Global Policy Forum

William R. Pace

On behalf of the Coalition for the International Criminal Court, a coalition of more than one thousand non-governmental organizations working to ensure that the International Criminal Court, which will come into existence next Monday, 1 July 2002, is an independent, fair and effective institution, I am writing to urge you to reject two recent proposals by the United States of America (USA) in the UN Security Council that would gravely undermine the effectiveness and integrity of the Rome Statute of the International Criminal Court and the entire treaty-making process of the United Nations. These proposals represent an affront to international law and the rule of law.

The Coalition welcomed the Council's recent rejection of a similar initiative by the USA seeking to obtain an exemption for US nationals serving in the peace-keeping mission in East Timor. We urge you to reject squarely these new initiatives, which pose a far greater danger to the integrity of the Rome Statute of the International Criminal Court or any international tribunal.

Last week, on Wednesday, 19 June 2002, the USA presented two proposals designed to exempt its nationals participating in UN peace-keeping operations abroad from the jurisdiction of the International Criminal Court if they were suspected of having committed war crimes, crimes against humanity or genocide. The first proposal would add a paragraph to the draft resolution renewing the mandate of the United Nations Mission in Bosnia and Herzegovina (UNMIBH) providing that no peace-keeping personnel "may be surrendered or otherwise transferred to an international tribunal, for any purpose, in connection with any activity relating to the UNMIBH, SFOR…without the consent of [the] contributing state." The second proposal is a draft general resolution that would exempt peace-keepers of any mission in the same terms from the Court's jurisdiction.

We commend the initial rejection of these proposals by governments in the Security Council, but we are concerned that the postponement of the issue could mean that governments are willing to compromise on this vital issue of principle. The US government proposal would, in effect, amend by means of a Security Council resolution the Rome Statute and the jurisdiction of the Court. The Rome Statute is a treaty that has been signed by 139 states and already ratified by 69 states as of 20 June 2002.

Approving the US proposals would have a far-reaching and devastating effect on international law. The UN Charter requires that all UN Member States must implement Chapter VII Security Council resolutions. If the US resolutions were adopted, it could force all countries that have ratified the Rome Statute to breach their treaty obligations. This would set a disastrous precedent under which the Security Council could, in effect, change any treaty it wished through a Security Council resolution. This would severely undermine the treaty-making process, as well as the credibility and effectiveness of the Security Council.

The Coalition strongly supports the integrity of the Rome Statute and cannot support exclusion of peacekeepers from the jurisdiction of the ICC. No person should be immune from prosecution for genocide, crimes against humanity or war crimes, as stipulated by article 27 of the Rome Statute. The Rome Statute already contains many safeguards and stipulates that states retain primary responsibility to investigate and prosecute crimes committed by their nationals. The US proposal would send a very dangerous signal that peacekeepers are above the law if they commit one of the grave crimes within the jurisdiction of the ICC, as there would be no recourse if the troop contributing country failed to investigate an allegation of these most serious crimes. It would also undermine the efforts of peacekeepers around the world involved in bringing those accused of genocide, crimes against humanity and war crimes to justice.

The Council voted to extend UNMIBH by ten days until this Sunday, 30 June 2002. However, the Coalition remains deeply concerned because the USA has reportedly now threatened to veto any resolution extending the mandate of the UNMIBH and any other UN peace-keeping missions unless their proposed language is included in the UNMIBH extension and the extensions of all existing missions. We understand the intense pressure of this threat to UN peace-keeping operations on other states, but we urge all members of the Security Council to resist this pressure.

The US proposals undermine the Rome Statute; they undermine UN treaty making principles, they undermine peacekeeping; they undermine international law and the rule of law.

The future of the Court as an independent institution, the integrity of the Rome Statute and international justice are at stake. We ask you to reject the US proposals.

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