22 U.S.C. § 7422 — Waiver and termination of prohibitions of

Page 1945 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 7422 ommend 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 Inter- national 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 Constitu- tion, such as the right to trial by jury. (8) Members of the Armed Forces of the United States 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 Inter- national Criminal Court. (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 Presi- dent and other senior elected and appointed officials of the United States Government may be prosecuted by the International Criminal Court. Particularly if the Preparatory Com- mission agrees on a definition of the Crime of Aggression over United States objections, sen- ior United States officials may be at risk of criminal prosecution for national security de- cisions involving such matters as responding to acts of terrorism, preventing the prolifera- tion of weapons of mass destruction, and de- terring aggression. No less than members of the Armed Forces of the United States, 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. (10) Any agreement within the Preparatory Commission 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 ‘‘de- termine the existence of any . . . . act of ag- gression’’ would contravene the charter of the United Nations and undermine deterrence. (11) It is a fundamental principle of inter- national law that a treaty is binding upon its parties only and that it does not create obliga- tions for nonparties without their consent to be bound. The United States is not a party to the Rome Statute and will not be bound by any of its terms. The United States will not recognize the jurisdiction of the International Criminal Court over United States nationals. (Pub. L. 107–206, title II, § 2002, Aug. 2, 2002, 116 Stat. 899.) Statutory Notes and Related Subsidiaries SHORT TITLE For short title of this subchapter as the ‘‘American Servicemembers’ Protection Act of 2002’’, see section 2001 of Pub. L. 107–206, set out as a note under section 7401 of this title. § 7422. Waiver and termination of prohibitions of this subchapter (a) Authority to initially waive section 7424 The President is authorized to waive the pro- hibitions and requirements of section 7424 of this title for a single period of 1 year. A waiver under this subsection may be issued only if the President at least 15 days in advance of exer- cising 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 Inter- national 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 section 7424 The President is authorized to waive the pro- hibitions and requirements of section 7424 of this title for successive periods of 1 year each upon the expiration of a previous waiver pursu- ant to subsection (a) or this subsection. A waiv- er under this subsection may be issued only if the President at least 15 days in advance of exer- cising 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 Inter- national 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, pros- ecuted, 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 7423 and 7425 with respect to an investigation or prosecu- tion of a named individual The President is authorized to waive the pro- hibitions and requirements of sections 7423 and Page 1946 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 7423 7425 of this title to the degree such prohibitions and requirements would prevent United States cooperation with an investigation or prosecu- tion of a named individual by the International Criminal Court. A waiver under this subsection 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 section 7424 of this title is in effect; (B) there is reason to believe that the named individual committed the crime or crimes that are the subject of the Inter- national 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 ac- tions by the named individual, none of the following persons will be investigated, ar- rested, 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 sub- section (c) Any waiver or waivers exercised pursuant to subsection (c) of the prohibitions and require- ments of sections 7423 and 7425 of this title shall terminate at any time that a waiver pursuant to subsection (a) or (b) of the prohibitions and re- quirements of section 7424 of this title expires and is not extended pursuant to subsection (b). (e) Termination of prohibitions of this sub- chapter The prohibitions and requirements of sections 7423, 7424, and 7425 of this title shall cease to apply, and the authority of section 7427 of this title shall terminate, if the United States be- comes 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. (Pub. L. 107–206, title II, § 2003, Aug. 2, 2002, 116 Stat. 901; Pub. L. 110–181, div. A, title XII, § 1212(b)(1), Jan. 28, 2008, 122 Stat. 371.) Editorial Notes AMENDMENTS 2008—Subsecs. (a), (b). Pub. L. 110–181, § 1212(b)(1)(A), (B), substituted ‘‘section 7424’’ for ‘‘sections 7424 and 7426’’ in heading and text. Subsecs. (c)(2)(A), (d). Pub. L. 110–181, § 1212(b)(1)(C), (D), substituted ‘‘section 7424’’ for ‘‘sections 7424 and 7426’’. Subsec. (e). Pub. L. 110–181, § 1212(b)(1)(E), substituted ‘‘and 7425’’ for ‘‘7425, and 7426’’. § 7423. Prohibition on cooperation with the Inter- national Criminal Court (a) Application The provisions of this section— (1) apply only to cooperation with the Inter- national Criminal Court and shall not apply to cooperation with an ad hoc international criminal tribunal established by the United Nations Security Council before or after Au- gust 2, 2002, to investigate and prosecute war crimes committed in a specific country or dur- ing a specific conflict; and (2) shall not prohibit— (A) any action permitted under section 7427 of this title; or (B) communication by the United States of its policy with respect to a matter. (b) Prohibition on responding to requests for co- operation Notwithstanding section 1782 of title 28 or any other provision of law, no United States Court, and no agency or entity of any State or local government, including any court, may cooperate with the International Criminal Court in re- sponse to a request for cooperation submitted by the International Criminal Court pursuant to the Rome Statute. (c) Prohibition on transmittal of letters rogatory from the International Criminal Court Notwithstanding section 1781 of title 28 or any other provision of law, no agency of the United States Government may transmit for execution any letter rogatory issued, or other request for cooperation made, by the International Crimi- nal Court to the tribunal, officer, or agency in the United States to whom it is addressed. (d) Prohibition on extradition to the Inter- national Criminal Court Notwithstanding any other provision of law, no agency or entity of the United States Gov- ernment or of any State or local government may extradite any person from the United States to the International Criminal Court, nor support the transfer of any United States citizen or permanent resident alien to the International Criminal Court. (e) Prohibition on provision of support to the International Criminal Court Notwithstanding any other provision of law, no agency or entity of the United States Gov- ernment or of any State or local government, including any court, may provide support to the International Criminal Court. (f) Prohibition on use of appropriated funds to assist the International Criminal Court Notwithstanding any other provision of law, no funds appropriated under any provision of law may be used for the purpose of assisting the investigation, arrest, detention, extradition, or prosecution of any United States citizen or per- manent resident alien by the International Criminal Court. (g) 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