Directs the President to report to the appropriate congressional committees on the degree to which each existing status of forces agreement with a foreign government, or other similar international agreement, protects U.S. military and other personnel from extradition to the Court Authorizes funds withheld from the U.S. share of assessments to the UN or other international organizations pursuant to the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 to be transferred to the Embassy Security, Construction and Maintenance Account of the Department of State.
Terminates the requirements of this Act upon the United States becoming a party to the Court.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2726 Introduced in Senate (IS)]
106th CONGRESS
2d Session
S. 2726
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 14, 2000
Mr. Helms (for himself, Mr. Lott, Mr. Warner, Mr. Hatch, Mr. Grams, and
Mr. Shelby) introduced the following bill; which was read twice and
referred to the Committee on Foreign Relations
_______________________________________________________________________
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.
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 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.
(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.).
<all>
Introduced in Senate
Read twice and referred to the Committee on Foreign Relations. (text of measure as introduced: CR S5107-5109)
Committee on Foreign Relations. Hearings held.
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