SECURITY COUNCIL REQUESTS ONE-YEAR EXTENSION OF UN PEACEKEEPER IMMUNITY FROM INTERNATIONAL CRIMINAL COURT
SECURITY COUNCIL REQUESTS ONE-YEAR EXTENSION OF UN PEACEKEEPER IMMUNITY FROM INTERNATIONAL CRIMINAL COURT
4772nd Meeting (AM)
SECURITY COUNCIL REQUESTS ONE-YEAR EXTENSION OF UN PEACEKEEPER
IMMUNITY FROM INTERNATIONAL CRIMINAL COURT
Adopts Resolution 1487 (2003) by 12-0-3 (France, Germany, Syria);
Secretary-General Says Continued Annual Adoption Could Undermine Court, Council
The Security Council today requested immunity from prosecution by the International Criminal Court (ICC) for United Nations peacekeepers from countries’ not party to the Court’s Statute for a 12-month period beginning 1 July, extending an exemption originally requested in July last year.
Acting under Chapter VII of the United Nations Charter, the Council, through the adoption of resolution 1487 (2003) by 12 votes in favour with 3 abstentions -– France, Germany and Syria -– expressed its intention to renew that request for further 12-month periods “for as long as might be necessary”. It further decided that Member States not take any action inconsistent with that exemption.
The first resolution on the question, United States-led text 1422, was adopted in July 2002. Prior to its adoption, the Council had held a series of votes on the question of whether or not to extend the mandate of the United Nations Mission in Bosnia and Herzegovina (UNMIBH). The extension was initially blocked by the United States, because it feared “political prosecutions” of its peacekeepers before the ICC, whose jurisdiction it does not accept. The mandate for the Bosnia Mission was not extended until after adoption of resolution 1422. The Court’s Rome Statute came into force on 1 July of that year and the Court itself was inaugurated in early March this year, with jurisdiction over such crimes as genocide and mass murder. The Statute has been signed by nearly
140 States and ratified by 90.
Prior to today’s action, Secretary-General Kofi Annan told the Council he had felt it was reasonable to adopt resolution 1422 to give Member States more time to study the Rome Statute, which had at that time only recently come into effect. He could also accept that the Council might find it necessary to renew the resolution for a further 12 months, since the Court was still in its infancy. He hoped, however, that it would not become an annual routine, because that would undermine the authority of the Court, the Council and the legitimacy of United Nations peacekeeping.
He said he had understood that the Council was acting in good faith to make it possible for peace operations to continue, but he had not believed that the request for an exemption was necessary. In the entire history of the United Nations, no peacekeeper or any other mission personnel had been anywhere near the kind of crimes falling under the jurisdiction of the ICC. Also, people serving in
United Nations peacekeeping missions remained under the jurisdiction of their home States. Finally, under article 17 of the Rome Statute, no case was admissible in the ICC if it already had been or was being investigated or prosecuted by a State which had jurisdiction over it, unless that State was unwilling or unable to genuinely investigate or prosecute.
The representative of the United States said his country yielded to none in its historic leadership in terms of jurisdiction and accountability for war crimes. The exemption in the text was consistent with the United Nations 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.
The Council members who abstained -- France, Germany and Syria –- argued that the ICC was not an impediment to peacekeeping, but a safeguard and that there was no justification to renew the resolution. France’s representative said that last year he and other members had supported the one-year exemption, because of the danger of extending a vital peacekeeping mission and because of the concerns of the United States. Those two elements now belonged to the past. Developments had since occurred that seemed to meet the concerns that had been expressed by the United States. It was also highly unlikely that a case would arise that would trigger the implications of resolution 1422.
Many speakers in today’s public debate echoed that position, emphasizing that safeguards had been built into the Rome Statute to prevent politicized prosecutions and that all peacekeepers should be subjected to the same rules and regulations. Canada’s representative, one of five States who had requested today’s debate, said that he respected the right of States not to become parties to the ICC, but believed that the resolution before the Council today was unnecessary and counterproductive. Canada had no desire to see its citizens, or those of any other peacekeeping country, subjected to political harassment in judicial forums, but the ICC was “not a court of frivolous investigations and prosecutions”. Its extraordinary array of safeguards and checks and balances screened out any frivolous claims that might be submitted.
Statements were also made by the representatives of New Zealand, Jordan, Switzerland, Liechtenstein, Greece (on behalf of the European Union), Iran, Uruguay, Brazil, Malawi, Peru, Trinidad and Tobago, Argentina, South Africa, Nigeria, Democratic Republic of the Congo, Netherlands, Pakistan, Cameroon, United Kingdom, Spain, Bulgaria, Angola, Guinea and China. The Security Council President for June, Sergey Lavrov (Russian Federation), spoke in his national capacity.
The meeting began at 10:15 a.m. and adjourned at 1:01 p.m.
When the Security Council met this morning in a public meeting to consider the proposed renewal of the provisions of Security Council 1422 (2002), it had before it a letter dated 6 June from the Permanent Representatives of Canada, Jordan, Liechtenstein, New Zealand and Switzerland to the United Nations addressed to the Security Council President (document S/2003/620).
The letter requests that the Council convene such a public meeting, saying that the proposed renewal has “implications of direct import” to Member States, including those that are parties to the Rome Statute of the International Criminal Court (ICC), relating to international peacekeeping, fundamental questions of international law and the role of the Council in promoting law and accountability.
Under resolution 1422 (2002), the Council had requested the Court not to commence a case against any personnel in a United Nations peacekeeping operation from a State not party to the Statute for a 12-month period beginning 1 July 2002.
Prior to adoption of that text, the Council held a public meeting on 10 July 2002 to debate the legal exposure of United Nations peacekeepers under the ICC. Most of the 39 speakers expressed concern about the future of United Nations peacekeeping, saying that hasty decisions would cause damage not only to the rule of international law, but also to the very credibility of the Council. Many pointed out that the ICC had sufficient safeguards against unwarranted and politically motivated prosecutions.
Earlier, the Council had held a series of votes on the question of whether or not to extend the mandate of the United Nations Mission in Bosnia and Herzegovina (UNMIBH). Its extension was initially blocked by the United States because of its concern about the risk of “political prosecutions” of its peacekeepers before the ICC, whose jurisdiction it does not accept. The Mission’s mandate was extended on 12 July 2002 after adoption of resolution 1422 (2002).
Also before the Council is a draft resolution (document S/2003/630) which reads, as follows:
“The Security Council,
“Taking note of the entry into force on 1 July 2002, of the Statute of the International Criminal Court (ICC), done at Rome 17 July 1998 (the Rome Statute),
“Emphasizing the importance to international peace and security of United Nations operations,
“Noting that not all States are parties to the Rome Statute,
“Noting that States Parties to the Rome Statute have chosen to accept its jurisdiction in accordance with the Statute and in particular the principle of complementarity,
“Noting that States not Party to the Rome Statute will continue to fulfil their responsibilities in their national jurisdictions in relation to international crimes,
“Determining that operations established or authorized by the United Nations Security Council are deployed to maintain or restore international peace and security,
“Determining further that it is in the interests of international peace and security to facilitate Member States’ ability to contribute to operations established or authorized by the United Nations Security Council,
“Acting under Chapter VII of the Charter of the United Nations,
“1.Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2003 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise;
“2. Expresses the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12-month periods for as long as may be necessary;
“3.Decides that Member States shall take no action inconsistent with paragraph 1 and with their international obligations;
“4.Decides to remain seized of the matter.”
KOFI ANNAN, Secretary-General of the United Nations, noted that the Council had requested in resolution 1422 that the ICC “for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution” of any case “involving current or former officials or personnel from a contributing State not a party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation”, unless the Council decided otherwise. In making that decision, the Council had relied on article 16 of the Rome Statute, which was not intended to cover such a sweeping request, but only a more specific request relating to a particular situation. But, he accepted that the Council was acting in good faith and the purpose was to make it possible for peace operations to continue.
He wished to place on record, however, that he did not believe the request was necessary. In the entire history of the United Nations, no peacekeeper or any other mission personnel had been anywhere near the kind of crimes falling under the jurisdiction of the ICC. The request, therefore, dealt not only with a hypothetical case, but with a highly improbable one. Also, people serving in United Nations peacekeeping missions remained under the jurisdiction of their home States. Whenever one of them was accused of committing a crime during a mission, that person was immediately repatriated and dealt with by the national courts of his or her own country. Finally, under article 17 of the Rome Statute, no case was admissible in the ICC if it already had been or was being investigated or prosecuted by a State which had jurisdiction over it, unless that State was unwilling or unable to genuinely investigate or prosecute.
He assumed that, in a case where a person serving in an operation established or authorized by the Council was accused of the kind of crime that fell under the jurisdiction of the ICC, the home State of that person would be most anxious to investigate that accusation and, if the investigation showed that there was a pima facie case, to prosecute that person. The case would then not be admissible in the ICC. All must hope, therefore, that the resolution being considered today would be without effect, since the situation it was designed to guard against would never arise.
He felt it reasonable to adopt resolution 1422 to give Member States more time to study the Rome Statute. He could also accept that the Council might find it necessary to renew the resolution for a further 12 months, since the Court was still in its infancy. He hoped, however, that it would not become an annual routine, because that would undermine the authority of the Court, the Council and the legitimacy of United Nations peacekeeping.
PAUL HEINBECKER (Canada) said that he respected the right of States not to become parties to the ICC, but believed that the resolution before the Council today was unnecessary and counterproductive. Canada also had no desire to see its citizens, or those of any other peacekeeping country, subjected to political harassment in judicial forums, but it was important to emphasize that the ICC was “not a court of frivolous investigations and prosecutions”. In fact, its extraordinary array of safeguards and checks and balances screened out any frivolous claims that might be submitted. Many of those safeguards had been proposed by the United States and were willingly incorporated by other States.
After reviewing those safeguards in detail, he respectfully submitted that Council action was not needed to address the risk of frivolous prosecutions. If legitimate concerns remained, he would be more than prepared to see them addressed in an open dialogue, based on the actual safeguards and the actual risks and rewards of international justice. Given the safeguards and the principle of complementarity, the only way that resolution could come into operation was both where a peacekeeper engaged in the most serious international crimes and national legal systems refused to investigate or prosecute the crimes.
The ICC’s principal purpose was to “try humanity’s monsters”, the perpetrators of heinous crimes. He regarded the Court as a centrepiece in the effort to end impunity for genocide and for other mass crimes. He saw its deterrent character as crucial to sparing future potential victims. That was a logical and necessary extension of previous international tribunals, such as those at Nuremberg, The Hague and Arusha –- albeit with more safeguards and even higher standards of due process. He, therefore, called on Council members to support that effort and to help provide greater security for the innocent. As a minimum, he asked the Council to, at least, refrain from hindering the collective efforts of States parties to promote law and accountability.
He said that the resolution was one of several initiatives over the last year aimed at securing exemptions for some nationalities from the ICC. He had watched those developments with concern, not because he wished to see persons of any particular nationality brought before the Court, but because claims to exemption, by any State, entailed a rejection of some very important and well-established principles of international law. Whether one chose to be a party to the ICC Statute or not, there should be no doubt that the jurisdictional reach of the Court was circumscribed and that its approach was entirely founded in established law. It was beyond question that States had jurisdiction over crimes committed on their own territory.
It was also clear that States might exercise their jurisdiction over international crimes individually, through national trials, or jointly, through international trials, he continued. That principle was established at Nuremberg and affirmed many times since. He was also concerned about the legitimacy of the action recommended by the Council. Under the United Nations Charter, Member States had entrusted certain powers under certain conditions to the Council, in order to maintain international peace and security. The exercise of those powers was a solemn responsibility. The Council had repeatedly affirmed that impunity was a threat to peace and security and that accountability for international crimes contributed to stability. It was distressing, therefore, that the Council, in purporting to act in the name of Member States, appeared, in the resolution, to come down on the side of impunity, and for the most serious of international crimes.
TIM MCIVOR (New Zealand) said the reasons against the adoption of resolution 1422 advanced by his country last year -– the use of specific procedures laid down in article 16 of the Rome Statute to provide immunity from International Criminal Court’s jurisdiction for personnel engaged in United Nations mandated or authorized operations -– remained valid today. New Zealand saw no need for such immunity and the combination of events that would necessitate such action seemed unlikely last year, as they did now.
He, therefore, regretted the need now to continue that resolution for a further year. However, now that the Court was fully established, he hoped the Council would, in future, draw comfort from its effective and responsible operation and, accordingly, see no need to continue that resolution.
ZEID RA’AD ZEID AL-HUSSEIN (Jordan) said the ICC now had an address, a leadership and core personnel, and the number of States who had acceded to the Rome Statute continued to rise. The Court had been the recipient of over 200 letters and claims and would, in due course, begin to function fully, once the Registrar had been appointed and the Office of the Prosecutor was staffed. It was in that context that the Council now wished to review resolution 1422.
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. While it was likely the draft resolution before the Council would be passed shortly, the Council should, in due course, reconsider repeating taking such a decision. He was concerned over how the resolution had attempted to elevate an entire category of people to a point above the law.
The resolution was a misapplication of article 16, and a contravention of the Statute, he said. The resolution also reversed the default position established by the Rome Statue over which body –- the Court or the Council –- had first treatment of individual criminal cases with relevance to “current or former officials or personnel (from a non-State party) over acts or omissions relating to a United Nations established or authorized operation”. He joined others in believing that the Council should not be rewriting treaties previously negotiated by all States comprising the entire international community.
The ICC would soon become the international community’s permanent conscience, he said. It would reside permanently in the background, deferring to the national jurisdictions of those States willing and able to investigate claims and prosecute those accused of perpetrating the offences enumerated in the Rome Statute, and only itself exercising jurisdiction when those States who should be taking up their responsibilities were unwilling or genuinely unable to do so.
JENO C.A. STAEHELIN (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 United Nations Charter. He disagreed both with the principle and the modalities of resolution 1422 (2002). Far from contradicting each other, the Court and peacekeeping operations complemented each other. If necessary, article 16 of the Rome Statute enabled the Security Council to allow for a peacekeeping process by deferring criminal prosecution, but it was conceived for application on a case-by-case basis.
He stressed that article 16 could not be used as a basis for granting blanket immunity for all peacekeepers, which presupposed that the ICC was, itself, an obstacle to peace. The preamble to the resolution noted that States not party to the Rome Statue would continue to fulfil their responsibilities in their national jurisdictions in relation to international crimes. Whenever States actually did fulfil their responsibilities in that regard, the ICC did not have jurisdiction. The resolution clearly undermined an historic development. The fight against impunity must become more universal. The more it was pursued in a cooperative spirit, the more effective it would be. That was why Switzerland deplored the adoption and, even more, the prospect of renewal of the text.
CHRISTIAN WENAWESER (Liechtenstein) reiterated his country’s objection to the automatic renewal of resolution 1422 for a further year because it was deeply flawed and went beyond the Council’s authority.
First, he continued, because the resolution invoked Chapter VII of the Charter without making a determination of a threat to international peace and security. Second, it purported to be consistent with article 16 of the Rome Statute, while, in fact, violated both the letter and spirit of that provision. Third, it undermined the international treaty-making system. The Security Council was not competent to adopt and interpret international treaties and, by attempting to do so, weakened the system established by the United Nations Charter.
He noted that the adoption of the resolution had raised serious questions about the role of the Security Council; hence, its renewal was the worst possible answer to those questions. The greatest risk lay in the possibility of the relevance of such a renewed resolution in a concrete case that might arise under the Court’s jurisdiction, which would necessitate the Court’s dealing with the legality of the Council’s decision. Such a situation, he stated, would upset the relationship between the Court and the Council, one of the most carefully balanced aspects of the Rome Statute. He said the Council would, thus, do itself a disservice by renewing resolution 1422 at a time when many critics openly questioned its relevance and, thus, that of the United Nations as a whole.
ADAMANTIOS TH. VASSILAKIS (Greece), on behalf of the European Union, said that, from the outset, the Union had been strongly supportive of the early establishment of the Court and it remained firmly committed to its effective functioning. In the “Common Position”, adopted by the European Union Council of Ministers in June 2001 and reaffirmed in June 2002, the Union pledged to promote the widest possible participation in the Statute, to share its experiences of implementation and to provide technical assistance. The Union was determined to adopt initiatives to promote the dissemination of the values, principles and provisions of the State and related instruments.
He said that concerns expressed by the United States about politically motivated prosecutions were unfounded, since those concerns had been met and sufficient safeguards against such prosecutions had been built into the Statute. Indeed, the latter contained substantive safeguards and fair trial guarantees to ensure that such a situation would never arise. The Union could now, in addition, point to the high moral character and integrity of the 18 judges and the Prosecutor of the Court. Furthermore, the Statute incorporated the principle of complementarity, which placed the primary responsibility for investigation and prosecution with domestic jurisdictions. The Court might assume responsibility as a last resort, and only when a State was unable or unwilling to do so.
The Union reiterated its appreciation to the United States for its important contribution to peacekeeping missions around the world, he said. It also commended individual peacekeepers for their hard work and dedication in trying to maintain and restore peace and stability in risky, dangerous and volatile environments. The ICC was no threat to peacekeeping, but was a welcome safeguard to “protect” peacekeepers against serious crimes. Resolution 1422 (2002) states that the Council intended to renew the request contained in it for as long as it might be necessary. Clearly, any necessity to do so should be evaluated in light of the positive effects that the ICC would have for peacekeeping. Adherence to the Rome Statute should be seen as an indication of complete trust in the way peacekeepers operated under their mandate and, at the same time, in the need to properly investigate any allegations of criminal conduct on their part, if need be.
He said that the inclusion in the resolution of the phrase “renew the request ... under the same conditions each 1 July for further 12-month periods for as long as may be necessary” could not be interpreted as permitting the automatic renewal of that resolution without taking into account the specific conditions under which such a request was being made. The Union firmly believed that an automatic renewal of the text would undermine the letter and spirit of the Statute and its fundamental purpose. He urged all Council members to do their utmost to reach a solution that would preserve the integrity of the Rome Statute and ensure the unimpeded continuation of peacekeeping operations.
JAVAD ZARIF (Iran) said his delegation was concerned about resolution 1422 because it was legally disputed and questioned the authority of a treaty-based international body, the ICC. The resolution sought to prevent any State from surrendering to the ICC nationals of States not party to the Rome Statute, who were accused of genocide, crimes against humanity or war crimes committed in connection with a United Nations established or authorized operation. As such, it unduly interfered with the Statute of the ICC, which had been agreed among States in accordance with the Law of Treaties. That Law recognized that only parties to a treaty are competent to interpret or amend it.
Moreover, he continued, the international community was cognizant of the fact that resolution 1422 could only be adopted after the threat of vetoing the extension of UNMIBH, and also the threat to do the same with regard to other peacekeeping mandates that were to come up for renewal, thus, jeopardizing the whole United Nations peacekeeping system. He understood that the Council should act responsibly and in a way that did not place peacekeeping missions in jeopardy. He also believed, however, that salvaging the peacekeeping system should not come at the expense of the Rome Statute. He regretted that a unilateral approach, which was founded on a misplaced notion of placing one country above the law, had created an untenable and unsound situation in the Council and in international relations, in general.
FELIPE PAOLILLO (Uruguay) said the vast majority of governments and peoples around the world had welcomed the entry into force of the Rome Statute last July, to which Uruguay was a party, and the establishment of the ICC at the beginning of the year. Those were clear messages to all that a new era had begun. Now, those responsible for the most serious crimes would be prosecuted, and there was the prospect that those crimes would not again be committed, at least not on such a scale and with such frequency. The existence of the ICC was a powerful deterrent, discouraging future potential criminals from committing the crimes listed in the Statute.
He said he was deeply concerned, therefore, about the possibility of renewing resolution 1422 (2002). It affected the Court’s jurisdiction and, consequently, prevented its full functioning. Apart from its very questionable legal grounds, a decision establishing that no investigations or prosecutions should begin or proceed with respect to certain categories or classes of people seemed unnecessary. The Statute provided enough guarantees to ensure that decisions taken by the Court would not be politically motivated.
The principles governing the functioning of the Court and the prosecutions, particularly of non-retroactivity and the complementary nature of the jurisdiction of the Court with respect to national jurisdiction, would guarantee its fairness, he said. Resolution 1422 (2002) had introduced a “curious type of discrimination”. The 800 Uruguayan nationals, both civilian and military personnel, currently taking part in various United Nations peacekeeping operations, had accepted the consequences that could stem from commission of criminal acts described in the Rome Statute. He saw in that discrimination among peacekeepers a “deep injustice”. All peacekeepers “must be subject to the same rules and work under the same Statute”, he said.
ISAAC LAMBA (Malawi) said the ICC remained the single most important, intergovernmentally agreed legal framework to end impunity for all manner of war crimes and other crimes against humanity. Without a credible intergovernmental mechanism to correct and punish the wrongs of man against fellow man, such as offered by that permanent criminal tribunal, global peace and stability could not be assured, and anarchy would continue to reign supreme in politically troubled flashpoints, such as Africa, where the vast majority of United Nations peacekeeping missions were deployed.
Resolution 1422 was likely to reverse the positive gains and historical milestones of the Rome diplomatic conference, and was against the spirit of the Rome Statute, he continued. The resolution weakened an earnest global collective crusade against the recurrence of the humanitarian catastrophes that had occurred in such places as Cambodia, the Balkans, Rwanda, Sierra Leone and other parts of Africa. Renewing the resolution would erode the newly emergent global political will to promote the momentum created by the ICC to fight repugnant crimes against humanity. Resolution 1422 would also have inimical effects on international law, international humanitarian law and the spirit of multilateralism in international affairs, including the criminalization of acts and behaviours in armed conflict that confounded human conscience. If it passed once again, nothing would stop it from evolving into a permanent fixture on the Council’s rule-making platform.
MARIA LUIZA RIBEIRO VIOTTI (Brazil) said she was convinced that the concerns of some Member States that the aims of the ICC would be distorted and, thereby, lead to politically motivated accusations against their nations had already been addressed by the Rome Statute. It was clear the ICC provided the necessary checks and balances to prevent possible abuses and politically motivated misuse of jurisdiction.
In that regard, she continued, efforts to secure broad immunities from the potential jurisdiction of the Court were unnecessary. Maintenance of international peace and security and the repression of serious crimes could not be viewed as conflicting objectives. Peacekeeping operations and the institution of the ICC were two important pillars for the achievement of United Nations goals. Thus, her country was ready to work for alternative satisfactory solutions that were legally sound and preserved the integrity of the Statute.
OSWALDO DE RIVERO (Peru), on behalf of the Rio Group, said that the international community needed international law. There was a collective obligation to fight crimes of genocide, crimes against humanity, and crimes of war. The ICC was established to tackle those most serious offences to humankind. Decisions of the Council, in turn, should strengthen international cooperation in that regard, in order to foster respect for human rights, as well as for international justice. Those were the fundamental aims of both the United Nations Charter and the Rome Statute.
Regarding renewal of resolution 1422 (2002), he said that the Rio Group understood that, if the text was renewed, the exception contained therein should not become a “permanent” one. The Council, in accordance with its obligation to maintain international peace and security, should also contribute to strengthening the ICC. The Group considered that the relationship between the Council and the Court should be one of cooperation, as their responsibilities and duties to humankind were completely complementary. Thus, the Group would continue to work to promote the strengthening of that relationship.
ANTHONY DAVID EDGHILL (Trinidad and Tobago) said his country was firmly committed to the ICC and the Rome Statute, and was concerned by any measures that could threaten its integrity. The international community had created the ICC as an independent tool to bring the perpetrators of shocking crimes, such as genocide and crimes against humanity, to justice. It was also intended to be an avenue of justice for the victims of those crimes and their families.
As a party to the Rome Statute, Trinidad and Tobago was concerned about renewing resolution 1422 for another year for various reasons. The resolution was inconsistent with the Rome Statute, contradicting the true nature of article 16, which had not been intended to grant immunity to certain States. The Statute brought together the diverse interests and concerns of Member States, was meant to be used for fair and warranted prosecutions, and not politically motivated. The Court would only act in very limited circumstances and only after observing the numerous safeguards in the Statute. He urged Council members to uphold international law and the United Nations Charter.
ARNOLDO M. LISTRE (Argentina) said that today’s topic involved two essential elements of international relations, namely, peace and justice. The ICC was already in operation, and its judges had been elected and its Prosecutor would soon assume his duties. The international community had proceeded with the Court’s establishment and had set it up with speed and effectiveness. The history of the negotiations, as well as the Statute’s ensuing balanced provisions, clearly showed the aim of reconciling the interests of the international community with the objectives of sovereignty and security. Its norms also reflected the willingness to establish an international justice system that was compatible with the system of collective security.
Referring to resolution 1422 (2002), he said he hoped its renewal would not become a permanent feature of Council action, as that would neutralize the status of the Court. The Statute offered the necessary guarantees to ensure that the Court would only exercise cases in its jurisdiction after, first, allowing national jurisdiction to decide the issue. Thus, he could not explain the fears or doubts of a country that had trust in the effectiveness of its own legal system. If a case finally came to the ICC, he was sure that the judges and the Prosecutor would carefully consider it and prevent the slightest suspicion of political motivation. The Rome Statute had achieved a delicate balance and had taken into consideration the concerns of States.
DUMISANI KUMALO (South Africa) said that the Council’s adoption of resolution 1422 had cast a shadow over the integrity of the Rome Statute, the ICC and the application of international law. A year later, the Council had been called upon to agree to renew the resolution for a further 12 months -– an action that would allow the situation to continue and might eventually lead to the resolution being extended indefinitely. That, in his view, would be unacceptable. He called on all Council members to refrain from allowing that situation to continue.
The establishment of the ICC was undoubtedly one of the major achievements of the international community in its campaign against impunity and the promotion of international criminal justice. All Member Sates had participated in the process leading to the adoption of the Rome Statute and in the work of the Preparatory Commission that resulted in the Court becoming a reality. The fact that there were currently 90 States parties attested to the widespread support the Court enjoyed and the number of pending ratifications clearly indicated the Court’s universal acceptance.
Creating the Court was evidence of an emerging norm in international law ensuring that those accused of the most serious crimes were prosecuted by competent national authorities, or handed over to a duly instituted international court. He hoped the Council would actively promote that emerging norm.
ARTHUR MBANEFO (Nigeria) said renewing resolution 1422 could undermine the integrity of the ICC and impede the implementation of the rule of law and international humanitarian law. Nigeria felt that invoking article 16 of the Rome Statute to renew the resolution would be unnecessary. He urged Council members to exercise restraint in using the article, and stressed that it should be invoked constructively and only to further intended cooperation between the Council and the ICC.
Just as international terrorism was an affront to civilized conduct and a threat to international peace and security, so were impunity and crimes against humanity an affront to world conscience, as well as a threat to international peace and security, he said. As the Council was proudly leading the international community in the global fight against international terrorism, so it should also lead in fighting impunity by helping to nurture the newly established ICC. That role was inescapable, given that it had primary responsibility for the maintenance of international peace and security. The ICC offered the international community a unique opportunity to write the final chapter of global resentment against impunity and crimes against humanity.
ZENON MUKONGO NGAY (Democratic Republic of the Congo) said that the question of the renewal of 1422 (2002) called into play the importance of the ICC, his country’s commitment to the Court, and the advisability and/or necessity of renewing that resolution. The ICC was, for his country, a new and permanent instrument in the judicial system. It was an historic step that had sounded the death knell for the Stalinist idea whereby one death was tragic, and a million deaths an statistic. For humankind, the ICC was a victory against impunity for the most serious crimes. The concept of combating impunity was not at all contrary to the Council’s mission. Indeed, it complemented the maintenance of international peace and security.
He said it was an illusion to think that a society could achieve peace and stability without trying to shed light on crimes committed, to bring the perpetrators to justice and to pay restitution to the victims. The tendency to create ad hoc courts seemed to be diminishing. Countries like his, where grave crimes were still being committed, must pursue such crimes in their own courts, but on the basis of complementarity, which had been ensured in the ICC Statute. The ICC was a reflection of dedication to freedom, democracy and respect for human rights and fundamental freedoms. His country had been one of the 120 States that had voted in favour of the text on the ICC at the end of the July 1998 conference in Rome.
Continuing, he said that on 11 April 2002 his Government had offered the sixtieth ratification of the Rome Statute. He was wondering whether it was really necessary to renew resolution 1422 at this time, when his generation wanted to play its role in helping the first international jurisdiction do its job to prevent the most revolting crimes. The Court should be free to prove itself by pursuing those who had been massacring civilian populations or engaging in human rights violations and breaches of international humanitarian law. The Court should play the largest role possible, for the sake of deterrence. The Court would be a true source of hope for future generations and a giant step towards universalizing human rights and the primacy of international law.
DIRK JAN VAN DEN BERG (Netherlands) stressed that article 16 of the Rome Statute should only be invoked in conformity with the Statute. The article read that “no investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect”.
Continuing, he said the article allowed deferrals on a case-by-case basis for a limited period of time when a threat to, or breach of, peace and security had been established by the Council under Chapter VII of the United Nations Charter. In his view, article 16 did not sanction blanket immunity with respect to future events. Repeated renewal of resolution 1422 undermined the letter and spirit of the ICC Statute. Adopting the resolution today should not be interpreted as moving in the direction of automatic renewal of resolution 1422.
Action on Text
Speaking before the vote, MUNIR AKRAM (Pakistan) said that the issue under consideration in the draft resolution was an important one for all countries. Pakistan was committed to upholding the rule of international law, in accordance with United Nations Charter. It also fully supported the need to provide justice to victims of crimes against humanity, genocide and other serious violations of international humanitarian law. It was only, thus, that the rule of law could be established in international relations. Such crimes must not enjoy impunity. Where those were committed, especially in conditions of foreign occupation or alien domination and where State terrorism was utilized to suppress legitimate freedom struggles, those crimes must be punished. Actions should be taken first by the national authorities. Where all such measures had been exhausted or were inactive, recourse could be made available to international mechanisms.
He said that it was in that spirit that he had voted in favour of the Rome Statute in 1998. Hopefully, the Court’s existence would act as a deterrent, but, unfortunately, the Rome Statute had not provided for reservations by countries. That might have ensured wider adherence. In fact, there were several provisions to which his country had reservations. Pakistan was the largest contributor presently to United Nations peacekeeping operations. United Nations 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.
Pakistan reserved the right to adjudicate peacekeeping cases, he said. That was the primary concern, which had inspired the present draft resolution. No matter how unlikely the circumstances described in the text, he supported its objective. At the same time, he understood the reservations regarding the renewal of resolution 1422 (2002). Annual renewal might be avoided in the future by separate arrangements. 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 (Cameroon) said his country had been involved in the negotiations and drafting of the Rome Statute. He stressed that 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.
Last year, the Council had a lengthy debate on resolution 1422, and there was a real danger that gains made through peacekeeping operations might be obliterated. At a time when the Council was about to renew that resolution, his country would like to 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.
The Council then put the resolution to a vote. Resolution 1487 (2003) was adopted by 12 in favour to none against, with 3 abstentions (France, Germany, Syria).
JEREMY GREENSTOCK (United Kingdom), speaking after the vote, said that his country remained a strong supporter of the ICC. He did not share concerns about the Court, as those were still firmly held, and implications for mandated and authorized operations remained the same as they were last year. He regarded “1422” as an exceptional measure. It was not permanent nor was it automatically renewable, but was subject to scrutiny in the Council, at least annually. He looked forward to the day when it or its successor would no longer be required.
He said, however, that resolutions 1422 (2002) and 1487 (2003) 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 (United States) welcomed the Council’s renewal for another year of that painstakingly put together resolution 1422. Like any compromise, the resolution did not address all concerns, but it balanced divergent positions and helped ensure against any undermining of peace operations. The exemption it contained was consistent with the United Nations Charter and the Rome Statute. It was also consistent with the principle of international law, that required a State’s consent if it was to be bound. The resolution did not, in any way, 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. The ICC was not the law.
He said that the provisions of the resolution were as relevant and necessary as those of 1422 were one year ago. Accountability was important if the Council was to maintain peace and stability. 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. He had heard the argument that the resolution was not necessary. He did not agree. One instance of the ICC attempting to exercise jurisdiction would have a serious impact over future peace operations. He was disappointed that not every Council member shared his view.
The United States yielded to no country in its historic leadership in terms of jurisdiction and accountability for war crimes, he stressed. It had been an original participant in every international effort to adjudicate against war crimes and crimes against humanity. Unlike the ICC, other tribunals were accountable to the Security Council. The ICC was not a United Nations institution. It was vulnerable at any proceeding to politicization. No adequate check against that had been provided in the Rome Statute. He had already seen in other forums the potential for politically motivated charges, including over the recent Iraq hostility.
His primary concern was that United States citizens would find themselves under the Court’s jurisdiction, even though their country was not a party. The power to deprive a citizen of his or her freedom was an awesome thing. The ICC did not operate in the same democratic and constitutional context as the United States and, therefore, did not have the right to deprive United States citizens of their freedom. The ICC was a fatally flawed institution. He understood that the positions on the Court would not change in the foreseeable future. Everyone needed to acknowledge that fact and its implications.
MICHEL DUCLOS (France) said that adoption of resolution 1422 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.
Last year, he continued, France and other Council members took into account two important circumstances in supporting the one-year exemption called for by resolution 1422 –- the danger of not extending a vital peacekeeping mission, and concerns expressed by the United States. However, those two elements now belonged to the past. Developments had since occurred that seemed to meet the concerns that had been expressed by the United States. It had also been shown to be highly unlikely that a case would arise that would trigger the implications of resolution 1422.
The ICC, which now had 90 States parties, had now become a reality, he said, given the election of its Prosecutor and 18 judges this year. 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. At a time when the ICC was being instituted, it was appropriate to renew the exemption of a party who was participating in peacekeeping missions under the auspices of the United Nations. Any perception of permanency attached to resolution 1422 could only weaken the Court’s authority.
GUNTER PLEUGER (Germany) said that Germany was and remained a major driving force in the creation of the ICC. As a State party, it was deeply committed to the Court’s mission to fight impunity by prosecuting those responsible for the most serious crimes of concern to the international community in situations where national jurisdictions did not prosecute those crimes. “Justice is, and must remain, indivisible”, he said. At the beginning of the new millennium, the ICC would serve as an efficient and indispensable instrument to further international security, peace and justice.
He said that 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.
INOCENCIO ARIAS (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.
MIKHAIL WEHBE (Syria) said there was no justification to renew resolution 1422 this year. Some 11 months had passed since the adoption of resolution 1422, 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. The function of peacekeeping missions was to bring peace in accordance with a jurisdiction authorized by the Council. If such peacekeepers committed crimes breaching the Rome Statute, they could be surrendered to their governments and tried before national courts.
When resolution 1422 had been adopted, he continued, the ICC was in its first days of establishment, but it had now been established for 11 months. Renewing resolution 1422 would serve to weaken the Court’s role in prosecuting those who had perpetrated heinous crimes.
RAYKO RAYTCHEV (Bulgaria) said his country had repeatedly expressed adherence to strengthening international law and it fully recognized and adhered to its international obligations as a State party to the Rome Statute. It also supported the position of the European Union on the need to strengthen the ICC regime. He respected both the ICC, as the most ambitious achievement of contemporary international law, and the responsibility of the Council for the maintenance of international peace and security. 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, genocide and war crimes.
He said that support for resolution 1422 (2002) and for the one adopted today had allowed the Council to continue efforts to arrive at a solution that would not undermine the credibility of the ICC, or negatively affect United Nations peacekeeping operations. It had been particularly important to reach consensus on that text, but, unfortunately, that had not been possible. 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.
JULIO HELDER DE MOURA LUCAS (Angola) paid tribute to the Member States who contributed to peacekeeping operations. He was concerned about the intransigence of the different views of the international community regarding the Rome Statute and its consequences for peacekeeping operations. He was convinced that serious crimes of concern to the international community should not be left unpunished. Their effective prosecution must be ensured by the taking of measures at the national level and enhancing international cooperation, when required. In its scope, 1422 had not affected the present and future development of international criminal law or the ability of the United Nations to conduct operations to restore international peace and security.
He said that that resolution had not 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. It must also ensure that Member States keep to their commitment to provide the needed personnel and support to peace operations, and that the review of the resolution adopted today did not lead to an automatic renewal.
PAUL ZOUMANIGUI (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 (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.
SERGEY LAVROV (Russian Federation), speaking in his national capacity, said he welcomed the engaged and candid debate, as it was important, one more time, to state positions and seek to achieve the most optimal and balanced solution to the problem. 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.
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