July 22, 2002
On July 12, 2002, the UN Security Council adopted Resolution 1422, which requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operations, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise” (Paragragh 1). The Resolution also expresses the “intention” to renew the request under the same conditions each 1 July for further 12-month period for as long as may be necessary (Paragraph 2).
Whereas the resolution is more attenuated in tone than previous proposals by the US for blanket immunity for peacekeepers, it nevertheless puts an obstacle in the way of realizing a long-cherished dream of humanity to plug an impunity hole of the most heinous crimes of international concerns.
First, the resolution is inconsistent with the words and intent of Article 16 of the Rome Treaty, which has already been entered into force. Article 16, which itself is a compromise provision, is intended to respect the SC’s Chapter VII powers and defer investigations of or prosecutions in specific situations which the SC is addressing in its mandate. No where does Article 16 state that it applies to individual persons. Thus, the resolution’s reference in Paragraph 1 to cases involving individual officials or personnel is not only sharply different than Article 16 but is wholly misconceived.
Secondly, Article 16 states that the SC can request that an investigation or prosecution be deferred for a 12 month period, and that this request “may be renewed”. The implication is that the request is made on a case-by-case basis, and is not a blanket request. The language of Article 16, “may be renewed”, does not assume that there wil be an additional renewal and certainly does not provide for an “automatic renewal”. In contrast, the language of the resolution which provides for renewals “for as long as may be necessary (Paragraph 2)”, while falling short of “automatic renewal” is, at best, amibiguous and seeks to achieve the same purpose. The resolution opens the door for lengthy battles over the venue for resolving violations of crimes against humanity, war crimes and genocide.
The purpose of Article 16 was never to grant automatic deferrals, which could effectively amount to immunity from prosecution to individual perpetrators whose crimes are under the jurisdicition of the ICC. The Resolution 1422 seeks to pave the way for this.
It is a matter of great regret that the Security Council abuses its power enshrined in Chapter VII of UN Charter in the very moment of entry into force of the Treaty for Establishing the International Criminal Court [ICC]. The SC Resolution threatens the integrity of the Rome Treaty, which is now part of international law and the ability of the ICC to independently fulfill its mandate as outlined in the Treaty.
It is also regretful that the resolution disproportionately emphasizes the importance of peacekeeping operations, among other international activities. The likelihood of acts of commission or omission of genocide, crimes against humanity or war crimes by officials and personnel alike, including the highest authorities in command from a contributing State not a Party to the Rome Statute, cannot be denied. Yet, it must also be recognized that these crimes can also be committed by individuals who are involved in other international efforts, which are not under the arm of peace-keeping.
The International Association of Democratic Lawyers [IADL], in consultative status with UN ECOSOC, UNESCO and UNICEF, while reiterating its earlier statement released on July 1st, 2002, expresses, once again, its protest against the United States serial persistent proposals, which have been made in an effort to erode the integrity of ICC. It is, however, a matter of some satisfaction that the US government failed in its efforts to gain immunity to its personnel in operations of peacekeeping forces established or authorized by the Security Council. It has to be noted, also, that any personnel of US forces in other operations than peacekeeping will remain under the universal jurisdiction of ICC, if they commit crimes on soil within the court’s jurisdiction.
IADL calls upon lawyers and citizens the world over to continue to remain ever vigilant against even slightest deviances or attempts to move away from the ICC statute, and to report them at length to the world public, and, if appropriate, to expose them to the domestic courts, which the US government believes as the sole legitimate jurisdiction to carry out criminal investigation and prosecution against its nationals, officials and personnel alike, of peacekeeping forces overseas, for their any commission or omission of crimes similar to genocide, crimes against humanity or war crimes as prescribed in Rome Statute.
Again, IADL calls upon every lawyer and citizen all over the world to assume his or her moral obligation to cooperate with investigation and prosecution of the newly born sole universal jurisdiction of the international entity of justice, the International Criminal Court.