12 June 2003 The United Nations Security Council today approved a 12-month extension of immunity that effectively shields UN peacekeepers from potential prosecution by the world's first permanent war crimes tribunal.
Currently, members of UN peacekeeping missions from nations that have not ratified the Rome Statute - the treaty that established the International Criminal Court (ICC) - are immune from investigation or prosecution under a Council resolution adopted unanimously a year ago. Today's decision, adopted by a vote of 12 in favour, with France, Germany and Syria abstaining, extends that exemption each 1 July for another 12 months, unless the Council decides otherwise.
The ICC was inaugurated in early March in The Hague with the swearing in of its 18 judges, and will have jurisdiction over the most serious crimes, including war crimes, genocide, mass murder, rape, torture, and, once defined, the crime of aggression. The Rome Statute entered into force 1 July 2002, and the Court's authority will cover only crimes committed after that date. The Statute, signed by nearly 140 States and ratified by 90, gives the court jurisdiction over individuals no matter the nationality of the accused.
In Council debates last year, the United States said it would not expose its personnel serving in UN peacekeeping missions to the additional risk of politicized prosecutions before the ICC and subsequently, Washington temporarily blocked a full renewal of a UN operation in Bosnia.
A handful of non-Council nations that have ratified the Rome Statute - Canada, Jordan, Liechtenstein, New Zealand and Switzerland - called for today's public meeting, saying that the proposed renewal of the resolution had "implications of direct import" to UN Member States relating to international peacekeeping, fundamental questions of international law, and the Council's role in promoting law and accountability.
Speaking at the outset of the meeting, Secretary-General Kofi Annan told the Council that although he could accept that the request for a one-year extension should be approved this year, since the court is in its infancy, he believes it should not become permanent, and that it violates the Rome Statute. He said he did not believe the request for an extension was necessary because no UN peacekeeper had been "anywhere near committing the kind of crimes" falling under the ICC's jurisdiction, and the case was thus hypothetical and "highly improbable."
Opening the debate, Ambassador Paul Heinbecker of Canada appealed to the Council to keep the exemption from becoming permanent and emphasized that "the ICC is not a court for frivolous prosecutions." He noted safeguards put in the treaty at the US's request to ensure that such prosecutions will be screened out. The ICC's principal purpose was to "try humanity's monsters" - the perpetrators of heinous crimes. It was distressing, therefore, that the Council, purporting to act in the name of Member States, today appeared to come down on the side of impunity, and for the most serious of international crimes.
Ambassador Tim McIVor of New Zealand saw no need for the provision of immunity under the Court, and said the combination of events that would necessitate such action seemed unlikely last year, as they did now. He hoped that now that the Court was fully established, the Council would, in future, draw comfort from its effective and responsible operation and, accordingly, see no need to continue that resolution.
Jordan's Ambassador, Zeid Ra'ad Zeid Al-Hussein, said as a State party to the Rome Statute, Jordan was mindful of the tensions the Council had been through over the last 10 months and did not wish to create further discomfort. Still, he was concerned about how the resolution attempted to elevate an entire category of people to a point above the law. He joined others in the belief that the Council should not be rewriting treaties previously negotiated by all the wider international community.
Ambassador Jeno C.A. Staehelin of Switzerland said it was very worrying to see the Council adopt a resolution that limited the scope of a treaty that was both in force and in full conformity with the UN Charter. He disagreed both with the principle and the modalities of the previous resolution on the issue and stressed that far from contradicting each other, the Court and peacekeeping operations complemented each other. The fight against impunity must become more universal, he said and the more it was pursued in a cooperative spirit, the more effective it would be.
Reiterating his country's objection to the automatic renewal of the "deeply flawed" immunity clause, Ambassador Christian Wenaweser of Liechtenstein said the Council was not competent to adopt and interpret international treaties and, by attempting to do so, weakened the system established by the UN Charter.
Prior to the vote, Pakistan's Permanent Representative, Munir Akram, stressed that UN peacekeepers should not be exposed to any arbitrary or unilateral action by any national or international body. That possibility could further reduce incentives for Member States to offer personnel for peacekeeping forces. No matter how unlikely the circumstances described in the text, he supported its objective. Despite his support of the resolution, he strongly adhered to the position that the Council was not empowered to unilaterally amend or abrogate international treaties and agreements freely entered into by sovereign States.
Iya Tidjani of Cameroon said the ICC undeniably strengthened the ability of existing structures in peacekeeping and international security, primarily the Council itself. It was important that the two bodies - the ICC and the Council - cooperate and complement each other. As the Council prepared to renew its previous resolution, Cameroon would reaffirm that those who had the mission to establish peace and security were obligated to endow peacekeeping with respect for international legality and for life. He hoped the renewal exercise would not become a routine, which would have consequences for the credibility of the ICC and the Council itself.
After the vote, British Ambassador Jeremy Greenstock, said both resolutions were consistent with the ICC Statute and did not undermine the Court nor infringe the integrity of the Rome Statute. The rollover would sustain the ability of the United States to contribute to peacekeeping. The resolution remained deliberately narrow and there was no blanket immunity. Under the circumstances, he regarded its adoption as an acceptable outcome.
James Cunningham of the United States said the exemption in the text was consistent with the UN Charter and the Rome Statute, as well as with the principle of international law that required a State's consent if it was to be bound. The resolution did not affect the parties to the Court or to the Rome Statute itself, as some had suggested. Nor did it elevate an entire category of people above the law. It was not always easy to recruit contributors to peacekeeping. It was important that Member States not add concern about ICC jurisdiction to the difficulty of participating. Moreover, the ICC did not operate in the same democratic and constitutional context as the United States and, thus, had no right to deprive United States citizens of their freedom.
France's Deputy Permanent Representative, Michel Duclos, who abstained in the vote, said the Council's previous resolution on the ICC was not a commitment for automatic renewal, and had stipulated that one-year renewals be continued "only for as long as necessary." The resolution was worded in such a way as to encourage judgement of the advisability of renewing the resolution. The ICC, which now had 90 States parties, had now become a reality, he said. The Court's professionalism would be judged according to the work it did, and the competence of Court members would lend the Court its credibility. Any perception of permanency attached to the resolution could only weaken the Court's authority.
Ambassador Gunter Pleuger of Germany, which also abstained, said the ICC was not an impediment to peacekeeping, but a safeguard. It was an institution designed to prevent impunity and could play an important role in protecting peacekeeping in the execution of their missions. The judges and the Prosecutor of the ICC had, meanwhile, been elected. Germany was confident that experience would show that the ICC was going to work impartially, justly and without politically motivated misuse.
Ambassador Inocencio Arias of Spain said it should not be taken for granted that invoking Article 16 to renew resolution 1422 would become a regular practice. The Council would have to make a study of circumstances that could vary in the future. However, it could still consider possible renewals, if that became necessary in accordance with the resolution.
Syria's Ambassador Mikhail Wehbe, also abstaining from the vote, said there was no justification to renew resolution 1422 this year. Some 11 months had passed since the adoption of the resolution, and no need had arisen during that time requiring the Council to continue giving permanent immunity to one State. He was fully confident that peacekeeping forces in many parts of world were assumed to be above suspicion of perpetrating crimes considered by the ICC as crimes of war or genocide. Renewing resolution 1422 would serve to weaken the Court's role in prosecuting those who had perpetrated heinous crimes.
Rayko Raytchev of Bulgaria said while he was sensitive to all legitimate concerns of countries involved in peacekeeping operations, he continued to support the effective functioning of the ICC as a court with universal jurisdiction to combat and prevent crimes against humanity, war crimes and genocide. While the search for compromise should not lead to the weakening of important treaties, Council members must act in the spirit of compromise and understanding and work to find a solution that was acceptable to all, he said.
Angola's representative, Julio Helder de Moura Lucas, that the scope of resolution 1422 had not affected the present and future development of international criminal law or the ability of the UN to conduct operations to restore international peace and security. Neither had the text created a precedent of interference by the Security Council in the sovereign rights of Member States in their prosecuting capacities of repugnant crimes. The international community must ensure that the ICC was not undermined or weakened and that it fulfilled its mandate.
Paul Zoumanigui of Guinea said the support of his country for the renewal of resolution 1422 should not be considered support for its automatic renewal year after year.
Wang Yingfan of China said his country supported the ICC as an independent, effective and universal court. Today's debate had been useful, and he hoped the parties concerned would study the relevant questions and find appropriate solutions before the issue came up again next year.
The Council's President, Ambassador Sergey Lavrov of the Russian Federation, speaking in his national capacity, said the concerns of some States parties were understandable. He hoped that the practical work of the court, which had just begun, would be successful and not only strengthen the positions of its unconditional supporters, but help dispel questions about its effectiveness and impartiality. He said that, since the ICC was not yet universal, it was essential to bear in mind the concerns of those States that were not yet States parties. The issues discussed today had a direct bearing on the Organization and on the conduct of peacekeeping operations, to which the Secretary-General had drawn attention.