Preparatory Commission for

International Criminal Court

39^th & 40^th Meetings (AM & PM)

PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT ‘DEEPLY CONCERNED’

AT SECURITY COUNCIL DEVELOPMENTS REGARDING COURT AND PEACEKEEPING

The Preparatory Commission for the International Criminal Court (ICC) was deeply concerned about the current developments in the Security Council regarding the ICC and international peacekeeping, according to a statement adopted by the Commission at the second of two meetings today.

Calling on all States to safeguard the independent and effective functioning of the ICC that was complementary to national jurisdictions, the Commission Chairman, Philippe Kirsch (Canada) appealed to Council members to ensure an outcome which fully respected the letter and spirit of the Rome Statute.

[The statement referred to a United States proposal that a request, consistent with article 16 of the Statute, to postpone investigations by the Court for 12 months could be renewed and extended during successive 12-month periods unless decided otherwise by the Council.  According to article 16, no investigation or prosecution may be commenced for a period of 12 months after the Security Council, in accordance with the United Nations Charter, has requested the Court to that effect.] 

At the morning session, several members of the Commission expressed their regret that the Statute, which entered into force on 1 July, was already coming under attack.

It was alarming to see the Council become a body legislating against an existing valid treaty, the observer of Switzerland said.  Reference to article 16 of the Rome Statute in the operative portion of the resolution before the Council was aimed at giving the appearance of compliance with the treaty, but that was not the case.  The adoption of the resolution would affect the future of international law and would have consequences on the future of the United Nations.

The adoption of the resolution would place Canada in the position of having to examine the legality of the Security Council resolution, that country’s representative said.  The exercise of the veto in the Security Council gave the impression that peacekeeping was being held hostage.  The draft resolution currently under discussion was a radical extension of article 16 and implied that in upholding basic norms of humanitarian law the ICC was a threat to international peace and security.  The exact opposite was true.

The representative of New Zealand said the draft resolution purported to give blanket immunity to a particular group, which was never countenanced by the

Statute.  The Council had no right to highjack article 16 of the Rome Statute.  Under treaty law, the meaning of that article was determined by States parties at the time the Statute was drawn up.  No one participating in the Rome negotiations intended that article 16 would have the result and purpose that members of the Council now wanted to give it.

The Vienna Convention on the Law of Treaties stipulated that treaties were changed using procedures they themselves had elaborated, the representative of Côte d’Ivoire noted.  Therefore, the Statute could only be amended in the way it had decided, with the full agreement of States parties.

At the end of the morning meeting, the Commission Chairman said that members of the Council should keep in mind the real purpose of responsibilities conferred on them.  International peace and security was irrevocably linked to justice, and to think that a choice between them was possible would be a great disservice to both.  He hoped all parties to the Statute would make every effort to ensure that its integrity was maintained.

Also speaking at the meeting this morning were the representatives of Australia, Fiji, Denmark (on behalf of the European Union), Liechtenstein, Mexico, Syria (on behalf of the Arab Group), Argentina, Samoa, United Arab Emirates, Burundi (on behalf of the African Group), Malawi, Venezuela, Sierra Leon, Brazil, Peru, Democratic Republic of the Congo, Trinidad and Tobago and Kuwait.

The Commission will meet again on Monday, 8 July.

Background

The Preparatory Commission for the International Criminal Court (ICC) met this morning to continue its work.

Statements

RICHARD ROWE (Australia), speaking in his capacity as Chairman of the Like-Minded Group, said the Group expressed serious concern about current Security Council developments.  A fundamental principle of the Like-Minded Group was to safeguard the integrity of the Statute.  It expected the Security Council to resolve the matter in a way which fully respected the integrity of the Statute and the principles of international law.

AMRAIYA NAIDU (Fiji) endorsed the statement made by the Chairman of the Like-Minded Group.  Fiji regretted that the occasion of an urgent plenary meeting imposed a grave challenge to the establishment of the historic Court.  The Security Council must remain steadfast in its goal of maintaining international peace and security.  It must refrain from taking the decision contained in the resolution before it.  Adoption of that resolution would kill the Court before it was born.   The views of the wider United Nations membership could be best heard in an open debate of the Security Council before adopting a resolution.  He requested States parties who were members of the Security Council to oppose the draft resolution thereby maintaining the integrity of the Rome Statute.

NICOLAS MICHEL, observer of Switzerland, said it was inconceivable that a Security Council resolution would change a regime established under a treaty.  He disapproved of the draft resolution before the Council both in terms of principle and modalities. 

He said it was alarming to see the Council attempting to legislate in contravention of an existing valid treaty.  If adopted, the text would be unprecedented.  Regarding modalities, the text was no less alarming.  It set the Rome Statute against peacekeeping operations.  As for the operative portion of the draft, reference to article 16 of the Rome Statute was aimed at giving the appearance of compliance with the treaty.  That was not the case.  It referred to Chapter VII of the Charter, a clear recall of the thrust of the article to suspend procedures to allow peace to come into effect. 

The draft referred to article 16 of the Statute but emasculated it in its meaning, he said.  The Security Council did not have competence to adopt rules of law which ran counter to a treaty when that treaty was in compliance with the United Nations Charter.  Under article 21 of the Court, the Court must apply the Statute itself first and foremost.  The adoption of the resolution would be of concern to the future of international law and would not be without consequence to the future of the United Nations.

DON MACKAY (New Zealand) said the Commission currently faced a landmark challenge to establish an effective court.  Over the past few days, New Zealand had watched developments in the Security Council with respect to the Bosnia peacekeeping mission with dismay.  He saw little in the latest proposal, which was inconsistent with the spirit and letter of the Rome Statute, to offer comfort.  The proposal purported to give blanket immunity to a particular group, which was never countenanced by the Statute.

The Council had no right to highjack article 16 of the Rome Statute.  Under treaty law, the meaning of that article was determined by States parties at the time the Statute was drawn up.  No one participating in the Rome negotiations intended that article 16 would have the result and purport that members of the Council now wanted to give it.  He urged Council members to consider carefully the implications of the action they were proposing.  This one had implications for peacekeeping generally, for the Rome Statute, and on whether Chapter VII resolutions could be used to override treaty obligations.

There should be no impunity for genocide, crimes against humanity and war crimes for anyone.  He understood the Council faced a difficult choice, but did not think it was a clear choice that had to be made.  In fact, there was no choice to be made between the International Criminal Court and peacekeeping because they stood side by side.  A solution to the Council problem must not be found at any price.  Gains made in Rome must not be sacrificed only three days after the Rome Statute had entered into force.

ELLEN MARGARETHE LOJ (Denmark), on behalf of the European Union and associated States, expressed deep regret that the Security Council had been placed in a difficult situation with respect to United Nations peacekeeping.  The Union hoped that members would adhere to the Secretary-General’s strong appeal in the coming days.  It would accept any solution that respected the Rome Statute and did not undermine the effectiveness of the Court.  The European Union was ready to cooperate in drafting any text that would unite the Preparatory Commission for the Court in expressing itself over this important matter.

CHRISTIAN WENAWESER (Liechtenstein) said he had been following events in the Security Council with growing concern.  The language of the draft resolution now before the Council was in stark opposition to article 16 of the Rome Statute.  The Statute had been drawn up in a thorough and satisfactory manner, and there were no political reasons to amend it.  The mandate of the Security Council had been clearly laid down in the United Nations Charter, and it did not involve any treaty-making.

The integrity of the Rome Statute remained of the utmost importance, and its legal foundations were being challenged, he continued.  That in itself was enough to oppose a decision such as the one under consideration by the Council.  He was grateful to those countries which had taken a principled stand in favour of the Rome Statute in the Council.

PAUL HEINBECKER (Canada) said he was troubled by Security Council discussions regarding the general exemption of Blue Helmets from national and international jurisdiction.  Canada did not agree with the United States position, given the protections provided for in the Statute.  Countries had several options to protect themselves in peacekeeping operations without vetoing peacekeeping missions.   There was no reason to prevent other States from carrying out peacekeeping operations. 

The exercise of the veto gave the impression that peacekeeping was being held hostage, he said.  What was at stake was a fundamental principle.  The proposed resolution would set a negative precedent under which the Security Council could change the terms of any treaty.  Article 16 was intended to be available to the Security Council on a case-by-case basis.  Most States were opposed to any Security Council interference in ICC action.  The proposal now under discussion was a radical extension of article 16.  The proposed resolution implied that in upholding basic norms of humanitarian law, the ICC was a threat to international peace and security.  The exact opposite was true. 

All had learned the lessons of the bloodiest of centuries that impunity for grievous crimes must end, he said.  It sent the unacceptable message that peacekeepers were above the law.  To block the ICC was to permit impunity.  No one in the room believed that the United States would turn a blind eye to allegations of grievous crimes.  Once the United States acquitted itself, the Court would be blocked and have no jurisdiction.  The exemption swept aside other well-established jurisdictional provisions.  Adoption of the proposal would place Canada in the position of having to examine the legality of a Security Council resolution.  Such a step would undermine the Security Council.  The proposed resolution avoided the words immunity but had the same effect of a resolution rejected by the Council a few days ago.  The basic principles of international law must not be compromised.

SOCOMO FLORES (Mexico) said her delegation was convinced of the importance of maintaining the instrument of the Rome Statute.  Granting immunity to a certain category was rejected in the Rome Statue and the Preparatory Commission.  The prestige of the Security Council depended on the legitimacy of its decisions.  The Security Council did not have the power to amend treaties.  The desire of the international community for the ICC took form on 1 July with the entry into force of the treaty.  It was regrettable that attempts were already being made to disrupt the Court.  This was the time to act in accordance with commitments already expressed.

MOHAMMED AZIZ SHUKRI (Syria), speaking on behalf of the Arab countries, said that when the ICC was established, it was meant to be an instrument to fill in the gaps of international humanitarian law.  It was to be an independent Court far from political tendancies, especially those of the Security Council.  That was why during the discussion in the Preparatory Commission, he had agreed that the Security Council should be far from the Court’s deliberations.  If there were articles in the Statute which gave certain competence to the Security Council, such as article 16, those articles must be intepreted with many restrictions.  If one began to make exceptions and grant exemptions from the first day of the Court’s establishment, it would not augur well for the States which had deposited their instruments of ratification.  He supported the statements made by the representatives of Switzerland, Canada, Mexico and others.  Peacekeeping forces were sent for the maintenance of peace -- not to commit war crimes or engage in collective massacres.  That was why the Arab countries appealed to the Security Council that it assume its responsibilities and not accept the exemptions requested, which would damage the credibility of the Court.  He opposed the resolution.

LUIS CAPPAGLI (Argentina) said the international community had been waiting for more than 40 years to establish an international court.  During that time, the perpetrators of horrendous crimes had escaped justice with impunity.  The Court was a powerful and indispensable deterrent that would help ensure that no gross violations of human rights occurred.  Article 16 of the Statute was a rule that had been carefully drafted, establishing a balance between the maintenance of peace and justice for those who had committed crimes.  He called on the Security Council to resolve the current situation in a way that fully reflected the principles of the Rome Statute.

TUILOMA SLADE (Samoa) considered that every State in the meeting room and many in the Security Council were obligated to abide by the Rome Statute.  By treaty law, all were bound to see that the Statute was not undermined in any way.  The proposed use of article 16 was plainly an attempt to call only one provision of the Statute relevant, but many others were equally relevant.  The draft resolution under consideration by the Council would confer blanket immunity to peacekeepers, and that could not be accepted.

ABDELRAHIM ALAWADI (United Arab Emirates) said that the main foundation of the International Criminal Court was the establishment of justice.  Granting immunity to certain States was an exception to the rules of the Statute, a violation of principles that had been agreed upon.  He shared the concerns of other States regarding the granting of immunity to those who had committed crimes under the Statute of the Court.  That would give rise to the non-applicability of justice and a double standard.  He stressed that the independence of the Court must be safeguarded and that all criminals be prosecuted, with no exceptions.

RENOVAT NDAYIRUKIYE (Burundi), speaking on behalf of the African Group, said the Group was concerned because it had just celebrated the entry into force of the Rome Statute.  Today, the Rome Statute was already undergoing its first attack.  It was with regret that he learned of the terms of the resolution proposed to the Security Council.  The adoption of such a resolution would be a violation of the letter and spirit of the Rome Statute.  The reference to article 16 imposed on Member States the need to interpret the Statute in a way which was rejected in Rome in 1998.  The African Group was opposed to a Security Council resolution which endorsed unacceptable exemptions from the Statute.  The African Group supported Member States in the Security Council that opposed the adoption of such a resolution.  The Group believed that not speaking today to defend the attainments of international law in the Rome Statue would be a failure to carry out its duty to the international community.

MACLEAN KAMWAMBE (Malawi), speaking on behalf of the Southern African Development community (SADC), regretted the developments in the Security Council, which were aimed at undermining the integrity of the ICC.  He appealed to the Security Council to ensure the protection of the ICC and agreed with the concerns stated in this morning’s meeting.

VICTOR RODRIGUEZ (Venezuela) expressed concern over the possibility that the Security Council, as the result of a decision, might weaken the Statute.  Such a decision by the Security Council was not only unacceptable politically but was also questionable from a legal point of view.  A decision by the Security Council along the lines laid out in the resolution before it would be contrary to the spirit and purpose of the Rome Statute.  If such a decision were adopted, the Security Council would be exceeding the competence granted to it, which was limited to the maintenance of international peace and security. 

Venezuela was opposed to any initiative which might weaken the functioning and effectiveness of the ICC.  He hoped that the Preparatory Commission would adopt a firm, clear resolution expressing concern and rejection of any resolution which would be aimed at weakening the purpose and significance of the Court.

ALLIEU KANU (Sierra Leone) said he had continually cautioned the Commission against any attempts to emasculate the Rome Statute.  Now there was an attempt in the Security Council to do that, which he strongly opposed.  He fully supported the continued integrity of the Statute.

NOEL-EMMANUEL AHIPEAUD GUEBO (Côte d’Ivoire) said the Rome Statute was a difficult compromise that had been accepted by all.  He affirmed the total

integrity of the Statute, which must be maintained.  He supported the position of Switzerland, Canada and Australia on behalf of the Like-Minded Group.

The Vienna Convention on the Law of Treaties stipulated that treaties could be changed using procedures they themselves had elaborated, he said.  Therefore, the Statute could only be amended in the way it had decided, with the full agreement of States parties.

MARCEL BIATO (Brazil) said the integrity and role of the Rome Statute in maintaining peace and security must be preserved.  But what was really at stake in the current situation was the legitimacy and credibility of the Security Council.  If it did not act in a manner consistent with expectations of the international community, there would be difficulties and problems.

AUGUSTO CABRERA (Peru) said the draft resolution sent a negative signal to the international community, which was attempting to put an end to impunity.  Peru was confident that the effective jurisdiction of the Court would be a reality.

ZENON MUKONGO NGAY (Democratic Republic of the Congo) said he could not accept any change which would diminish the scope of the Statute.  A United Nations body could not give itself the right to change the Statute.

Mr. ROWE (Australia), speaking in his national capacity, said the current issue before the Security Council regarding the relationship between peacekeepers and the ICC was primarily one for Council members to address and resolve.  It was vital that the United States, which made a central contribution in international security and global peacekeeping activity, continued to play an active and productive role. 

Australia’s position on the Statute was different from that of the United States, he said.  He understood that the United States had concerns and also understood the dilemma that the current situation potentially created for States parties to the Statute that participated in peacekeeping operations.  He urged the Security Council members to find a solution which preserved the integrity of the Statute and the effectiveness of peacekeeping operations.  The issue must be resolved in a way which fully respected the integrity of the Statute, which was now in force.

GEORGE MCKENZIE (Trinidad and Tobago) said the integrity of the International Criminal Court must be preserved.  He was convinced that the Rome Statute was important for the entire international community to ensure good governance for all States.

MOHAMMAD ALANSARI (Kuwait) agreed with other speakers on the necessity of preserving the Rome Statute and the International Criminal Court.  He paid tribute to all of the experts who had allowed a long-awaited dream to be realized.  He stressed that the international community must unite in its efforts to preserve international peace and security.

Reading a prepared statement, Commission Chairman PHILIPPE KIRSCH (Canada) said the Preparatory Commission was deeply concerned about the current developments in the Security Council regarding the ICC and international peacekeeping.  He called on all States to safeguard the independent and effective functioning of the ICC that was complementary to national jurisdictions.  He appealed to Council members to ensure an outcome of developments which fully respected the letter and spirit of the Rome Statute.

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