ANALYSIS: Criminal Court Impasse Broken

Anthony Borden

IWPR Executive Director

Saturday, 13 July, 2002

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A compromise deal at the UN over the new International Criminal Court has lifted the threat of a US veto on peacekeepers in Bosnia and Herzegovina and elsewhere. But the details of the Security Council resolution, passed unanimously July 12, leave a minefield of questions that could explode in future in perhaps an even more intense dispute over the jurisdiction of the court.

Resolution 1422 provides for a one-year deferral of any potential war crimes prosecution before the ICC. As such it is a substantial retreat from the initial US demand for permanent blanket immunity for any US personnel.

Yet no party to the negotiations emerged fully satisfied. By apparently acting within the framework of provisions of the ICC's founding Rome treaty, which permits the Security Council to order a delay in a pending prosecution, the revised resolution allowed EU states to claim that they had scored a victory in saving UN peacekeeping operations while blocking the US attempt substantially to undermine the authority of the new court.

"The perfect solution would have been no resolution," acknowledged Catherine MacKenzie of the British Mission to the UN. But in abandoning permanent immunity "the US moved a hell of a long way from its original stance". MacKenzie adds that since, under the restrictive terms of the Rome statute, a prosecution against US personnel is all but unthinkable, the resolution "will never be invoked" and "in practical terms its effect will be nil".

UN officials took comfort that the US threat to block peacekeeping missions had been surmounted. But they expressed concern that Washington would only return with further attacks against international legal and other institutions.

"There is a sense of relief over the compromise," said one senior official within the UN. "But it is a bit like Munich - we have a strong feeling that the US will come back for more."

The US, too, claimed only a modest victory. Clearly it had laid down a firm political marker that it would reject potential restrictions on its capacity to deploy military personnel in whatever capacity it may see fit.

"Should the ICC eventually seek to detain any American, the United States would regard this as illegitimate - and it would have serious consequences," said a bullish US ambassador to the UN John Negroponte after the Security Council vote.

But he too acknowledged limitations of the vote. "For practical purposes, [the resolution] achieves the kind of protection for a one-year period that we were seeking, [although] we would have preferred that this protection be for an indefinite period of time," he said. Negroponte confirmed that the US would be seeking to invoke other articles in the Rome treaty to obtain further guarantees against potential prosecutions.

Yet like so many UN-brokered deals in the past, the diplomatic cease-fire achieved over the court may be only temporary. Many states raised severe criticisms of the compromise resolution. "It is a sad day for the UN," mourned Canadian ambassador to the UN Paul Heinbecker.

Objections focus on the resolution's interpretation of Article 16 of the Rome treaty, which allows the Security Council to call for a deferral of a specific prosecution. It was negotiated to enable the UN to delay a pending case that might destabilise peace negotiations if charges were brought against a senior involved party.

As such, the article requires the Security Council to be acting under the authority of Chapter VII of the UN Charter, namely, to avert aggression or other threat to peace. Further, the article allows any deferral to be renewed, in cases where such talks might be on-going.

Opponents of the compromise argue that by exploiting Article 16 to achieve a blanket advance deferral of any case, the Security Council has overstepped its authority.

"It is the strong belief of Germany that - beyond the case-by-case possibilities clearly contained in Article 16 of the ICC Statute - the Security Council would do itself and the world community a disservice if it passed a resolution under Chapter VII of the UN Charter to, in effect, amend an important treaty ratified by 76 States," said Hanns Schumacher, UN ambassador for Germany, which is not a member of the Security Council.

Further, the resolution applies not only to UN missions alone but to any "United Nations established or authorised operation", even if not under UN command.

This stipulation leaves substantial room for dispute. Afghanistan has not ratified the Rome treaty. But should it do so, or should the US initiate similar aggressive "anti-terrorist" operations such as Operation Enduring Freedom in a state which has, Washington would likely claim that it was "UN authorised", under the UN's Article 51 right to self-defence (and the September 12 Resolution 1368 reaffirming that right).

However, at least one permanent member, the French, confirm that they would strongly reject this interpretation, arguing that the deferral applies only to missions explicitly approved by the Security Council.

Major human rights groups argued that several stipulations in the resolution directly violate the Rome treaty and therefore render it "unlawful" and effectively non-binding. In particular, they question the legitimacy of language in the resolution in which the Security Council "expresses the intention to renew" the deferral of any prosecution "each 1 July for further 12-month periods for as long as may be necessary".

British and US representatives insist that this will require a fresh debate annually and an affirmative vote by nine of the 15 Security Council members, including all the permanent five -- calculations complicated by the constantly rotating nature of the body's membership. "I wouldn't want to try to prejudge or predict the outcome of any such discussion at this point," said Negroponte.

Yet should the "expressed intent" be indeed be renewed annually - no doubt under strong US pressure - NGO activists argue that this would substantially undermine the authority of the court.

"What is worrying is that they have expressed the intention to renew it forever," notes Christopher Hall of Amnesty International. "That is granting immunity, and it has got to be rewriting the statute."

Legal challenges to Security Council resolutions are almost unheard of, but advocates of the court note that such a challenge is also unnecessary. As stipulated in the Rome treaty, subject to the oversight of an assembly of ratifying states, the ultimate arbiter of the jurisdiction of the ICC will be the court itself.

Should the newly appointed judges finds themselves in conflict with Resolution 1422, they could conclude that it indeed unlawfully seeks to re-write or otherwise violates the statute and undertake a prosecution anyway. That would only confirm Washington's worst fears about the ICC, and launch a political and legal battle over the court would far exceed last week's skirmish.

Anthony Borden is executive director of the Institute for War & Peace Reporting.