In the six weeks since the Bush administration announced its decision to withdraw the United States signature from the International Criminal Court (ICC) Treaty, Washington has launched a comprehensive campaign against the ICC. This concerted effort stands in stark contrast to Ambassador-at-large for War Crimes Issues Pierre-Richard Prosper's statements at the time that the administration was "not going to war" with the Court. The campaign involves several components, the most serious and imminent aspect is now unfolding at the United Nations Security Council.
On June 18, at a Security Council meeting to discuss the mandate for peacekeeping forces in Bosnia-Herzegovina, U.S. diplomats presented two resolutions that would exempt peacekeepers from the jurisdiction of the ICC. The first would exempt only the forces deployed in Bosnia; the second would exempt peacekeepers in all U.N.-authorized or -mandated operations. These proposals follow the unsuccessful U.S. effort in May to exempt peacekeepers in East Timor.
U.S. diplomats have attempted to justify these proposals as an effort to make peacekeeping more "efficient and effective." In fact, they seek to undermine the ICC. As the first permanent war crimes tribunal, the ICC has the potential to be the most important human rights mechanism created in the last fifty years. The treaty establishing the Court enters into force on July 1, 2002. If the Security Council adopts either proposed text or similar language, it will undermine the ICC treaty and pose a dangerous threat to international law-making generally.
II. The Proposals
In the draft resolution governing peacekeeping in Bosnia-Herzegovina, the U.S. urges the Security Council to agree
that persons from contributing states acting in connection with such operations shall enjoy in the territory of all member states, other than the contributing states, immunity from arrest, detention and prosecution with respect to all acts arising out of the operation and that this immunity shall continue after the termination of their participation in the operation for all such acts.
The alternative, comprehensive draft resolution proposes that identical operative language cover all U.N. peacekeeping operations.
By enshrining immunity from arrest, detention and prosecution for peacekeepers not only in the state that hosts a peacekeeping operation, but also in every other U.N. member state, the proposal would drastically alter the obligations of States Parties to the ICC treaty, specifically the obligation to surrender an accused to the Court.
Under the ICC jurisdictional regime, if the alleged crimes are committed on the territory of a State Party, the Court could have jurisdiction over the accused regardless of his or her nationality. Every State Party, in turn, would have an obligation to surrender an accused to the ICC. Both U.S.-proposed texts, however, would require States Parties to ignore this obligation to the Court and not turn over the accused to the ICC. That result would effectively rewrite the ICC treaty and nullify the national laws of many States Parties that have now incorporated the ICC's "prosecute or surrender" obligations.
Such a result would also be inconsistent with Article 27 of the ICC treaty, which establishes the "irrelevance of official capacity" by providing that immunities under national or international law do not bar the ICC from assuming jurisdiction. This provision is consistent with a strong movement in international law against granting immunities for those who commit serious human rights crimes. The U.S. proposal would reverse this trend and sends a dangerous signal that peacekeepers are above the law.
This process would also provide a dangerous basis for the Security Council to undermine multilateral treaties. The United States tried and failed to secure a similar exemption at the Rome conference that adopted the ICC treaty. For it now to use the Security Council for the same purpose would open the door for the Security Council to amend any multilateral treaty that the current administration in Washington happens not to like.
III. The Controversy Over the ISAF Agreement
U.S. diplomats have attempted to confuse the debate by comparing their efforts at the Security Council with the agreement initiated and signed by the United Kingdom to cover the international forces operating as part of the International Security Assistance Force (ISAF) in Afghanistan. The agreement establishes that ISAF and supporting personnel may not be surrendered or transferred to "an international tribunal." U.S. officials claim that this agreement confers protections equivalent to those that Washington is now seeking from the Security Council. This analogy is false.
The relevant section of the ISAF agreement reads:
The ISAF and supporting personnel, including associated liaison personnel, will be immune from personal arrest or detention. The Interim Administration agrees that ISAF and supporting personnel, including associate liaison personnel, may not be surrendered to, or otherwise transferred to the custody of, an international tribunal or any other entity or State without the express consent of the contributing nation.
The British included standard Status of Forces Agreement (SOFA) language in the ISAF text with the Interim Authority in Kabul. This text requires that any of their peacekeepers who might be accused of crimes be sent home to the sponsoring government, not to an international tribunal. Human Rights Watch believes the explicit reference to "an international tribunal" in the text is ill-conceived and a serious error by the British and other signatory states. However, the ISAF governments' agreement with Afghanistan must be understood in the context of their pledge as States Parties to cooperate with the Court in the unlikely event that a peacekeeper committed genocide, war crimes, or crimes against humanity, and a government's investigation or prosecution were deemed a sham. The ISAF agreement is consistent with the Court's preference for good-faith national prosecutions. As a non State Party that has pledged not to cooperate with the Court, the U.S. is seeking impunity even if a national government's investigation and prosecution is a charade.
This ISAF agreement contrasts starkly with the U.S. government's proposed Security Council Resolution in another important way. By granting immunity to persons from contributing states in the territory of all member states the Bush Administration is trying to prevent not just governments that receive peacekeepers but governments anywhere in the world from sending a peacekeeper implicated in human rights crimes to the new Court. European governments rightfully reject this proposal as a frontal assault on governments' obligations to the Court.
As discussed above, the U.S. text changes the terms of a multilateral treaty by granting immunity from arrest, detention and prosecution for peacekeepers in all states other than the state of nationality of the accused. Such a resolution would amend the ICC treaty to allow for something the U.S. attempted to negotiate into the ICC treaty-an ironclad exemption for U.S. troops and civilian personnel-but failed to achieve. The ICC treaty has strict requirements for amendments, which can only occur in seven years and with 7/8th agreement of all States Parties.
Whether limited to Bosnia or covering all peacekeeping operations a resolution like this would undermine the important commitment taken by states that have ratified the ICC Treaty to prosecute these most serious crimes. It would be a regressive step in the fifty-year international effort to achieve accountability for the most heinous crimes known to humanity.
Human Rights Watch believes it is essential for the Security Council to reject these proposals without compromise. The consequence of the Security Council legitimizing blanket immunity for the most horrific crimes under international law would be a hugely regressive step. At issue are not only the peacekeeping operations themselves, but also whether a single country can put itself above the rule of law. It must not be allowed to do so.