22 U.S.C. § 7421 — Findings

Page 1944 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 7402 gated for use by, or for support of, the Inter- national Criminal Court unless the United States has become a party to the Court pursuant to a treaty made under Article II, section 2, clause 2 of the Constitution of the United States on or after November 29, 1999. (c) International Criminal Court defined In this section, the term ‘‘International Crimi- nal Court’’ means the court established by the Rome Statute of the International Criminal Court, adopted by the United Nations Diplo- matic Conference of Plenipotentiaries on the Es- tablishment of an International Criminal Court on July 17, 1998. (Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title VII, § 705], Nov. 29, 1999, 113 Stat. 1536, 1501A–460.) Editorial Notes CODIFICATION Section was formerly set out as a note under section 262–1 of this title. Statutory Notes and Related Subsidiaries SHORT TITLE Pub. L. 107–206, title II, § 2001, Aug. 2, 2002, 116 Stat. 899, provided that: ‘‘This title [enacting subchapter II of this chapter] may be cited as the ‘American Servicemembers’ Protection Act of 2002’.’’ § 7402. Prohibition on extradition or transfer of United States citizens to the International Criminal Court (a) Prohibition on extradition None of the funds authorized to be appro- priated or otherwise made available by this or any other Act may be used to extradite a United States citizen to a foreign country that is under an obligation to surrender persons to the Inter- national Criminal Court unless that foreign country confirms to the United States that ap- plicable prohibitions on reextradition apply to such surrender or gives other satisfactory assur- ances to the United States that the country will not extradite or otherwise transfer that citizen to the International Criminal Court. (b) Prohibition on consent to extradition by third countries None of the funds authorized to be appro- priated or otherwise made available by this or any other Act may be used to provide consent to the extradition or transfer of a United States citizen by a foreign country to a third country that is under an obligation to surrender persons to the International Criminal Court, unless the third country confirms to the United States that applicable prohibitions on reextradition apply to such surrender or gives other satisfac- tory assurances to the United States that the third country will not extradite or otherwise transfer that citizen to the International Crimi- nal Court. (c) Definition In this section, the term ‘‘International Crimi- nal Court’’ has the meaning given the term in section 7401(c) of this title. (Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title VII, § 706], Nov. 29, 1999, 113 Stat. 1536, 1501A–461.) Editorial Notes CODIFICATION Section was formerly set out as a note under section 262–1 of this title. SUBCHAPTER II—AMERICAN SERVICEMEMBERS’ PROTECTION § 7421. Findings Congress makes the following findings: (1) On July 17, 1998, the United Nations Dip- lomatic 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 Stat- ute. (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 doc- uments to implement the Rome Statute, in- cluding Rules of Procedure and Evidence, Ele- ments of Crimes, and a definition of the Crime of Aggression. (4) During testimony before the Congress fol- lowing 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 cer- tain critical negotiating objectives of the United States had not been achieved. As a re- sult, 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 juris- diction even if the country of the individual peacekeeper has not joined the treaty. Thus, the treaty purports to establish an arrange- ment whereby United States armed forces op- erating overseas could be conceivably pros- ecuted 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 obliga- tions and participate in multinational oper- ations, including humanitarian interventions to save civilian lives. Other contributors to peacekeeping operations will be similarly ex- posed.’’. (6) Notwithstanding these concerns, Presi- dent 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 rec- 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