Information from USA SENATE
S.857American Servicemembers' Protection Act of 2001 (Introduced in Senate)
SEC. 8. AUTHORITY TO FREE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES
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) Covered United States persons.
(2) Covered allied persons.
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 whether to proceed with the Statute was 120 in favor to 7 against,
with 21 countries abstaining.
The United States voted against final adoption of the Rome Statute.
(2) As of April 30, 2001, 139 countries had signed the Rome Statute and 30 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 on which 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 met regularly to draft documents to implement the Rome Statute,
including Rules of Procedure and Evidence, Elements of Crimes, and a definition of the Crime
of Aggression.
(4) During testimony before the Congress following the adoption of the Rome Statute,
the lead United States negotiator, Ambassador David Scheffer stated that the United States
could not sign the Rome Statute because certain critical negotiating objectives of
the United States had not been achieved.
As a result, he stated: `We are left with consequences that do not serve the cause of
international justice.'
(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) Notwithstanding these concerns, President Clinton directed that the United States
sign the Rome Statute on December 31, 2000. In a statement issued that day, he stated that
in view of the unremedied deficiencies of the Rome Statute, `I will not, and do not recommend
that my successor submit the Treaty to the Senate for advice and consent until our fundamental
concerns are satisfied'.
(7) Any American prosecuted by the International Criminal Court will,
under the Rome Statute, be denied procedural protections to which all Americans are entitled
under the Bill of Rights to the United States Constitution, such as the right to trial by
jury.
(8) Members of the Armed Forces of the United States deserve the full protection of
the United States Constitution wherever they are stationed or deployed around the world to
protect the vital national interests of the United States. The United States Government has
an obligation to protect the members of its Armed Forces, to the maximum extent possible,
against criminal prosecutions carried out by United Nations officials
under procedures that deny them their constitutional rights.
(9) In addition to exposing members of the Armed Forces of the United States 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
over United States objections, 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 members of the Armed Forces of the United States, 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. WAIVER AND TERMINATION OF PROHIBITIONS OF THIS ACT.
(a) Authority To Initially Waive Sections 5 and 7- The President is
authorized to waive the prohibitions and requirements of sections 5 and 7 for a single
period of one year. Such a waiver may be issued only if the President at least 15 days in
advance of exercising such authority--
(1) notifies the appropriate congressional committees of the intention to exercise
such authority; and
(2) determines and reports to the appropriate congressional committees that the
International Criminal Court has entered into a binding agreement
that--
(A) prohibits the International Criminal Court
from seeking to exercise jurisdiction over the following persons with respect to actions
undertaken by them in an official capacity:
(i) covered United States persons;
(ii) covered allied persons; and
(iii) individuals who were covered United States persons or covered allied
persons; and
(B) ensures that no person described in subparagraph (A) will be arrested,
detained, prosecuted, or imprisoned by or on behalf of the International
Criminal Court .
(b) Authority To Extend Waiver of Sections 5 and 7- The President is authorized to
waive the prohibitions and requirements of sections 5 and 7 for successive periods of one
year each upon the expiration of a previous waiver pursuant to subsection (a) or this subsection.
Such a waiver may be issued only if the President at least fifteen days in advance of
exercising such authority--
(1) notifies the appropriate congressional committees of the intention to exercise
such authority; and
(2) determines and reports to the appropriate congressional committees that the
International Criminal Court --
(A) remains party to, and has continued to abide by, a binding agreement
that--
(i) prohibits the International Criminal
Court from seeking to exercise jurisdiction over the following persons with respect to
actions undertaken by them in an official capacity:
(I) covered United States persons;
(II) covered allied persons; and
(III) individuals who were covered United States persons or
covered allied persons; and
(ii) ensures that no person described in clause (i) will be arrested,
detained, prosecuted, or imprisoned by or on behalf of the International
Criminal Court ; and
(B) has taken no steps to arrest, detain, prosecute, or imprison any person
described in clause (i) of subparagraph (A).
(c) Authority To Waive Sections 4 and 6 With Respect to an Investigation or Prosecution
of a Named Individual- The President is authorized to waive the prohibitions and requirements
of sections 4 and 6 to the degree they would prevent United States cooperation with an investigation
or prosecution of a named individual by the International Criminal Court .
Such a waiver may be issued only if the President at least 15 days in advance of exercising such
authority--
(1) notifies the appropriate congressional committees of the intention to exercise
such authority; and
(2) determines and reports to the appropriate congressional committees
that--
(A) a waiver pursuant to subsection (a) or (b) of the prohibitions and requirements
of sections 5 and 7 is in effect;
(B) there is reason to believe that the named individual committed the crime or
crimes that are the subject of the International Criminal Court's
investigation or prosecution;
(C) it is in the national interest of the United States for the International
Criminal Court's investigation or prosecution of the named individual to proceed;
and
(D) in investigating events related to actions by the named individual,
none of the following persons will be investigated, arrested, detained, prosecuted, or imprisoned
by or on behalf of the International Criminal Court with
respect to actions undertaken by them in an official capacity:
(i) Covered United States persons.
(ii) Covered allied persons.
(iii) Individuals who were covered United States persons or covered allied
persons.
(d) TERMINATION OF WAIVER PURSUANT TO SUBSECTION (c)- Any waiver or waivers exercised pursuant
to subsection (c) of the prohibitions and requirements of sections 4 and 6 shall terminate
at any time that a waiver pursuant to subsection (a) or (b) of the prohibitions and requirements
of sections 5 and 7 expires and is not extended pursuant to subsection (b).
(e) 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--
(1) 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; and
(2) shall not be construed to prohibit--
(A) any action permitted under section 8;
(B) any other action taken by members of the Armed Forces of the United States outside
the territory of the United States while engaged in military operations involving the threat
or use of force when necessary to protect such personnel from harm or to ensure the success
of such operations; or
(C) communication by the United States to the International Criminal
Court of its policy with respect to a particular matter.
(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 AND ASSISTANCE- No agency or entity of
the United States Government or of any State or local government, including any court ,
may provide financial support or other cooperation, support, or assistance to the
International Criminal Court , including by undertaking 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 on which 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 any peacekeeping operation under chapter VI of the charter
of the United Nations or peace enforcement operation under chapter VII of the charter of the
United Nations permanently exempts, at a minimum, members of the Armed Forces of the United
States participating in such operation from criminal prosecution
by the International Criminal Court for actions
undertaken by such personnel in connection with the operation.
(b) RESTRICTION- Members of the Armed Forces of the United States may not participate in
any peacekeeping operation under chapter VI of the charter of the United Nations or peace
enforcement operation under chapter VII of the charter of the United Nations, the creation of
which is authorized by the United Nations Security Council 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 operation.
(c) CERTIFICATION- The certification referred to in subsection (b) is a certification by
the President that members of the Armed Forces of the United States are able to participate
in the peacekeeping or peace enforcement operation without risk of criminal prosecution
by the International Criminal Court because--
(1) in authorizing the operation, the United Nations Security Council permanently
exempted, at a minimum, members of the Armed Forces of the United States 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 members of the Armed Forces of the United States participating
in the operation will be present is either not a party to the International Criminal
Court and has not invoked the jurisdiction of the International
Criminal Court pursuant to Article 12 of the Rome Statute, or has entered into
an agreement in accordance with Article 98 of the Rome Statute preventing the International
Criminal Court from proceeding against
members of the Armed Forces of the United States present in that country; or
(3) the United States has taken other appropriate steps to guarantee that members of
the Armed Forces of the United States participating in the 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 .
(c) CONSTRUCTION- The provisions of this section shall not be construed to prohibit any action permitted under section 8.
SEC. 7. PROHIBITION OF UNITED STATES MILITARY ASSISTANCE TO PARTIES TO THE INTERNATIONAL CRIMINAL COURT .
(a) PROHIBITION OF MILITARY ASSISTANCE- Subject to subsections (b) and (c), 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--
(1) for one or more periods not exceeding one year each, if the President determines and reports to the appropriate
congressional committees that it is vital to the national interest of the United States to waive such prohibition; and
(2) permanently, 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) EXEMPTION- The prohibition of subsection (a) shall not apply to the government of--
(1) a NATO member country;
(2) a major non-NATO ally (including, inter alia, Australia, Egypt, Israel, Japan, the Republic of Korea, and New Zealand); or
SEC. 8. AUTHORITY TO FREE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES 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) Covered United States persons.
(2) Covered allied persons.
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