[Congressional Record Volume 146, Number 74 (Wednesday, June 14, 2000)]
[Senate]
[Pages S5107-S5109]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HELMS (for himself, Mr. Lott, Mr. Warner, Mr. Hatch, Mr. 
        Grams, and Mr. Shelby):
  S. 2726. A bill to protect United States military personnel and other 
elected and appointed officials of the United States Government against 
criminal prosecution by an international criminal court to which the 
United States is not a party; to the Committee on Foreign Relations.


            american servicemembers' protection act of 2000

  Mr. HELMS. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2726

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``American Servicemembers' 
     Protection Act of 2000''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) On July 17, 1998, the United Nations Diplomatic 
     Conference of Plenipotentiaries on the Establishment of an 
     International Criminal Court, meeting in Rome, Italy, adopted 
     the ``Rome Statute of the International Criminal Court.'' The 
     vote on adoption of the Statute was 120 in favor to 7 
     against, with 21 countries abstaining. The United States 
     voted against final adoption of the Rome Statute.
       (2) As of May 30, 2000, 96 countries had signed the Rome 
     Statute and 10 had ratified it. Pursuant to Article 126 of 
     the Rome Statute, the Statute will enter into force on the 
     first day of the month after the 60th day following the date 
     that the 60th country deposits an instrument ratifying the 
     Statute.
       (3) Since adoption of the Rome Statute, a Preparatory 
     Commission for the International Criminal Court has continued 
     to meet regularly to draft documents to implement the Rome 
     Statute, including Rules of Procedure and Evidence, 
     definitions of Elements of Crimes, and a definition of the 
     Crime of Aggression.
       (4) During testimony before the Congress, the lead United 
     States negotiator, Ambassador David Scheffer stated that the 
     United States could not sign the Rome Statute because certain 
     critical negotiating objectives of the United States had not 
     been achieved. As a result, he stated: ``We are left with 
     consequences that do not serve the cause of international 
     justice.''
       (5) Ambassador Scheffer went on to tell the Congress that: 
     ``Multinational peacekeeping forces operating in a country 
     that has joined the treaty can be exposed to the Court's 
     jurisdiction even if the country of the individual 
     peacekeeper has not joined the treaty. Thus, the treaty 
     purports to establish an arrangement whereby United States 
     armed forces operating overseas could be conceivably 
     prosecuted by the international court even if the United 
     States has not agreed to be bound by the treaty. Not only is 
     this contrary to the most fundamental principles of treaty 
     law, it could inhibit the ability of the United States to use 
     its military to meet alliance obligations and participate in 
     multinational operations, including humanitarian 
     interventions to save civilian lives. Other contributors to 
     peacekeeping operations will be similarly exposed.''.
       (6) Any Americans prosecuted by the International Criminal 
     Court will, under the Rome Statute, be denied many of the 
     procedural protections to which all Americans are entitled 
     under the Bill of Rights to the United States Constitution, 
     including, among others, the right to trial by jury, the 
     right not to be compelled to provide self-incriminating 
     testimony, and the right to confront and cross-examine all 
     witnesses for the prosecution.
       (7) American servicemen and women deserve the full 
     protection of the United States Constitution when they are 
     deployed around the world to protect the vital national 
     interests of the United States. The United States Government 
     has an obligation to protect American servicemen and women, 
     to the maximum extent possible, against criminal prosecutions 
     carried out by United Nations officials under procedures that 
     deny them their constitutional rights.
       (8) In addition to exposing American servicemen and women 
     to the risk of international criminal prosecution, the Rome 
     Statute creates a risk that the President and other senior 
     elected and appointed officials of the United States 
     Government may be prosecuted by the International Criminal 
     Court. Particularly if the Preparatory Commission agrees on a 
     definition of the Crime of Aggression, senior United States 
     officials may be at risk of criminal prosecution for national 
     security decisions involving such matters as responding to 
     acts of terrorism, preventing the proliferation of weapons of 
     mass destruction, and deterring aggression. No less than 
     American servicemen and women, senior officials of the United 
     States Government deserve the full protection of the United 
     States Constitution with respect to official actions taken by 
     them to protect the national interests of the United States.

     SEC. 3. TERMINATION OF PROHIBITIONS OF THIS ACT.

       The prohibitions and requirements of sections 4, 5, 6, and 
     7 shall cease to apply, and the authority of section 8 shall 
     terminate, if the United States becomes a party to the 
     International Criminal Court pursuant to a treaty made under 
     article II, section 2, clause 2 of the Constitution of the 
     United States.

     SEC. 4. PROHIBITION ON COOPERATION WITH THE INTERNATIONAL 
                   CRIMINAL COURT.

       (a) Construction.--The provisions of this section apply 
     only to cooperation with the International Criminal Court and 
     shall not be construed to apply to cooperation with an ad hoc 
     international criminal tribunal established by the United 
     Nations Security Council before or after the date of the 
     enactment of this Act to investigate and prosecute war crimes 
     committed in a specific country or during a specific 
     conflict.
       (b) Prohibition on Responding to Requests for 
     Cooperation.--No agency or entity of the United States 
     Government or of any State or local government, including any 
     court, may cooperate with the International Criminal Court in 
     response to a request for cooperation submitted by the 
     International Criminal Court pursuant to Part 9 of the Rome 
     Statute.
       (c) Prohibition on Specific Forms of Cooperation.--No 
     agency or entity of the United States Government or of any 
     State or local government, including any court, may undertake 
     any action described in the following articles of the Rome 
     Statute with the purpose or intent of cooperating with, or 
     otherwise providing support or assistance to, the 
     International Criminal Court:
       (1) Article 89 (relating to arrest, extradition, and 
     transit of suspects).
       (2) Article 92 (relating to provisional arrest of 
     suspects).
       (3) Article 93 (relating to seizure of property, asset 
     forfeiture, execution of searches and seizures, service of 
     warrants and other judicial process, taking of evidence, and 
     similar matters).
       (d) Restriction on Assistance Pursuant to Mutual Legal 
     Assistance Treaties.--The United States shall exercise its 
     rights to limit the use of assistance provided under all 
     treaties and executive agreements for mutual legal assistance 
     in criminal matters, multilateral conventions with legal 
     assistance provisions, and extradition treaties, to which the 
     United States is a party, and in connection with the 
     execution or issuance of any letter rogatory, to prevent the 
     transfer to, or other use by, the International Criminal 
     Court of any assistance provided by the United States under 
     such treaties and letters rogatory.
       (e) Prohibition on Investigative Activities of Agents.--No 
     agent of the International Criminal Court may conduct, in the 
     United States or any territory subject to the jurisdiction of 
     the United States, any investigative activity relating to a 
     preliminary inquiry, investigation, prosecution, or other 
     proceeding at the International Criminal Court.

     SEC. 5. RESTRICTION ON UNITED STATES PARTICIPATION IN CERTAIN 
                   UNITED NATIONS PEACEKEEPING OPERATIONS.

       (a) Policy.--Effective beginning on the date that the Rome 
     Statute enters into force pursuant to Article 126 of the Rome 
     Statute, the President should use the voice and vote of the 
     United States in the United Nations Security Council to 
     ensure that each resolution of the Security Council 
     authorizing a peacekeeping operation pursuant to chapter VI 
     or VII of the charter of the United Nations permanently 
     exempts United States military personnel participating in 
     such peacekeeping operation from criminal prosecution by the 
     International Criminal Court for actions undertaken by such 
     personnel in connection with the operation.
       (b) Restriction.--United States military personnel may not 
     participate in a peacekeeping operation authorized by the 
     United Nations Security Council pursuant to chapter VI or VII 
     of the charter of the United Nations on or after the date 
     that the Rome Statute enters into effect pursuant to Article 
     126 of the Rome Statute, unless the President has submitted 
     to the appropriate congressional committees a certification 
     described in subsection (c) with respect to such peacekeeping 
     operation.
       (c) Certification.--The certification referred to in 
     subsection (b) is a certification by the President that 
     United States military personnel are able to participate in a 
     peacekeeping operation without risk of criminal prosecution 
     by the International Criminal Court because--
       (1) in authorizing the peacekeeping operation, the United 
     Nations Security Council

[[Page S5108]]

     permanently exempted United States military personnel 
     participating in the operation from criminal prosecution by 
     the International Criminal Court for actions undertaken by 
     them in connection with the operation;
       (2) each country in which United States military personnel 
     participating in the peacekeeping operation will be present 
     is either not a party to the International Criminal Court or 
     has entered into an agreement in accordance with Article 98 
     of the Rome Statute preventing the International Criminal 
     Court from proceeding against United States personnel present 
     in that country; or
       (3) the President has taken other appropriate steps to 
     guarantee that United States military personnel participating 
     in the peacekeeping operation will not be prosecuted by the 
     International Criminal Court for actions undertaken by such 
     personnel in connection with the operation.

     SEC. 6. PROHIBITION ON DIRECT OR INDIRECT TRANSFER OF CERTAIN 
                   CLASSIFIED NATIONAL SECURITY INFORMATION TO THE 
                   INTERNATIONAL CRIMINAL COURT.

       (a) Direct Transfer.--Not later than the date on which the 
     Rome Statute enters into force, the President shall ensure 
     that appropriate procedures are in place to prevent the 
     transfer of classified national security information to the 
     International Criminal Court.
       (b) Indirect Transfer.--Not later than the date on which 
     the Rome Statute enters into force, the President shall 
     ensure that appropriate procedures are in place to prevent 
     the transfer of classified national security information 
     relevant to matters under consideration by the International 
     Criminal Court to the United Nations and to the government of 
     any country that is a party to the International Criminal 
     Court unless the United Nations or that government, as the 
     case may be, has provided written assurances that such 
     information will not be made available to the International 
     Criminal Court.

     SEC. 7. PROHIBITION OF UNITED STATES MILITARY ASSISTANCE TO 
                   PARTIES TO THE INTERNATIONAL CRIMINAL COURT.

       (a) Prohibition of Military Assistance.--Subject to 
     subsections (b), (c), and (d), no United States military 
     assistance may be provided to the government of a country 
     that is a party to the International Criminal Court.
       (b) Waiver.--The President may waive the prohibition of 
     subsection (a) with respect to a particular country if the 
     President determines and reports to the appropriate 
     congressional committees that such country has entered into 
     an agreement with the United States pursuant to Article 98 of 
     the Rome Statute preventing the International Criminal Court 
     from proceeding against United States personnel present in 
     such country.
       (c) Special Authorities.--The prohibition of subsection (a) 
     shall be subject to the special authorities of section 614 of 
     the Foreign Assistance Act of 1961 and the applicable 
     conditions and limitations under such section.
       (d) Exemption.--The prohibition of subsection (a) shall not 
     apply to the government of any country that is--
       (1) a NATO member country, or
       (2) a major non-NATO ally (including, inter alia, 
     Australia, Egypt, Israel, Japan, the Republic of Korea, and 
     New Zealand).

     SEC. 8. AUTHORITY TO FREE UNITED STATES MILITARY PERSONNEL 
                   AND CERTAIN OTHER PERSONS HELD CAPTIVE BY OR ON 
                   BEHALF OF THE INTERNATIONAL CRIMINAL COURT.

       (a) Authority.--The President is authorized to use all 
     means necessary and appropriate to bring about the release 
     from captivity of any person described in subsection (b) who 
     is being detained or imprisoned against that person's will by 
     or on behalf of the International Criminal Court.
       (b) Persons Authorized To Be Freed.--The authority of 
     subsection (a) shall extend to the following persons:
       (1) United States military personnel, elected or appointed 
     officials of the United States Government, and other persons 
     employed by or working on behalf of the United States 
     Government.
       (2) Military personnel, elected or appointed officials, and 
     other persons employed by or working on behalf of the 
     government of a NATO member country or major non-NATO ally 
     (including, inter alia, Australia, Egypt, Israel, Japan, the 
     Republic of Korea, and New Zealand) that is not a party to 
     the International Criminal Court, upon the request of such 
     government.
       (3) Individuals detained or imprisoned for official actions 
     taken while the individual was a person described in 
     paragraph (1) or (2), and in the case of such individuals 
     described in paragraph (2), upon the request of such 
     government.
       (c) Construction.--Subsection (a) shall not be construed to 
     authorize the payment of bribes or the provision of other 
     incentives to induce the release from captivity of a person 
     described in subsection (b).

     SEC. 9. STATUS OF FORCES AGREEMENTS.

       (a) Report on Status of Forces Agreements.--Not later than 
     6 months after the date of the enactment of this Act, the 
     President shall transmit to the appropriate congressional 
     committees a report evaluating the degree to which each 
     existing status of forces agreement with a foreign 
     government, or other similar international agreement, 
     protects United States military and other personnel from 
     extradition to the International Criminal Court under Article 
     98 of the Rome Statute.
       (b) Plan for Achieving Enhanced Protection of United States 
     Military Personnel.--Not later than 1 year after the date of 
     the enactment of this Act, the President shall transmit to 
     the appropriate congressional committees a plan for amending 
     existing status of forces agreements, or negotiating new 
     international agreements, in order to achieve the maximum 
     protection available under Article 98 of the Rome Statute for 
     United States military and other personnel in those countries 
     where maximum protection under Article 98 has not already 
     been achieved.
       (c) Submission in Classified Form.--The report under 
     subsection (a), and the plan under subsection (b), or 
     appropriate parts thereof, may be submitted in classified 
     form.

     SEC. 10. ALLIANCE COMMAND ARRANGEMENTS.

       (a) Report on Alliance Command Arrangements.--Not later 
     than 6 months after the date of the enactment of this Act, 
     the President shall transmit to the appropriate congressional 
     committees a report with respect to each military alliance to 
     which the United States is party--
       (1) describing the degree to which United States military 
     personnel may, in the context of military operations 
     undertaken by or pursuant to that alliance, be placed under 
     the command or operational control of foreign military 
     officers subject to the jurisdiction of the international 
     criminal court because they are nationals of a party to the 
     international criminal court, and
       (2) evaluating the degree to which United States military 
     personnel engaged in military operations undertaken by or 
     pursuant to that alliance may be exposed to greater risks as 
     a result of being placed under the command or operational 
     control of foreign military officers subject to the 
     jurisdiction of the international criminal court.
       (b) Plan for Achieving Enhanced Protection of United States 
     Military Personnel.--Not later than one year after the date 
     of the enactment of this Act, the President shall transmit to 
     the appropriate congressional committees a plan for modifying 
     command and operational control arrangements within military 
     alliances to which the United States is a party to reduce any 
     risks to United States military personnel identified pursuant 
     to subsection (a)(2).
       (c) Submission in Classified Form.--The report under 
     subsection (a), and the plan under subsection (b), or 
     appropriate parts thereof, may be submitted in classified 
     form.

     SEC. 11. WITHHOLDINGS.

       Funds withheld from the United States share of assessments 
     to the United Nations or any other international organization 
     pursuant to section 705 of the Admiral James W. Nance and Meg 
     Donovan Foreign Relations Authorization Act, Fiscal Years 
     2000 and 2001 (as enacted by section 1000(a)(7) of Public Law 
     106-113; 113 Stat. 1501A-460), are authorized to be 
     transferred to the Embassy Security, Construction and 
     Maintenance Account of the Department of State.

     SEC. 12. DEFINITIONS.

       As used in this Act and in sections 705 and 706 of the 
     Admiral James W. Nance and Meg Donovan Foreign Relations 
     Authorization Act, Fiscal Years 2000 and 2001, the following 
     terms have the following meanings:
       (1) Appropriate congressional committees.--The term 
     ``appropriate congressional committees'' means the Committee 
     on International Relations of the House of Representatives 
     and the Committee on Foreign Relations of the Senate.
       (2) Classified national security information.--The term 
     ``classified national security information'' means 
     information that is classified or classifiable under 
     Executive Order 12958 or a successor executive order.
       (3) Extradition.--The terms ``extradition'' and 
     ``extradite'' include both ``extradition'' and ``surrender'' 
     as those terms are defined in Article 102 of the Rome 
     Statute.
       (4) International criminal court.--The term ``International 
     Criminal Court'' means the court established by the Rome 
     Statute.
       (5) Major non-nato ally.--The term ``major non-NATO ally'' 
     means a country that has been so designated in accordance 
     with section 517 of the Foreign Assistance Act of 1961.
       (6) Party to the international criminal court.--The term 
     ``party to the International Criminal Court'' means a 
     government that has deposited an instrument of ratification, 
     acceptance, approval, or accession to the Rome Statute, and 
     has not withdrawn from the Rome Statute pursuant to Article 
     127 thereof.
       (7) Peacekeeping operation authorized by the united nations 
     security council pursuant to chapter vi of vii of the charter 
     of the united nations.--The term ``peacekeeping operation 
     authorized by the United Nations Security Council pursuant to 
     chapter VI of VII of the charter of the United Nations'' 
     means any military operation to maintain or restore 
     international peace and security that--
       (A) is authorized by the United Nations Security Council 
     pursuant to chapter VI or VII of the charter of the United 
     Nations, and
       (B) is paid for from assessed contributions of United 
     Nations members that are made available for peacekeeping 
     activities.
       (8) Rome statute.--The term ``Rome Statute'' means the Rome 
     Statute of the International Criminal Court, adopted by the 
     United Nations Diplomatic Conference of Plenipotentiaries on 
     the Establishment of an International Criminal Court on July 
     17, 1998.

[[Page S5109]]

       (9) Support.--The term ``support'' means assistance of any 
     kind, including material support, services, intelligence 
     sharing, law enforcement cooperation, the training or detail 
     of personnel, and the arrest or detention of individuals.
       (10) United states military assistance.--The term ``United 
     States military assistance'' means--
       (A) assistance provided under chapters 2 through 6 of part 
     II of the Foreign Assistance Act of 1961 (22 U.S.C. 2311 et 
     seq.);
       (B) defense articles or defense services furnished with the 
     financial assistance of the United States Government, 
     including through loans and guarantees; or
       (C) military training or education activities provided by 
     any agency or entity of the United States Government.
     Such term does not include activities reportable under title 
     V of the National Security Act of 1947 (50 U.S.C. 413 et 
     seq.).
                                 ______