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U.S. Campaign for Permanent Immunity Fails

Security Council Rebuffs Effort to Cripple ICC

(New York) - The adoption of a U.N. Security Council resolution on Friday marks the failure of the Bush Administration´s latest effort to permanently exempt Americans from the reach of the International Criminal Court (ICC). The resolution purports only to suspend for one year any ICC investigation or prosecution of U.N. peacekeepers from countries that have not ratified the ICC treaty.
The Bush Administration tried to breach the fundamental principle that no one is above the law," said Richard Dicker, Director of International Justice at Human Rights Watch. "For all its arm-twisting, Washington got only a temporary reprieve of dubious legality and a strong taste of global outrage. The Court will begin its work in a matter of months with greater international support than ever before."  
The U.S. had sought a resolution that effectively would have exempted peacekeepers from the ICC's jurisdiction indefinitely. Because the resolution would have required a positive vote of the Security Council to allow the ICC to proceed, the U.S. government could have used its Security Council veto to block prosecution forever. The resolution adopted is far weaker. It requires an additional positive Security Council vote to suspend ICC action beyond one year, meaning that no permanent council member acting alone can ensure ongoing suspension.  
Instead of a presumption that the suspension would be renewed, the resolution includes only a stated "intention" to renew. If a peacekeeper commits an atrocity during the initial one-year period of suspension and his own government does not prosecute him, that intention could be abandoned. Any seven members of the Security Council or any permanent member using its veto can block council action and enable the ICC to pursue the case.  
"We are not happy that the U.S. has squeezed out a purported deferral of prosecution for peacekeepers- not because we expect peacekeepers to commit heinous crimes - but because no group of people should be even temporarily beyond the reach of international justice," Dicker said. "On the other hand, weeks of effort to cripple the ICC by obtaining a permanent exemption have ended in failure."  
Although the Security Council resolution states that it is "consistent with the provisions of Article 16 of the Rome Statute," that description is inaccurate. The drafters of Article 16 of the ICC treaty clearly intended to allow the Security Council to defer individual investigations and prosecutions for one year only upon consideration of a particular case, not for an entire category of people, such as peacekeepers. The inclusion of cosmetic language that the deferral is activated only "if a case arises" does not obscure the fact that the deferral has been voted in advance. This purported modification of a broadly ratified multilateral treaty is expected to face legal challenge.  
The treaty establishing the court took effect on July 1, 2002. The treaty has been signed by 139 governments and ratified by 76.  

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