1.This Act may be cited as the
American Self-Defense Protection Act
of 2010
.
2.Congress finds the following:
(1)On July 17, 1998,
the United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, meeting in Rome, Italy,
adopted the Rome Statute of the International Criminal Court
.
The vote on whether to proceed with the statute was 120 in favor to 7 against,
with 21 countries abstaining. The United States voted against final adoption of
the Rome Statute.
(2)During testimony
before the Congress following the adoption of the Rome Statute, the lead United
States negotiator, Ambassador David Scheffer, stated that the United States
could not sign the Rome Statute because certain critical negotiating objectives
of the United States had not been achieved. As a result, he stated: We
are left with consequences that do not serve the cause of international
justice.
.
(3)Ambassador
Scheffer went on to tell the Congress that: Multinational peacekeeping
forces operating in a country that has joined the treaty can be exposed to the
Court’s jurisdiction even if the country of the individual peacekeeper has not
joined the treaty. Thus, the treaty purports to establish an arrangement
whereby United States Armed Forces operating overseas could be conceivably
prosecuted by the international court even if the United States has not agreed
to be bound by the treaty. Not only is this contrary to the most fundamental
principles of treaty law, it could inhibit the ability of the United States to
use its military to meet alliance obligations and participate in multinational
operations, including humanitarian interventions to save civilian lives. Other
contributors to peacekeeping operations will be similarly
exposed.
.
(4)Notwithstanding
these concerns, President Clinton directed that the United States sign the Rome
Statute on December 31, 2000. In a statement issued that day, he stated that in
view of the unremedied deficiencies of the Rome Statute, I will not, and
do not recommend that my successor submit the Treaty to the Senate for advice
and consent until our fundamental concerns are satisfied.
.
(5)In a 2002 letter
to the Secretary-General of the United Nations, Under Secretary of State John
Bolton stated that … in connection with the Rome Statute of the
International Criminal Court … the United States does not intend to become a
party to the treaty. Accordingly, the United States has no legal obligations
arising from its signature on December 31, 2000.
.
(6)On July 1, 2002,
the Rome Statute entered into force, and the International Criminal Court was
enacted.
(7)Any American
prosecuted by the International Criminal Court will, under the Rome Statute, be
denied procedural protections to which all Americans are entitled under the
Bill of Rights to the United States Constitution, such as the right to trial by
jury.
(8)Members of the
Armed Forces should be free from the risk of prosecution by the International
Criminal Court, especially when they are stationed or deployed around the world
to protect the vital national interests of the United States. The United States
Government has an obligation to protect the members of its Armed Forces, to the
maximum extent possible, against criminal prosecutions carried out by the
International Criminal Court.
(9)In addition to
exposing members of the Armed Forces to the risk of international criminal
prosecution, the Rome Statute creates a risk that the President and other
senior elected and appointed officials of the United States Government may be
prosecuted by the International Criminal Court for national security decisions
involving such matters as responding to acts of terrorism, preventing the
proliferation of weapons of mass destruction, and deterring aggression,
particularly if the International Criminal Court Assembly of States Parties
agrees on a definition of the Crime of Aggression over United States
objections.
(10)No less than
members of the Armed Forces, senior officials of the United States Government
should be free from the risk of prosecution by the International Criminal
Court, especially with respect to official actions taken by them to protect the
national interests of the United States.
(11)Efforts to
subject senior United States officials and members of the Armed Forces to
criminal prosecution for official actions taken by them to protect the national
interests of the United States could undermine the security of the United
States and the right and ability of the United States and other democracies to
defend themselves.
(12)Any agreement on
a definition of the Crime of Aggression that usurps the prerogative of the
United Nations Security Council under article 39 of the charter of the United
Nations to determine the existence of any … act of aggression
would contravene the charter of the United Nations and undermine
deterrence.
(13)In a letter dated
November 29, 2000, a bipartisan group of twelve former senior United States
Government officials expressed concern regarding the threat to American
sovereignty and international freedom of action posed by the International
Criminal Court (ICC)
. The signatories were the following:
(A)Lawrence
Eagleburger, former Secretary of State.
(B)Brent Scowcroft,
former National Security Advisor.
(C)Caspar Weinberger,
former Secretary of Defense.
(D)Zbigniew
Brzezinski, former National Security Advisor.
(E)James Woolsey,
former Director of Central Intelligence.
(F)Jeane Kirkpatrick,
former Permanent Representative of the United States to the United
Nations.
(G)Henry Kissinger,
former Secretary of State.
(H)Donald Rumsfeld,
former Secretary of Defense.
(I)Richard V. Allen,
former National Security Advisor.
(J)George Shultz,
former Secretary of State.
(K)James A. Baker,
III, former Secretary of State.
(L)Robert M. Gates,
former Director of Central Intelligence, and present Secretary of
Defense.
(14)In their November
29, 2000, letter, the twelve bipartisan signatories added that any
Americans prosecuted by the ICC will be denied basic constitutional rights
guaranteed them under our Bill of Rights
.
(15)In their November
29, 2000, letter, the twelve bipartisan signatories further added that
Naturally we think it is essential that our nation’s military personnel
be safely beyond the reach of an unaccountable international prosecutor
operating under procedures inconsistent with our Constitution. War crimes and
other human rights violations have long been subject to criminal penalties
under United States law, and the United States has a far better record of
enforcing its laws against human rights violations than some of the countries
that support the ICC.
.
(16)In their November
29, 2000, letter, the twelve bipartisan signatories further added that
we think it equally important that the President, cabinet officers, and
other national security decision-makers not have to fear international criminal
prosecution as they go about their work. The risk of international criminal
prosecution will certainly chill decision-making within our government, and
could limit the willingness of our national leadership to respond forcefully to
acts of terrorism, aggression, and other threats to American interests. Indeed,
we believe that American leadership in the world could be the first casualty of
the ICC.
.
(17)The United States
has entered into bilateral agreements with over 100 countries pursuant to
article 98 of the Rome Statute preventing the International Criminal Court from
proceeding against United States personnel present in those countries.
(18)On August 2,
2002, the American Servicemembers’ Protection Act of 2002 was signed into law
as title II of the 2002 Supplemental Appropriations Act for Further Recovery
From and Response To Terrorist Attacks on the United States (Public Law
107–206).
(19)Among other
things, the American Servicemembers’ Protection Act of 2002 prohibits United
States cooperation with the International Criminal Court and specifies
restrictions on—
(A)participation by
covered United States persons in United Nations (UN) peacekeeping and peace
enforcement operations; and
(B)transfer to the
International Criminal Court of United States classified national security and
law enforcement information.
(20)Secretary of
State Hillary Rodham Clinton stated on August 6, 2009, that [It] is a
great regret that we are not a signatory
of the Rome Statute of the
International Criminal Court.
(21)Ambassador Susan
Rice, Permanent Representative of the United States to the United Nations,
stated at a meeting of the United Nations Security Council on January 29, 2009,
that the International Criminal Court looks to become an important and
credible instrument
. She further stated on August 12, 2009, that
We have changed course. … We no longer oppose mentions of … the
International Criminal Court
.
(22)In November of
2009, the United States for the first time sent an observer delegation to the
Assembly of States Parties of the International Criminal Court.
(23)Stephen J. Rapp,
Ambassador-at-Large for War Crimes Issues, has expressed the willingness of the
United States to participate in the Review Conference of the Rome Statute of
the International Criminal Court, which is scheduled to be held from May 31 to
June 11, 2010, in Kampala, Uganda.
(24)Ambassador Rapp
has stated that the United States will return to engagement at the
ICC
.
(25)On December 1,
2009, the President announced his determination that it is in our vital
national interest to send an additional 30,000 United States troops to
Afghanistan
in his Address to the Nation on the Way Forward in
Afghanistan and Pakistan
, delivered at the United States Military
Academy at West Point, New York.
(26)During their
testimony before the Committee on Foreign Affairs of the United States House of
Representatives on December 10, 2009, General Karl W. Eikenberry (retired),
United States Ambassador to Afghanistan, and General Stanley A. McChrystal,
Commander, International Security Assistance Force and Commander, United States
Forces Afghanistan, were both asked, Are you on record as saying that
you are absolutely opposed, under any circumstances, to men and women in
uniform being arrested anywhere in the world and tried before the ICC court as
a result of their actions in either Iraq or Afghanistan?
. They both
responded in the affirmative.
(27)The Prosecutor of
the International Criminal Court, Luis Moreno-Ocampo, has reportedly stated
that he considers all soldiers operating on the territory of Afghanistan—even
those from nations who have not ratified the Rome Statute—to fall under the
jurisdiction of the International Criminal Court, and that he is conducting a
preliminary investigation
into whether NATO troops, including
American soldiers, have committed war crimes
.
(28)Those seeking to
prevent the democratic, Jewish State of Israel from defending itself from
violent militant groups and their state sponsors have frequently attempted to
use the International Criminal Court in furtherance of this objective.
(29)From December
2008 to January of 2009, in response to thousands of rocket and mortar attacks
spanning eight years from Hamas and other violent militant groups in the Gaza
Strip, Israel conducted Operation Cast Lead in order to defend its citizens
from such attacks.
(30)The Prosecutor of
the International Criminal Court, Luis Moreno-Ocampo, has reportedly stated
that he is considering a request by the Palestinian Authority to exercise
jurisdiction over the West Bank and Gaza in order to investigate Israel’s
defensive Operation Cast Lead.
(31)On September 15,
2009, pursuant to a one-sided, anti-Israel mandate from the notoriously biased
United Nations Human Rights Council, the United Nations Fact Finding
Mission on the Gaza Conflict
released its report (known as the
Goldstone Report
), which—
(A)repeatedly made
sweeping and unsubstantiated determinations that the Israeli military had
deliberately attacked civilians during Operation Cast Lead;
(B)in effect denied
the State of Israel the right to self-defense;
(C)never noted the
fact that Israel had the right to defend its citizens from the repeated violent
attacks committed against civilian targets in southern Israel by Hamas and
other Foreign Terrorist Organizations operating from Gaza;
(D)largely ignored
the culpability of the Government of Iran and the Government of Syria, both of
whom sponsor Hamas and other violent militant groups; and
(E)recommended that
the report be referred for further action to the Prosecutor of the
International Criminal Court.
(32)On November 3,
2009, the United States House of Representatives adopted House Resolution 867,
which consider[ed] the
Report of the United Nations Fact Finding
Mission on the Gaza Conflict [the] Goldstone Report to be irredeemably
biased and unworthy of further consideration or legitimacy
and
reaffirm[ed] its support for the democratic, Jewish State of Israel, for
Israel’s security and right to self-defense, and, specifically, for Israel’s
right to defend its citizens from violent militant groups and their state
sponsors
.
(33)As a non-party to
the Rome Statute, the United States is not bound by its terms, and does not
recognize any claimed jurisdiction of the International Criminal Court over
United States nationals.
3.It is the sense of
Congress that—
(1)the United States
should not ratify the Rome Statute of the International Criminal Court;
(2)the President
should not submit for ratification the Rome Statute of the International
Criminal Court;
(3)the President and
the Secretary of State should not undertake further actions that could
legitimize the International Criminal Court;
(4)the President and
the Secretary of State should lead a high-level diplomatic effort to encourage
additional countries to enter into agreements 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 countries, and
to strengthen existing article 98 agreements;
(5)the President and
the Secretary of State should lead a high-level diplomatic effort to defend the
right to self-defense of the United States and other democracies, including the
United States indispensable ally Israel, against efforts such as the Goldstone
Report that seek to deny democracies that very right via entities like the
International Criminal Court; and
(6)the President and
the Secretary of State should explore credible, alternative forums to combat
impunity for war crimes and other atrocities, while respecting the sovereignty
and right to self-defense of democracies with robust, autonomous, and effective
judicial systems.
4.Prohibition on
use of funds for participation in the International Criminal Court
(a)Notwithstanding any other provision of law, no funds made
available to any department, agency, or entity of the United States Government
or to any State or local government, including any court, may be used for
United States participation in the International Criminal Court or its
attendant activities, including any review conference or meeting of the
Assembly of States Parties.
(b)The prohibition under subsection (a) shall be
construed to strengthen and supplement, not to weaken or supplant, the
prohibitions stated in section 2004 of the American Servicemembers’ Protection
Act of 2002 (title II of the 2002 Supplemental Appropriations Act for Further
Recovery From and Response To Terrorist Attacks on the United States (Public
Law 107–206)).
5.In this Act:
(1)International
Criminal CourtThe term International Criminal Court
means the court established by the Rome Statute.
(2)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.