Global Policy Forum

In a statement issued today, the President of the International Progress Organization (I.P.O.), Dr. Hans Koechler, criticized the United Nations Security Council for having granted immunity from prosecution by the International Criminal Court (ICC) to nationals from non-States Parties to the Rome Statute operating in Sudan on Security Council or AU missions; by this arbitrary measure, the Council has applied double standards in dealing with international crimes in Sudan. Dr. Koechler, author of the book "Global Justice or Global Revenge? International Criminal Justice at the Crossroads," explained that Security Council resolution 1593 (2005), adopted on 31 March 2005, violates letter and spirit of the Rome Statute of the ICC and severely undermines the Court's efficiency, credibility and legitimacy.

Undisputedly, referral of a "situation" in which international crimes may have been committed to the Court's Prosecutor is sufficient basis for the exercise of jurisdiction by the ICC -- which is of particular importance in cases where the Court would otherwise have no jurisdiction on the basis of territoriality or nationality. However, it clearly follows from the wording of Art. 13 (b) of the Rome Statute that any referral of a situation by the Security Council must be made without conditions as to the categories of people to be investigated or prosecuted by the Court.

In an inadmissible way, the Security Council has tied the referral of the situation in Sudan according to Art. 13 (b) of the Rome Statute to a deferral of investigation or prosecution according to Art. 16. While the Security Council, under the Court's Statute, has the right to refer a "situation" (not individual cases) in which crimes that fall under the jurisdiction of the Court appear to have been committed to the Prosecutor of the Court, the Council has no authority to order a deferral of investigation or prosecution on a selective and at the same time preventive basis.

Art. 13 (b) can simply not be interpreted in the sense of selective referral; according to that Article's wording, it is a "situation" that is being referred without any qualifications as to the groups of suspected violators. Similarly, Art. 16 cannot be construed in such a way as to grant immunity from prosecution to certain categories of people. Using Art. 16 to restrict the jurisdiction granted under Art. 13 (b) -- i.e. to render that Article "harmless" for a powerful non-State Party, as resolution 1593 (2005) has effectively done -- is an exercise in sophistry for the sake of power politics; it is an inadmissible effort by a political body, the Security Council, of exercising control over the International Criminal Court, Dr. Koechler explained.

The resolution's "recalling" of Art. 16 of the Rome Statute in the Preamble is incompatible with the decision, under operative par. 6 of that resolution, that nationals, officials or personnel from non-States Parties to the Rome Statute (e.g. the United States) "shall be subject to the exclusive jurisdiction" of their respective state. By linking the referral of a situation to a collective deferral in favour of certain categories of people, the Council, under United States pressure, has not only undermined the authority of the International Criminal Court but introduced a "policy of double standards" into the practice of international criminal justice.

In its intention, resolution 1593 (2005) resembles earlier "preventive" resolutions, namely those adopted by the Security Council in 2002 and 2003 on the "collective" deferral of investigations or prosecutions of personnel of UN peace-keeping missions from non-States Parties to the Rome Statute, Dr. Koechler stated. While this particular practice has stopped in 2004 (as a result of the Iraq prison scandal), it has now been revived in another context.

Resolution 1593 (2005) has once more documented that the Security Council's decisions are mainly shaped by international power politics and that the Council's statutory relations with the International Criminal Court are prone to abuse in favour of the political agenda of the most powerful member state. As explained by Dr. Koechler in his book "Global Justice or Global Revenge?," the system of norms governing the ICC's exercise of authority is extremely fragile when compared to the robust mechanisms regulating the Security Council's enforcement powers under Chapter VII of the UN Charter. With the latest resolution on the Sudan, the Council has again arrogated de facto judicial powers and, by arbitrarily changing the meaning of Art. 16 of the Rome Statute, appears having acted according to the maxim of "might makes right."

The President of the I.P.O. declared his agreement with the statement issued yesterday by Amnesty International according to which Security Council members should "respect the fundamental principle of equality of all before the law by not establishing exceptions to international justice." Urging the prosecution of international crimes while at the same time conditioning it on the granting of immunity to the nationals of the most powerful state runs counter to the very doctrine of universal jurisdiction and makes a mockery of international criminal justice. Such a policy, if not checked by the member states of the Security Council, will effectively replace the international rule of law by a system of power-oriented norms, tailored according to the needs of the most powerful member state(s), and will further damage the credibility of the United Nations Organization, Dr. Koechler concluded.