To prohibit cooperation with or assistance to any investigation or prosecution under a universal jurisdiction statute.

May 9, 2003

Mr. ACKERMAN (for himself and Mr. WEXLER) introduced the following bill; which was referred to the Committee on International Relations

To prohibit cooperation with or assistance to any investigation or prosecution under a universal jurisdiction statute.

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 `Universal Jurisdiction Rejection Act of 2003'.

SEC. 2. FINDINGS.

Congress makes the following findings:

(1) On July 16, 1993, the parliament of Belgium adopted a statute, the `Anti-Atrocity Law,' covering grave breaches of the 1949 Geneva Conventions and the Additional Protocols I and II of 1977 to those Conventions. Under the 1993 law, Belgian courts claim to have jurisdiction over violations of humanitarian law under the Geneva Conventions and Additional Protocols, regardless of the `character' of the conflict, the location of the alleged acts, or the nationality of the victim or alleged perpetrator.

(2) In 1999, Belgium's `Anti-Atrocity Law' was amended to include genocide and crimes against humanity to international crimes over which Belgian courts can exercise universal jurisdiction. The 1999 amendments adopted the definition of crimes against humanity used in the Rome Statute of the International Criminal Court, which includes acts such as murder when committed as part of a widespread or systematic attack against civilians.

(3) On June 18, 2001, 23 Lebanese-Palestinian nationals brought a petition to Belgium's Attorney General filing a criminal complaint under Belgium's `Anti-Atrocity Law' against Israeli Prime Minister Ariel Sharon, former Director-General of the Israeli Ministry of Defense Amos Yaron, and `all other persons whether Lebanese or Israeli whose responsibility will be established during the course of the investigation,' alleging their complicity with the Phalangist massacres of Palestinians in the Sabra and Shatila refugee camps in Lebanon in 1982.

(4) The suit against Prime Minister Sharon--

(A) is politically motivated--

(i) since the events concerned took place in 1982, the Belgian `Anti-Atrocity Law' was passed in 1993 and amended in 1999, and the proceedings were only commenced in 2001 after Ariel Sharon became Prime Minister of Israel; and

(ii) since the issue of the Sabra and Shatila massacres was already examined by the Kahan Commission, established by the Government of Israel on September 28, 1982, under section 4 of Israel's Commissions of Inquiry Law of 1968;

(B) is an assault on the internationally accepted concept of state sovereignty since neither the plaintiffs nor the defendants have any connection to Belgium whatsoever, and there is no claim that any crime has been committed on Belgian soil or against Belgian nationals; and

(C) is an assault on the internationally recognized legal principle regarding the inadmissibility of prosecution under ex post facto legislation.

(5) On September 5, 2001, the Belgian Investigating Magistrate decided that he had no jurisdiction to investigate the suit.

(6) On June 26, 2002, the Belgian Court of Appeals ruled the complaint against Prime Minister Sharon, et al., was `not admissible because of the principle of Belgian law that crimes committed in other countries cannot be prosecuted in Belgium unless the author or presumed author has been found in Belgium'.

(7) In January 2003, the Belgian Chief Prosecutor for the Appellate Court (Chamber of Indictments), in the legal opinion he gave to the Supreme Court justices, unambiguously pointed out that the general principle governing universal jurisdiction--`extradite or prosecute'--implies that the defendant must be present in the territory of a prosecuting state and cited the Geneva Conventions, which also require the presence of the defendant. The Belgian Chief Prosecutor for the Appellate Court argued further that conducting such proceedings in absentia would be prejudicial to the rights of the defense, and even warned against rendering the Belgian legal system a `virtual' forum for frivolous prosecutions if complainants were not required to prove a link to Belgium. The Belgian Chief Prosecutor for the Appellate Court further recommended to the Supreme Court that it should reject the suit.

(8) On February 12, 2003, the Belgian Supreme Court (Cour de Cassation) reversed the Belgian Court of Appeals and decided that Belgium indeed has jurisdiction to hear the case against Prime Minister Sharon et al., even in the absence of any link to Belgium. With regard to Prime Minister Sharon, the Belgian Supreme Court decided that further proceedings against him should be postponed, since he presently enjoys immunity due to his position as Prime Minister, but that proceedings may continue against him when he is no longer in office. With regard to former Director-General of the Israeli Ministry of Defense Amos Yaron and any other defendants, the Belgian Supreme Court held that proceedings against them can continue as normal.

(9) On March 18, 2003, seven Iraqi families, together with a nongovernmental organization that opposes current United States policy toward Iraq, filed suit in the Belgian courts under Belgium's `Anti-Atrocity Law' against President George H.W. Bush, Vice-President Richard B. Cheney, Secretary of State Colin L. Powell, and General H. Norman Schwarzkopf (U.S. Army-Ret.), alleging their responsibility for war crimes during the 1991 Persian Gulf War.

(10) On April 2, 2003, the Chamber of Representatives of Belgium, by a vote of 63-48, amended and circumscribed Belgium's `Anti-Atrocity Law' to require a nexus between Belgium and the alleged warcrime or atrocity.

(11) On April 4, 2003, the Senate of Belgium failed to adopt the amendments adopted by the Belgian Chamber of Representatives on April 2, 2003.

(12) On April 5, 2003, the Senate of Belgium approved the amendments adopted by the Belgian Chamber of Representatives on April 2, 2003. As amended, the Belgian `Anti-Atrocity Law' allows the Belgian Minister of Justice, in cases in which the alleged victim is not Belgian and the accused's home state upholds the right of a fair trial, to intervene and refer the complaint to that state. Further, the amended law provides that before a victim can file a case directly in the future, there must be some link with Belgium, whether because the suspect is on Belgian soil, because the alleged crimes took place in Belgium, or because the victim is Belgian or has lived in Belgium for at least three years.

(13) A growing number of countries have adopted universal jurisdiction acts which authorize the national judicial or prosecutorial authorities of a country to investigate, prosecute, and punish genocide, war crimes, acts of torture, violations of human rights, or crimes against humanity not involving any of the nationals or property of that country, or that did not occur on the territory of that country or territory under its control.

(14) Implicit within the very concept of universal jurisdiction is a threat to the sovereignty of the United States. There now exists the possibility that foreign courts claiming universal jurisdiction could entertain suits brought by third-country nationals against members of the Armed Forces of the United States and the President and other senior elected and appointed officials of the United States Government. 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. POLICY OF THE UNITED STATES CONCERNING CLAIMS OF UNIVERSAL JURISDICTION.

It is the policy of the United States to reject any claim of universal jurisdiction made by foreign governments and to refuse to render any assistance or support to any foreign government pursuing an investigation or prosecution under a universal jurisdiction act.

SEC. 4. PROHIBITION ON COOPERATION WITH ANY INVESTIGATION OR PROSECUTION UNDER A UNIVERSAL JURISDICTION ACT.

(a) CONSTRUCTION- The provisions of this section--

(1) apply only to cooperation with investigations and prosecutions under a universal jurisdiction act 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 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 6;

(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 a foreign government of its policy with respect to a particular matter concerning a universal jurisdiction act.

(b) 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 cooperate with, provide support (including financial support) for, or provide any other kind of assistance to any investigation or prosecution by a foreign government under a universal jurisdiction act, including by--

(1) taking any action relating to--

(A) the arrest, extradition, or transit of suspects, or the provisional arrest of suspects; or

(B) the seizure of property, forfeiture of assets, execution of searches and seizures, service of warrants, or other judicial process;

(2) the taking, preservation, or transfer of any evidence or testimony; or

(3) the analysis, sharing, or transfer of relevant information or intelligence.

(d) RESTRICTION ON ASSISTANCE PURSUANT TO MUTUAL LEGAL ASSISTANCE TREATIES- The United States shall exercise its rights--

(1) under any treaty or executive agreement providing for mutual legal assistance in criminal matters,

(2) under any multilateral convention with legal assistance provisions,

(3) under any extradition treaty to which the United States is a party, or

(4) in connection with the execution or issuance of any letter rogatory,

to prevent the use of any assistance provided by the United States under such treaty, agreements, conventions, or letter rogatory in any investigation or prosecution under a universal jurisdiction act.

(d) PROHIBITION ON INVESTIGATIVE ACTIVITIES OF AGENTS- No agent of a foreign principal pursuing any

investigation or prosecution under a universal jurisdiction act may conduct, in the United States or any territory subject to the jurisdiction of the United States, any activity with respect to such investigation or prosecution that relates to a preliminary inquiry, investigation, prosecution, or other proceeding.

SEC. 5. PROHIBITION ON DIRECT OR INDIRECT TRANSFER OF CERTAIN CLASSIFIED NATIONAL SECURITY INFORMATION.

(a) DIRECT TRANSFER- The President shall ensure that appropriate procedures are implemented to prevent the transfer to foreign judicial or prosecutorial authorities of classified national security information that is relevant to any investigation or prosecution under a universal jurisdiction act.

(b) INDIRECT TRANSFER- The President shall ensure that appropriate procedures are implemented to prevent the transfer, to the government of any country that is cooperating with an investigation or prosecution under a universal jurisdiction act, of classified national security information that is relevant to matters under such investigation or prosecution by foreign judicial or prosecutorial authorities, unless that government has provided written assurances to the President that such information will not be made available for any use in such investigation or prosecution.

(c) CONSTRUCTION- The provisions of this section shall not be construed to prohibit any action permitted under section 6.

SEC. 6. AUTHORITY TO FREE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND CERTAIN OTHER PERSONS HELD CAPTIVE FOR INVESTIGATION OR PROSECUTION UNDER A UNIVERSAL JURISDICTION ACT.

(a) AUTHORITY- The President may 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 reason of any investigation or prosecution under a universal jurisdiction act with respect to actions undertaken by that person in an official capacity as a covered United States person or covered allied person, as the case may be.

(b) PERSONS AUTHORIZED TO BE FREED- The authority of subsection (a) applies with respect to the following persons:

(1) Any covered United States person.

(2) Any covered allied person, if the government of the country by reason of which the individual is a covered allied person requests that the authority under subsection (a) be exercised.

(3) Any individual detained or imprisoned for official actions taken while the individual was--

(A) a covered United States person; or

(B) a covered allied person, if the government of the country by reason of which the individual is a covered allied person requests that the authority under subsection (a) be exercised.

(c) AUTHORIZATION OF LEGAL ASSISTANCE- When any person described in subsection (b) is arrested, detained, prosecuted, or imprisoned by reason of any investigation or prosecution under a universal jurisdiction act, the authority under subsection (a) may be used--

(1) for the provision of legal representation and other legal assistance to that person (including, in the case of a person entitled to assistance under section 1037 of title 10, United States Code, representation and other assistance in the manner provided in that section); and

(2) for the provision of exculpatory evidence on behalf of that person.

(d) BRIBES AND OTHER INDUCEMENTS NOT AUTHORIZED- Subsection (a) does not authorize the provision of financial incentives to secure the release from captivity of a person described in subsection (b).

SEC. 7. 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 members of the Armed Forces of the United States 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 a universal jurisdiction act because they are nationals of a country that has adopted a universal jurisdiction act; and

(2) describing the degree to which members of the Armed Forces of the United States engaged in military operations undertaken by or pursuant to that alliance may be exposed to greater risks of investigation or prosecution under a universal jurisdiction act as a result of being placed under the command or operational control of foreign military officers subject to the jurisdiction of a universal jurisdiction act.

(b) DESCRIPTION OF MEASURES TO ACHIEVE ENHANCED PROTECTION FOR MEMBERS OF THE ARMED FORCES OF THE UNITED STATES- Not later than 1 year after the date of the enactment of this Act, the President shall transmit to the appropriate congressional committees a description of modifications to command and operational control arrangements within military alliances to which the United States is a party that could be made in order to reduce any risks to members of the Armed Forces of the United States identified under subsection (a)(2).

(c) SUBMISSION IN CLASSIFIED FORM- The report under subsection (a), and the description of measures under subsection (b), or appropriate parts thereof, may be submitted in classified form.

SEC. 8. WAIVER AND TERMINATION OF PROHIBITIONS OF THIS ACT.

(a) AUTHORITY TO INITIALLY WAIVE SECTIONS 4 AND 5- The President may waive the prohibitions and requirements of sections 4 and 5 with respect to any country if the President, at least 15 days before exercising such waiver 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 government of that country and the United States have entered into a binding agreement that--

(A) prohibits application of the universal jurisdiction act over--

(i) covered United States persons,

(ii) covered allied persons, and

(iii) individuals for acts done while they were covered United States persons or covered allied persons,

with respect to actions undertaken by them in an official capacity, and

(B) ensures that no person described in subparagraph (A) will be investigated, arrested, detained, prosecuted, or imprisoned by reason of any suit, investigation, or prosecution under the applicable universal jurisdiction act.

(b) REPORTS-

(1) REPORTING REQUIREMENT- The President shall, with respect to the government of each country with which the United States has entered into a binding agreement under subsection (a)(2), determine and report to the appropriate congressional committees whether that government--

(A) remains party to, and has continued to abide by, that agreement; and

(B) has taken no steps to investigate, arrest, detain, prosecute, or imprison any person described in subsection (a)(2)(A) pursuant to the applicable universal jurisdiction act.

(2) TIMING OF REPORTS- Reports under paragraph (1) shall be submitted--

(A) not later than 6 months after the date of the enactment of this Act; and

(B) not later than the end of each 1-year period thereafter.

(c) TERMINATION OF WAIVER PURSUANT TO SUBSECTION (a)- Any waiver exercised under subsection (a) with respect to a country shall terminate if and when a report submitted under subsection (b) contains a determination by the President that the government of that country--

(1) is no longer a party to, or has not continued to abide by, the agreement with that government under subsection (a)(2); or

(2) has taken steps to investigate, arrest, detain, prosecute, or imprison any person described in subsection (a)(2)(A) pursuant to the applicable universal jurisdiction act.

SEC. 9. NONDELEGATION.

The authorities vested in the President by section 8 may not be delegated by the President pursuant to section 301 of title 3, United States Code, or any other provision of law.

SEC. 10. DEFINITIONS.

In this Act:

(1) UNIVERSAL JURISDICTION ACT- The term `universal jurisdiction act' means a statute of a foreign country that authorizes its judicial or prosecutorial authorities to investigate, prosecute, and punish genocide, war crimes, acts of torture, violations of human rights, or crimes against humanity that--

(A) at the time of their actual or alleged occurrence, were not committed by or against the citizens or residents of that country or their property;

(B) did not occur on the territory of that country or territory under its control; or

(C) are otherwise prosecutable by an ad hoc international criminal tribunal established by the United Nations Security Council for the purpose of prosecuting such acts.

(2) AGENT OF A FOREIGN PRINCIPAL- The term `agent of a foreign principal' has the meaning given that term in section 1 of the Foreign Agents Registration Act of 1938, as amended (22 U.S.C. 611).

(3) 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.

(4) 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.

(5) COVERED ALLIED PERSON- The term `covered allied person' means any military personnel, elected or appointed official, or other person employed by or working on behalf of the government of a NATO member country, a major non-NATO ally, or Taiwan, for so long as that government has not adopted a universal jurisdiction act.

(6) COVERED UNITED STATES PERSON- The term `covered United States person' means any member of the Armed Forces of the United States, any elected or appointed official of the United States Government, and any other person employed by or working on behalf of the United States Government.

(7) 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.

END