiction over Abu Abbas that Egypt might well have 
turned Abu Abbas over to such an international tribunal, or Italy might 
have done so, or Yugoslavia might have done so where they felt 
constrained not to turn over an international criminal to the United 
States because of nationalistic feelings in those countries.
  There was a similar experience with an international drug dealer 
named Mata in Honduras. He was turned over to the United States and 
there was a virtual rebellion outside the American Embassy.
  We now have a situation where the United States has  indicted two 
Libyans for the destruction of Pan Am 103. As we speak, that matter is 
still a controversy, because the Libyan Government refuses to turn over 
those two men under indictment to either the United States or to a 
Scottish court for trial. If there were an international criminal 
court, that might be a jurisdiction suitable for such a trial.

  The United States has taken strong measures in the course of the past 
decade to assert our own extraterritorial jurisdiction, which means 
that we have asserted our authority to try in the United States 
individuals who commit crimes against American citizens outside of the 
United States. Jurisdiction ordinarily turns on the situs of an 
offense. If someone is charged with committing a crime in the District 
of Columbia, that person can only be tried here and not in 
Pennsylvania.
  On the international level ordinarily the situs of the crime would 
determine that it would be triable by the authorities there, but we 
know that terrorism is not a crime which a country like Egypt would 
prosecute, or even a country like Italy would prosecute, or Yugoslavia, 
as illustrated by the Abu Abbas case. Therefore, the United States, in 
the Omnibus Crime Control Act of 1984, asserted U.S. jurisdiction over 
hijacking and hostage taking involving our citizens. In a 1986 statute, 
the offense of assaulting, maiming, or murdering a U.S. citizen 
anywhere in the world was passed into law by the United States, from a 
bill which I introduced.
  In looking at the difficulties of prosecuting international 
terrorists and also the difficulties of getting extradition from 
Colombia and other Latin American countries on drug dealers, it seemed 
to me that the idea of an international criminal court ought to be 
pursued. As early as March 13, 1986, I asked then-Secretary of State 
George Shultz about an international criminal court in the view of the 
State Department. Then-Secretary of State Shultz responded as follows:

       We need to be working on the web of law that can operate 
     here and in conjunction with others around the world to say 
     to terrorists that they have no place to hide and are going 
     to be prosecuted.

  On June 25 of that year, 1986, I offered an amendment, No. 2187, to 
explore the possibility of an international criminal court. That 
amendment was agreed to. So the language of the current bill is by no 
means novel. On August 27, 1986, Public Law 99-399 provided for the 
exploration by the President of the possibility of establishing an 
international tribunal for prosecuting terrorists.
  In 1988, under the provisions of the Omnibus Anti-Drug Abuse Act, 
there was a provision which I introduced calling on the President to 
pursue negotiations to establish an international criminal court for 
international drug trafficking.
  The issue was presented in hearings of the Foreign Operations 
Subcommittee on a question which I asked then Secretary of State James 
Baker on March 15, 1989, and the essence of Secretary of State Baker's 
testimony was that the concept of an international criminal court was 
worth pursuing.
  There have been quite a number of circumstances which I will not 
extensively detail at the moment, but in the Foreign Operations 
appropriations bill passed by the Congress and signed into law by the 
President in 1990, there was a provision for the exploration by the 
President of the creation of an international criminal court which was 
signed into law in the 101st Congress as Public Law 101-513.
  We also took up the question of an international criminal court as it 
related to the trial of war criminals in the gulf war, and that also 
was passed.
  So there is very substantial history of the Congress being on record 
as favoring the concept of the International Criminal Court.
  With respect to the war crimes tribunal that has already been 
established by the United Nations for the former Yugoslavia, the 
Congress enacted and it was signed into law as part of the conference 
report on the foreign aid bill last year a provision to make a 
contribution--and this is in the report--of some $3 million to help the 
war crimes tribunal for the former Yugoslavia to become operational to 
gather evidence there.
  As we speak, the atrocities in former Yugoslavia are rampant, and 
current news reports are full of proposals and disagreements as to what 
action ought to be taken to try to stop the atrocities, or try to do 
something about them. Ground military action has been pretty much ruled 
out. There has been some authorization for air strikes.
  It has been very regrettable that the international community has not 
acted there in terms of some forceful action to stop those atrocities.
  One line of activity which has been acted upon is the creation of the 
war crimes tribunal. Judges have been appointed, and there is now a 
great deal to be done in terms of gathering evidence and bringing the 
war criminals to justice. But that again is a reaffirmation of the 
policy of the United States adopted by the Congress that the 
international rule of law is very important.
  This is a subject where many of us in this body who are lawyers and 
have been prosecuting attorneys--and I have had experience along that 
line being the district attorney of Philadelphia and having been an 
assistant DA--have great regard for the deterrent effect of 
prosecutions, providing we mean business, and we have yet to show that 
we mean business on the war crimes tribunal in the former Yugoslavia as 
the world community did mean business with the Nuremberg trials after 
World War II.
  When our distinguished colleague from North Carolina raises 
considerations about sovereignty and about the liberty of the American 
people and about the composition of the Court and about the guarantees 
of jury trial and the guarantees of speedy trial, those are all issues 
which need to be taken up in due course and to be very carefully 
considered. But the scope of what is before the Senate at this moment 
is important to focus on, and that is an effort by the distinguished 
Senator from North Carolina to strike the sense of the Senate which 
says that there should be the establishment of an international 
criminal court with jurisdiction over crimes of an international 
character. It states further that such a court would serve the 
interests of the United States and the world community.
  The specific offenses over which the Court would have jurisdiction 
will have to be very carefully defined.
  It has been said, with merit, that one person's freedom fighter is 
another man's terrorist. So that we have to focus on crimes which are 
agreed upon by the world community as being international crimes. There 
is no doubt that hijacking is such a crime. There is no doubt that 
hostage taking is such a crime. There is no doubt that international 
drug sales constitute such criminal conduct. But simply stated, the 
issue which is now pending before the Senate, and which has been acted 
upon by the Senate on many occasions in the past, is to support the 
concept of an international criminal court. It has been supported by 
President Reagan, by President Bush, and it is currently supported by 
President Clinton.
  This is not an enormous step. Frankly, I would like to see the 
Congress doing a great deal more to accelerate the process to bring the 
rule of law to bear on international crimes. But it is a step forward, 
and I think it would be very unfortunate if any significant sentiment 
were expressed by the Senate today to reject this sense of the Congress 
that an international criminal court ought to be established.
  I thank the Chair and yield the floor.
  Mr. KERRY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KERRY. Mr. President, I thank the Senator from Pennsylvania for 
his thoughtful comments and I think it has helped shed considerable 
light on what is at stake here.
  I do not believe there is anybody further seeking debate on this 
particular amendment. Therefore, Mr. President, I would move to table 
the amendment of the Senator from North Carolina.
  Mr. SPECTER. Mr. President, I wonder if the distinguished Senator 
will hold off on that until Senator Helms returns to the floor because 
he may want to make subsequent arguments.
  Mr. KERRY. I will be delighted. The Senator indicated to me he did 
not have anything further to say. I would be happy to do so if he did.
  Mr. PRESSLER. May I place a statement in the Record from Senator 
Orrin G. Hatch on the establishment of a permanent international 
criminal court; and I would especially cite the second and third 
paragraph of his statement, if I may do so. He says:

       This resolution differs from the Senate's present position 
     on this issue which has been to encourage the executive 
     branch to ``explore the need for the establishment'' of an 
     international court. I do not quarrel with continuing to 
     explore and discuss the creation of such a court. However, 
     this resolution throws circumspection aside and proclaims 
     Congress' support for an international court before major 
     issues are resolved and instructs the executive branch to 
     work toward the court's establishment.

  These are Senator Hatch's words:

       The Bush administration extensively studied the 
     establishment of such a court and expressed a strong concern 
     that the court could turn into a politicized body which might 
     develop unacceptable definitions and interpretations of 
     crimes which could result in a release of criminals who might 
     otherwise be prosecuted here in the United States. 
     Furthermore, when the ABA studied the establishment of such a 
     court in 1992, it recognized that more study was needed. The 
     United States Judicial Conference refused to reach any 
     conclusion regarding the feasibility of such a court in the 
     absence of concrete proposals and further studies.

  Mr. President, I ask unanimous consent to place Senator Hatch's 
statement in the Record.
  There being no objection, at the request of Senator Pressler, the 
statement of Senator Hatch was ordered to be printed at this point in 
the Record:
 Mr. HATCH. Mr. President, I am concerned with this bill's 
provision that expresses the sense of the Congress that the United 
Nations should establish a permanent international criminal court. The 
measure urges the administration to make every effort to advance this 
proposal at the United Nations. The measure is virtually identical to a 
freestanding resolution introduced by Senator Dodd.
  This resolution differs from the Senate's present position on this 
issue which has been to encourage the executive branch to explore the 
need for the establishment of an international court. (Public Law 101-
513). I do not quarrel with continuing to explore and discuss the 
creation of such a Court. However, this resolution throws 
circumspection aside and proclaims Congress' support for an 
International Court before major issues are resolved and instructs the 
executive branch to work toward the Court's establishment.
  The Bush administration extensively studied the establishment of such 
a court and expressed a strong concern that the Court could turn into a 
politicized body which might develop unacceptable definitions and 
interpretations of crimes which could result in the release of 
criminals who might otherwise be prosecuted here in the United States. 
Furthermore, when the ABA studied the establishment of such a court in 
1992, it recognized that more study was needed. The United States 
Judicial Conference refused to reach any conclusion regarding the 
feasibility of such a Court in the absence of concrete proposals and 
further study.
  There is little doubt that international courts have, on occasion, 
provided the international community with a valuable means to carry out 
justice. The war crimes trials in the aftermath of World War II at 
Nuremberg and Tokyo are fine examples of the effective administration 
of justice of which these tribunals are capable. I fully support, as a 
moral and legal matter, the prosecution and punishment of war 
criminals, terrorists, and those guilty of genocide. Yet, we must 
examine whether the rule of law is best served by channeling the 
administration of this justice through a permanent international 
criminal court, which this resolution champions, or whether domestic 
courts and ad hoc tribunals are preferable.
  Today, there are calls for the international community to hold 
accountable those responsible for alleged war crimes and other 
atrocities in the former Yugoslavia. Perhaps establishment of an ad hoc 
tribunal is warranted. The success of the Nuremberg Courts serves as 
evidence of how a special court can be established to handle these 
matters.
  Nevertheless, I am not convinced that the case has been made that a 
permanent international court is warranted or appropriate. Important 
issues need to be resolved before the Senate supports the establishment 
of such a court. Consensus needs to be reached on numerous issues such 
as: the scope of the Court's jurisdiction; the Court's composition; 
what rules of evidence will be used; the penalties available to such a 
court; and who would fund this massive new bureaucracy.
  To elaborate, there is no guarantee that representatives from such 
nations as Syria or North Korea would be precluded from serving on such 
a court. Further, we need to resolve what acts constitute international 
crimes. The resolution before the Senate refers to war crimes, 
genocide, and terrorism. While we certainly abhor and condemn such 
acts, what is the Senate to make of the resolution's additional 
reference to other crimes of an international character? This 
resolution does nothing to prevent the U.S. delegation from advocating 
the addition of environmental offenses to the list of international 
crimes. Nor does it ensure that the United Nations will not make 
imperialism or colonialism a crime of international character.
  Mr. President, can anyone assure the Senate that such a court would 
adhere to our constitutional standards? According to the Administrative 
Office of the U.S. Courts, draft proposals for such a court fail to 
provide the right to a jury trial and lack other fundamental 
protections for the accused.
  In closing, the fundamental issue before the Senate is whether the 
Senate is prepared to subject the American people to the prosecutorial 
arm of a court run by the United Nations. Is the Senate prepared to 
allow American citizens to be held in judgment for environmental crimes 
or for imperialist offenses by so-called judges from dictatorial 
nations which hurl anti-U.S. declarations on a seemingly daily basis? 
Additionally, is the United States prepared to waive its sovereign 
authority to prosecute terrorists who commit crimes against American 
citizens in favor of a permanent body that may not be as diligent or 
that may be subject to political influence. The answer to all of the 
questions should be a resounding, ``No.'' The Senate should reject this 
resolution. It is premature and imprudent.
  For these reasons, I urge my colleagues to support the Helms 
amendment.
  Mr. PRESSLER. Mr. President, I say for my myself, whether or not one 
supports the concept of an international criminal court, it is not 
appropriate to offer a blanket endorsement from Congress at this time.
  There is currently a draft statute for an international criminal 
court before the U.N. Sixth Committee. This draft statute was put forth 
this summer by the International Law Commission. Numerous issues of 
concern to the United States remain.
  Because the United States has remaining concerns over the scope, 
jurisdiction, system for appointment of judges, and other issues 
associated with the establishment of a permanent international criminal 
court, a blanket endorsement from Congress would be counterproductive 
to the U.S. negotiating position.
  Furthermore, the United States is already actively working with the 
members of the Sixth Committee of the United Nations in examining the 
issues relating to the establish of an international criminal court. 
Therefore, it is not beneficial for Congress to preempt these 
discussions with a sense of Congress resolution endorsing the 
establishment of a court.
  Now, the following are direct quotes from the State Department legal 
adviser, Conrad Harper's, submission to the U.N. Sixth Committee. They 
express only a portion of the concerns that have been raised by former 
legal advisors and other scholars, but they are significant enough to 
encourage further refinement and examination before Congress offers its 
endorsement:
       We are not yet convinced that the general category of 
     ``crimes under general international law'' is sufficiently 
     well defined.
       We will want to ensure that cases which can be properly and 
     adequately handled in national courts are not removed 
     unnecessarily to the international court. We also have a 
     concern over how international jurisdiction would relate to 
     existing status of forces agreements, the prosecution of war 
     crimes, and other military matters.

       ``We also note that under the current proposal, many states 
     which have a definite interest in a particular case have no 
     role in deciding whether the international criminal court or 
     national courts handle that case.''
       ``We also believe that there is a need to think through how 
     the international criminal court will affect existing 
     extradition relationships.''
       ``We note that the current draft's provision for immediate 
     arrest and surrender of an offender may be inconsistent with 
     requirements for a judicial hearing that are for the United 
     States, and likely for other states as well, a matter of 
     constitutional dimension.''
       ``We note, for example, that the current draft does not 
     make provisions for a true `appeal' to a separate group of 
     appellate judges.''
       ``Our review is continuing, and this is not a complete list 
     of our concerns. . . . I wish to emphasize that my Government 
     is ready to work energetically with the members of this 
     Committee to examine the issues related to establishing an 
     international criminal court, and to work together to resolve 
     the relevant issues and concerns.''

  In negotiations to establish an international criminal court that 
works, the U.S. position may be undercut by this blanket endorsement.
  I thank the Chair and yield the floor.
  I ask my colleague if we can move forward on my other amendment to a 
vote.
  Mr. KERRY. Mr. President, we are just checking with leadership to 
make certain that we can proceed. I hope in a moment we can propound 
the unanimous consent. Prior to that, I believe on the amendment of the 
Senator from South Dakota that was previously set aside temporarily, I 
believe he did not request the yeas and nays to date. Therefore, that 
amendment is open to modification. I ask the Senator at this time if he 
wants to offer the modification that is agreed upon.


                    Amendment No. 1253, As Modified

  Mr. PRESSLER. Yes.
  Mr. President, I wish to modify the percentage in the second 
paragraph, if after a year, from 50 to 20 percent that has been agreed 
to. I would seek a rollcall vote on it. I ask unanimous consent that 
that be done.
  The PRESIDING OFFICER. Will the Senator send his modification to the 
desk?
  The amendment is so modified.
  The amendment No. 1253, as modified, is as follows:

                    Amendment No. 1253, As Modified

       Beginning on page 72, strike out line 1 and all that 
     follows through line 5 on page 74 and insert in lieu thereof 
     the following:

     SEC. 170B. UNITED NATIONS BUDGETARY AND MANAGEMENT REFORM

       (a) Withholding of Assessed Nonpeacekeeping Contributions 
     to the United Nations.--(1) In fiscal year 1994, 10 percent 
     of the amount of funds authorized to be appropriated for that 
     fiscal year for United States assessed contributions to the 
     United Nations and its specialized agencies shall be withheld 
     from obligation and expenditure until a certification is made 
     under subsection (b).
       (2) Beginning with fiscal year 1995 and at the beginning of 
     each fiscal year thereafter, 20 percent of the amount of 
     funds authorized to be appropriated for each fiscal year for 
     United States assessed contributions (other than for 
     peacekeeping activities) to the United Nations and its 
     specialized agencies shall be withheld from obligation and 
     expenditure until a certification is made under subsection 
     (b).
       (b) Certification.--The certification referred to in 
     subsection (a) is a certification by the President to the 
     Congress that--
       (1) the United Nations has established an independent and 
     objective Office of Inspector General to conduct and 
     supervise audits, inspections, and investigations relating to 
     the programs and operations of the United Nations and each of 
     the specialized agencies of the United Nations;
       (2) the Secretary General of the United Nations has 
     appointed an Inspector General, with the consent of the 
     General Assembly, solely on the basis of integrity and 
     demonstrated ability in accounting, auditing, financial 
     analysis, law, management analysis, public administration, or 
     investigations;
       (3) the United Nations Office of Inspector General is 
     authorized to--
       (A) make investigations and reports relating to the 
     administration of the programs and operations of the United 
     Nations and its specialized agencies;
       (B) have access to all records and documents or other 
     material available which relate to those programs and 
     operations; and
       (C) have direct and prompt access to any official of the 
     United Nations or of any of its specialized agencies, 
     including any head of a specialized agency or official of the 
     United Nations Secretariat;
       (4) the United Nations Office of Inspector General is 
     keeping the head of each specialized agency, the Secretary 
     General, the members of the Security Council, and the members 
     of the General Assembly fully informed about problems, 
     deficiencies, and the necessity for, and progress of, 
     corrective action;
       (5) the United Nations has established measures to protect 
     the identity of, and to prevent reprisals against, any staff 
     member making a complaint or disclosing information to, or 
     cooperating in any investigation or inspection by the Office 
     of the Inspector General; and
       (6) the United Nations has enacted procedures to ensure 
     compliance with the recommendations of the Inspector General.
       (c) Definition.--For purposes of this section, the term 
     ``United Nations operations'' includes any program, project 
     or activity conducted or supported, in whole or in part, by 
     the United Nations or any of its specialized agencies.

  Mr. PRESSLER. I ask for the yeas and nays on that.
  The PRESIDING OFFICER. Notwithstanding that the amendment is not 
currently pending, it is in order to ask for the yeas and nays at this 
time. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. CONRAD. Mr. President, I am pleased to be a cosponsor of Senator 
Pressler's amendment to S. 1281, State Department Authorization, which 
would require an independent inspector general for the United Nations. 
In addition, I would like to commend Senator Pressler for the work he 
has done on issues relating to waste, fraud, and abuse at the United 
Nations.
  It is no secret that the United Nations has been plagued with 
management and organizational difficulties for some time. In fact, 
throughout the 1980's, the United States regularly withheld a portion 
of its assessed contribution to the United Nations, in order to 
encourage better management practices.
  In March 1993 Dick Thornburgh, then United Nations Undersecretary 
General for Management, released a report that raised even more serious 
concerns with the United Nations budget and management practices. 
According to the report, the United Nations still did not have modern 
word processors and many employees were ``deadwood workers protected by 
patronage.'' In addition, Thornburgh said there was no effective means 
to deal with waste, fraud, and abuse at the United Nations.
  The waste and mismanagement that has plagued the United Nations for 
some time is completely unacceptable, particularly in light of the 
current fiscal situation. Last year, Congress and the administration 
showed real courage in enacting a comprehensive deficit reduction 
package. This package will reduce the deficit by $496 billion over 5 
years. A number of tough spending cuts were enacted with that law, and 
the spending choices facing Congress in the upcoming fiscal year will 
be equally difficult. In light of the Federal budget deficit and the 
many worthy programs that are facing tough budget cuts, we cannot and 
we must not continue to spend money in areas where we know it will be 
squandered away by mismanagement. The United Nations must develop a 
mechanism to deal with its internal problems immediately. I believe the 
Pressler amendment will help to accomplish this goal.
  As reported by the Foreign Relations Committee, S. 1281 directs the 
President, through our U.N. Representative, to propose that the U.N. 
Secretary General form an advisory committee to create a United Nations 
mechanism for budgetary audits and ways to investigate waste, fraud and 
abuse. I do not believe these provisions go far enough. Far too much 
time and money has been wasted already.
  The Pressler amendment requires the President to certify to Congress 
that the United Nations has established an independent Office of 
inspector General. If such certification is not made, the United States 
will withhold 10 percent of its assessed obligation in fiscal 1994, and 
20 percent of its assessed contribution in fiscal 1995.
  Clearly, there are some who will disagree with any measure that would 
withhold U.S. contributions to the United Nations. But I believe that 
these steps are the absolute minimum we must take to ensure the 
establishment of an inspector general for the United Nations. Passage 
of the Pressler amendment is an important first step to ending waste, 
fraud, and abuse. We owe it to taxpayers in our States and all over the 
country to adopt this amendment.
  Mr. MOYNIHAN. Mr. President, I rise to oppose the amendment to 
withhold U.S. contributions to the United Nations offered by my 
colleague from South Dakota, on the grounds that it violates the solemn 
treaty obligations of the United States.
  Certainly, the United Nations could benefit from increased scrutiny 
of its operations. When abuses are suspected they should be 
appropriately investigated. The United Nations could greatly benefit 
from a thorough investigation of its practices and policies with the 
aim of improving efficiency and curbing abuses. However, to withhold 
our assessed contribution violates our commitments under the U.N. 
Charter and the Constitution. Article VI of the Constitution is clear 
on this point. All treaties made ``shall be the supreme law of the 
land.'' Agreed to by two-thirds of the Senate.
  We have been down this path before. In the 1980's, the Senate passed 
a similar amendment offered by Senator Kassebaum which also reduced our 
contribution to the United Nations. What did this achieve? The United 
States was transformed into the biggest deadbeat at the United Nations. 
We ran up huge arrearages, still totalling hundreds of millions. We 
lost moral authority within the institution. And we undermined our 
ability to affect the very changes sought by the Kassebaum amendment. 
Changes were made due to the financial crisis we helped to create. Some 
were beneficial. But they were achieved at great cost to our reputation 
for fidelity to our international commitments.
  The United Nations was created in the aftermath of the chaos caused 
by the Second World War. Its purpose was to enact laws to prevent 
international aggression. Our safety has increased by what might be 
termed the evolution of civility. Progress is slow. But our security is 
reduced if we who enjoy the benefits of international law undermine our 
commitments by selective adherence to those laws. Congresses should be 
seeking ways to strengthen the rule of law, not to flaunt it.
  Mr. KERRY. Mr. President, we are just awaiting final word with 
respect to proceeding forward. Again, I ask colleagues if they do have 
amendments at this time, the bill is open for further amendment. We 
would clearly like to try to proceed. I know many of our colleagues are 
at a luncheon now with former President Nixon. But I would remind staff 
that are listening or colleagues that are still following the 
proceedings on the floor that the majority leader would like to try to 
finish this bill if possible by tomorrow evening. While there is still 
some 50 or 60 amendments supposedly on the list, we do not have 50 or 
60 Senators in line waiting to bring them up.
  So we would obviously ask, if there are amendments available, to be 
brought right now. This is a good time to bring them.
  Mr. PRESSLER. Mr. President, if I could address the manager of the 
bill on the opposite side, I do have two amendments that are ready to 
go on the nonproliferation issue. If we can have a short quorum call 
and preferably do my two nonproliferation amendments, could we get a 
time certain for the vote? Could we vote at 2 o'clock?
  Mr. KERRY. Mr. President, we are hoping to propound the unanimous 
consent to vote at 2 o'clock. We are just waiting for a few moments. If 
I could have a private visit with my colleague, I think we can work out 
a schedule on these other amendments. But we are not yet clear on his 
two amendments. I would suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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