ICC: UN Security Council Resolves Immunity Debate

15 July 2002

Ending a controversy that threatened the future of U.N. peacekeeping, the Security Council on Friday night unanimously adopted a resolution that in effect grants peacekeepers a one-year immunity from investigations by the International Criminal Court. Faced with widespread opposition, the United States had stepped back from its original demand that its peacekeepers be given permanent immunity.

Resolution 1422 permits a single 12-month deferral if the ICC wants to investigate or prosecute a peacekeeper from a state that is not a party to the ICC, a category that includes the United States. This represents a significant step-down from the original U.S. position that all "current or former officials or personnel" in peacekeeping operations be kept beyond the reach of the court.

The United States sparked the controversy in May, when it began demanding immunity from the ICC for its peacekeepers. The debate intensified after the court entered into force July 1.

U.S. Ambassador John Negroponte said he was "pleased" by the resolution because "it offers us a degree of protection for the coming year."

"Some members of this council are members of the International Criminal Court while others, including the United States, are not and never will be," he added. "The United States therefore sought a resolution that would allow those in the court to meet their obligations to it, while it protected those of us who reject the jurisdiction of that institution."

U.K. Ambassador Jeremy Greenstock said the council members "decided they had to make a decision that preserved two very important institutions: the newly born International Criminal Court and its integrity, and United Nations peacekeeping with the full contribution of all major members of the United Nations."

"What is being provided, in effect, if a case arises, is a time-out for the right action to be taken by the member state whose national is accused or indicted," said Greenstock, this month's president of the council. "It's a very different proposition from the blanket immunity that was present in some of the earlier drafts."

On Thursday and Friday, several variations were introduced by the United States, France and Mauritius that tried to finesse language to address both the U.S. demand that peacekeepers from states that are not parties to the ICC be exempt from the court's jurisdiction and the concerns of nearly all other council members that the United States was attempting to use the council to amend a treaty to correct a problem that does not exist.

Specifically, the United States wanted to use Article 16 of the Rome Statute, which allows for a single 12-month deferral of an investigation or prosecution of an individual case, to grant a permanent, blanket immunity that could only be overturned by a vote of the Security Council.

Critics of the U.S. proposal complained about two points: that the U.S. draft resolution provided for a blanket prohibition on investigations while the treaty's intent is to defer on a case-by-case basis; and that it gave the council authority over a prosecution that does not exist in the Rome Statute.

According to Canadian Ambassador Paul Heinbecker, "This is a sad day for the United Nations. We are extremely disappointed in the outcome. We don't think it's in the mandate of the Security Council to interpret treaties that are negotiated somewhere else." Last week, the council held a public debate, requested by Canada, where dozens of countries demonstrated that "the vast majority would not have favored the passage of the resolution we saw today," he added.

But Ambassador Jean-David Levitte of France, which had been holding the hardest line against the United States, said the resolution was "absolutely in line with the Rome Statute. … There is no blanket immunity, even for peacekeepers.… There is no preventive, permanent and general immunity and this for us is what is most important."

This controversy was holding up the renewal of the mandate for the U.N. Mission in Bosnia and Herzegovina, which is training the country's new police force. When the United States failed to get a paragraph exempting peacekeepers inserted into the renewal resolution, it vetoed the resolution on June 30. Since then, UNMIBH had been continuing operations under several short-term extensions. The latest one was due to expire today, the same day the U.N. Mission of Observers in Prevlaka needed its mandate renewed. Prevlaka, a small peninsula on the Adriatic Sea, is claimed by both Croatia and Yugoslavia. The 72-member observer mission, by far the smallest U.N. peacekeeping operation, is monitoring the two countries' activities in the area. No U.S. personnel are assigned to Prevlaka.

The United States had suggested it planned to raise the issue when every peacekeeping mandate came up for renewal unless its generic resolution was adopted. After passing the compromise resolution, the council immediately renewed the mandates for the missions in Bosnia and Prevlaka. The mandates of three more missions expire at the end of July.

"It hasn't been a good day for the court, but we have to be careful not to overstate what the damage was," said Richard Dicker of Human Rights Watch. "The U.S. wanted to amend the statute so that a permanent member of the council could manipulate the docket of the court. They did not succeed in doing that. … At the same time, I would regard this resolution as an unfortunate and unnecessary step."

Dicker said the "legitimacy" of the council was damaged "in operating beyond its mandate." He added, "The commitment of the U.S. government to be acting on moral authority, legitimacy or principle suffered some blows over the last few weeks ... The court's principle of independence was undermined by the action of the action of the council."

Secretary General Kofi Annan had made critical remarks about the U.S. position, most recently in a letter to Secretary of State Colin Powell, saying the U.S. proposal "flies in the face of treaty law." Annan, who was in Africa, released a statement saying he was "deeply gratified" that the council had "resolved the difficult issue," but did not go into detail, saying he expected a full report soon.

Both sides did not see the approval of the resolution as the end of the matter. According to Negroponte, "It is our intent … to seek renewal of this resolution on an annual basis" and during this year to work to "build additional protections" through bilateral agreements with countries where peacekeepers may be deployed. Court supporters suggested they might seek an advisory opinion from the International Court of Justice on the legality of the council's resolution.

"Should the ICC eventually seek to detain any American, the United States would regard this as illegitimate - and it would have serious consequences," Negroponte said. "No nation should underestimate our commitment to protect our citizens."

According to Greenstock, "Nobody on the council … believes that what we have provided for in this resolution will actually ever be triggered, but we had to come to a decision." Heinbecker commented, "We've never thought that the issue was what specifically American peacekeepers would do or wouldn't do. We've always said we've always had full faith in the democratically elected American government …What we've been saying is that it's not appropriate to create two classes of people under international law, one which is for peacekeepers and one rule for everyone else."

Dicker said Negroponte's "tough talk against the International Criminal Court is misguided and ill-conceived. But what it masks is the fact that the American side left these negotiations with considerably less in hand than they intended or insisted on in the outset." He added, "The court's actual jurisdiction has not suffered in that peacekeepers were never intended to be defendants before this court. … This arrangement really has little practical effect."

To underline this argument, the Coalition for the ICC, an organization of some1,000 nongovernmental organizations, issued an analysis of the exposure of U.S. peacekeepers. "In every U.N. peacekeeping mission, the U.S. either has no personnel in the mission, the host state is not a party to the ICC, or the [International Criminal Tribunal for the former Yugoslavia] has primacy. Thus, total U.S. exposure to the ICC is zero in every case," the report said, "Given this analysis, it appears that the intention of the United States is not to protect its own peacekeepers, but to undermine the court."

Jim Wurst
Published by UN Wire © UN Wire 2002

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