Permanent immunity?
In its latest effort to undermine the newly established International Criminal Court, the US managed to have renewed for peacekeepers a UN resolution granting them immunity from prosecution, Soha Abdelaty follows the controversy
The administration of US President George W Bush is on the warpath, determined to weaken the International Criminal Court (ICC). This is not the Bush administration's first attempt to undermine the ICC, which it has vehemently opposed since it started its work last year. On 12 May, the US went to the United Nations Security Council to extend for an additional year a provision to grant peacekeepers immunity which was supposed to elapse following one year. European countries, UN officials and legal experts, are sounding the alarm about this latest US undertaking, and fear that the country will succeed in ensuring that its soldiers will remain outside the reach of the ICC.
Resolution 1487 passed with a vote of 12-0, with three countries -- France, Germany and Syria -- abstaining. That vote renewed a highly controversial resolution adopted last year that requests that the ICC not proceed with investigations or prosecute any personnel in any UN peacekeeping missions from countries who are not parties to the ICC. At that time, the Security Council succumbed to US pressure after threats of withdrawing financial support and manpower from peacekeeping operations. UN officials are saying the idea behind the original resolution was not to keep on renewing it every year.
UN Secretary-General Kofi Annan told Security Council members that he hoped that renewal of the resolution would not become an annual event. "If it does," he said last Thursday, "I fear the world would interpret it as meaning that this council wished to claim absolute and permanent immunity for people serving in the operations it establishes or authorises. And if that were to happen, it would undermine not only the authority of the ICC but also the authority of this council, and the legitimacy of United Nations peacekeeping."
Nevertheless, the council members once again found themselves pushed into accepting the resolution. "The US is the largest country contributor to peacekeeping missions, in financial terms as well as in terms of equipment and manpower," said Nasser Amin, the regional coordinator of the Coalition for an International Criminal Court (an international non-governmental organisation supporting the work of the court). "At that particular moment, they had no alternative," he added, referring to countries who supported the renewal of the resolution.
Even the US's strongest allies do not see eye- to-eye with Washington on the matter. "Under the circumstances, we regard the adoption of this resolution as an acceptable outcome in what is for the council a difficult situation... Whilst we understand US concerns about the International Criminal Court, we do not share them," UN Permanent Representative of the United Kingdom Sir Jeremy Greenstock said at an open session of the Security Council before the voting on the resolution. France went a step further in explaining its opposition. "Agreeing to the renewal risks in effect giving credence to the perception of permanent exceptions which can only weaken the court and impair its authority," Deputy Ambassador of France Michel Duclos said.
The US says it fears for its numerous soldiers around the world, who could be prosecuted with politically motivated charges. Deputy Permanent Representative James Cunningham told council members, "The ICC is not the law... The ICC is vulnerable at each stage of any proceeding to politicisation... We have already seen in other fora the potential for politically motivated criminal charges against national leaders and military officers including over the recent Iraq hostilities... In our view it is a fatally flawed institution."
Since the ICC came into force July 2002, the US has repeatedly tried to undermine the court. Arising from the necessity of trying war criminals and based on the Nuremberg and Tokyo tribunals, the ICC is the first permanent court to try war crimes and crimes against humanity. In theory, the court can only hear cases in two instances, namely if the individuals concerned are from states which signed the 1998 Rome Statute or if a case is referred to it by the Security Council. However, a state can request that a particular soldier -- American or from another non- signatory nation -- be tried at the ICC if it is believed the soldier committed crimes on its territory. Ninety states have so far ratified the Rome treaty.
One of the ways the US has sought to avert the long arm of the ICC is by signing bilateral "Non- Surrender", or "Article 98" agreements. Under these agreements, the two countries agree that neither side will seek to bring the other's officials or military personnel before the court. To date, a total of 38 countries have signed such agreements with the US.
Washington's pressure on countries to support its bilateral immunity agreements intensified in mid-August 2002 when US officials -- including US Ambassador at Large for War Crimes Issues Pierre-Richard Prosper -- indicated that Washington's relationship with the North Atlantic Treaty Organisation (NATO) would be affected should its members stand in the way of US efforts to secure the agreements. Furthermore, it has been reported that the US intends to block any state's entry into NATO if they failed to sign a bilateral immunity agreement. US officials deny this. However, in August of last year US Congress passed the American Service Members' Protection Act authorising the withdrawal of US military assistance from certain non- NATO allies supporting the court.
International lawyers are calling on ICC supporters around the world to stand firm against US efforts to undermine the court. "US actions are not only weakening the court," says Amin, "but they are also aimed at weakening the international order as a whole."
So far, European countries have been able to do very little in the face of US efforts to sideline the new court. On the eve of the UN Security Council meeting last week, the European Union (EU) Political and Security Committee adopted a Common Position stating its support for the ICC. The Common Position calls for halting the spread of US bilateral immunity agreements. The US retaliated by threatening EU countries with "very damaging" consequences in transatlantic relations should these countries continue to oppose American efforts to protect its personnel from the criminal court.
