Global Policy Forum

By Hans Corell*

On 17 July 1998, a United Nations Conference adopted the Rome Statute of the International Criminal Court (ICC). 120 States voted in favour. Regrettably, the US was among the seven States that voted against.

The US nevertheless signed the Statute on 31 December 2000. But on 6 May 2002, the present US administration took the unprecedented step of withdrawing the signature. The US then embarked upon a literal crusade against the ICC in spite of the fact that more than 140 States, including nearly all US Western friends and allies, now support the Rome Statute.

One element in this effort is the attempt to exempt current or former officials or personnel (basically peacekeepers) from States not party to the Statute from the jurisdiction of the ICC with respect to acts or omissions related to UN operations. To achieve this, the US administration invoked Article 16 of the Statute. According to this provision, no investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council has made such request to the Court under Chapter VII of the UN Charter.

When this matter was first introduced in the Security Council in June 2002, the US proposed that the Secretary-General, without further request from the Council, should once a year inform the President of the ICC that these peacekeepers would be generally exempt from the Court's jurisdiction for 12 months. Since the legality of this proposal was highly questionable – it is obvious that Article 16 deals only with specific cases in situations where peace and security is threatened – the Secretary-General urged the members of the Council to reconsider.

The result of a few days' dramatic negotiations, during which the US insisted and threatened to veto a renewal of a UN mission in Bosnia-Herzegovina (UNMIBH), a compromise was struck as reflected in resolution 1422 (2002) of 12 July 2002: the resolution would apply for only one year.

In the Council's informal consultations preceding the adoption, I was asked about the compromise. As the UN Legal Counsel, I explained that "under the present circumstances" one could live with this particular resolution. There were several reasons for this. The situation that the resolution addressed would not occur; the ICC would anyway independently examine the legality of the resolution; the issue had arisen suddenly in the Council and the compromise would leave time for reflection under less stressful circumstances, etc. Important factors were also that the danger of a perpetual regime clearly in contravention of the Rome Statute had been avoided, and that UNMIBH could be extended.

A year later, the US insisted on a renewal of the resolution. Unfortunately, the Security Council agreed, and resolution 1487 (2003) was adopted on 12 June 2003. The Secretary-General was concerned and expressed the hope that this would not become an annual routine, since this would undermine not only the authority of the ICC but also the authority of the Council, and the legitimacy of United Nations peacekeeping.

In July 2002, I had explained to the members of the Council step by step in 10 precise points that the situation that the US wanted to prevent would simply not occur. And if by some miracle it would, the US would be in full control of its own personnel anyway. This explanation was again circulated informally among the members of the Council a few months later.

In my view, the two resolutions deal with a non-issue. Many think that the resolutions damage the ICC. This may be so, but this is not the main problem. From their august position, the ICC judges can look down upon these efforts with a melancholic smile; it is inconceivable that they will recognize the validity of a resolution of this kind. What they will require to stop proceedings in the unlikely event that a peacekeeper is brought before the ICC is obvious: a new resolution under Article 16 that addresses the particular case.

No, the more serious issues are the following.

First: In order to achieve this meaningless resolution, the US uses threats and exerts tremendous pressure on the other members of the Council. Why embarrass them in this way? And what does this do to the credibility of the Council – an institution that the US often relies on when it comes to real issues like peace and security, the fight against terrorism, etc.?

Second: The US insisted on the resolution although the administration knew that it addresses a non-issue. Why? Because of its hostile position vis-í -vis the ICC? If so, then the question arises what this does to the administration's credibility. If it is prepared to throw in such weight behind a resolution with ulterior motives, what signal does this send? What should one think when they raise other issues? Is it serious this time – or?

Security Council resolution 1487 (2003) expires on 30 June 2004. The question is: will the other 14 members of the Council allow themselves to be intimidated once again if the US insists on a renewal? Can they afford damaging their own reputation – and the Council's? And can the US afford continuing in this way when they need all the support they can get from the UN in other matters?

Many great friends and admirers of the US have lately followed the administration's actions in this and other international issues with disbelief and bewilderment. For someone who is a warm supporter of the United Nations, the ICC and the United States it is obvious what must be done in this particular case. It is time to stop this nonsense!

About the Author: Hans Corell was the Legal Counsel of the UN March 1994-March 2004