NGO PRESS CONFERENCE ON INTERNATIONAL CRIMINAL COURT

The Security Council had acted with “a gun to its head” last year when it adopted the resolution exempting American peacekeepers from prosecution by the International Criminal Court (ICC) for one year under threat that the United States would veto resolutions to extend peacekeeping operations, and consideration of the resolution’s renewal this year faced the pressure of having to bridge the divide that had emerged in the Council over Iraq, correspondents were told today at a Headquarters press conference.

Representatives of Amnesty International, the Coalition for the International Criminal Court, and Human Rights Watch addressed correspondents on the eve of a public meeting of the Security Council on the proposed renewal of resolution 1422 (2002), which would exempt from prosecution, for another year, all United Nations peacekeeping personnel from a State not party to the Rome Statute.  Entry into force of that Statute, which operationalized the Court, took place on 1 July 2002. 

(The Statute has been signed by 139 countries and ratified by 90 of them.  Security Council members Angola, Cameroon, Chile, Guinea, Mexico, Russian Federation, and Syria have signed, but not ratified; Bulgaria has both signed and ratified, as have France, Germany, Spain, and the United Kingdom; Pakistan and China have neither signed nor ratified; and the United States technically has signed, although it has expressed its intention not to become a party and that it has no legal obligations arising from its signature).  

Bill Pace of the Coalition for the International Criminal Court said that, with the entry into force last July of the Rome Statute, the international community had made a tremendous commitment in law and politics that the severest crimes against humanity would never again be allowed to occur with impunity.  Apart from the debate under way in the building, the real story was that the ICC was swearing in its final officials next week at The Hague, Netherlands.  By the end of the month, all of the main officers of the Court would have been elected and begun serving.

He welcomed the fact that governments had requested, over fierce opposition, an open meeting prior to the Council’s decision on renewing resolution 1422 (2002).  He was also pleased to note that one or more countries would abstain or vote “no” on the text.  His main concern this year had been that the resolution should not become an automatic technical rollover text.  That had been achieved.

In fact, that resolution, with the exception of perhaps just one country, had been viewed as unnecessary and inappropriate, in violation of the spirit and language of the Rome Statute and incompatible with international law, he continued.  The Secretary-General, in a strong letter to the United States Government last summer, had said that text was an inappropriate use of authority of Chapter VII of the United Nations Charter and risked using that Chapter to amend multilateral treaties with which individual countries disagreed.  Mr. Pace said he would sustain vigorous efforts to raise awareness and concern, this year and each additional year, until the text was dropped from the Council’s agenda.

Richard Dicker of Human Rights Watch recalled that the United States had first introduced its version of resolution 1422 (2002) as a way of gaining “permanent” exemption for United States citizens participating in peacekeeping operations.  Despite the fact that it had held the people of Bosnia hostage when it vetoed the extension of the peacekeeping mission there, and despite the fact that it also threatened to veto the renewal of every other peacekeeping operation, it had been unable to obtain a permanent exemption.  Last July, it had obtained a phrase concerning the Council’s intention to renew the text.

The conventional wisdom was that that would just become one of the resolutions that the Council rolled over year after year, “no muss, no fuss”, he said.  So, the American side got through the back door what it had been unable to get through the front door.  The United States had expected to renew the resolution “without a murmur”.  Instead, it was going to get an open debate.  He expected strong statements of support in tomorrow’s debate for the Court’s potential to be the most import human rights institution created in the last 50 years, with its potential to bring justice to the Ituri district in north-eastern Congo, and elsewhere.

He said he also expected to hear opposition to the unlawful nature of that resolution.  The message tomorrow would be that the resolution would never become automatic.  Now was the post-Iraq war environment, in which all Member States were expected to give the United States carte blanche so as not to risk offending the delicate sensitivities of policy makers in Washington.  But, United States policies on the ICC were undermining the human rights ideal and putting it at risk.

The United States was engaging in unconscionable activities to pressure small and vulnerable countries to sign bilateral agreements on exemption, he said.  In the Bahamas, officials were told there would be no more support for improving the airport.  In Croatia, they were told that a signature on the bilateral agreement equalled its accession into the North Atlantic Treaty Organization (NATO).  Foreign Ministers of Caribbean Community (CARICOM) meeting last month were threatened that lack of agreement would mean the end of the “new horizons assistance” programme, which included rural dental care and hurricane disaster relief.  It was also threatening to terminate its military assistance to States.  Leadership required more than a big stick and a thick wallet, he said.

Yvonne Turlingen of Amnesty International said her organization had conducted a detailed study of resolution 1422 (2002) and had concluded, for the first time in its history, that a resolution passed by a body of the United Nations was unlawful.  The resolution contravened the Rome Statute, the United Nations Charter, and international law.  That had been adopted under Chapter VII, which meant that the Charter had to determine whether there was a threat or breach of the peace, or an act of aggression.  Resolution 1422 also created a “special system of justice” for one particular class of people.  That went against the very essence of international human rights law and of the Charter.

Asked whether the Security Council was a “weak spot”, in that only five of its members had signed and ratified the Statute, Mr. Pace said countries whose respect for international law was lacking were making it onto the Council.  That was a whole other problem to be tackled over the coming years.  To a further question, he said he did not see the resolution assuming the stature of customary international law.

Asked why the argument that the resolution was unlawful and was contrary to the United Nations Charter had not won the support of Council nations that had signed or ratified the Statute, he said that one need only point to the veto of the peacekeeping mandate in Bosnia and the threat that others would be vetoed by the United States.  The Council had acted under extreme duress last year.  The explanation for that vote was the threat that was made to United Nations peacekeeping operations.  There had been no support or even warm agreement; that resolution had been adopted with “a gun to the head of the Council”. 

He said that the conditions this year were different in some ways, and in other ways, more difficult.  He had not yet heard about a threat from the United States side about vetoing a peacekeeping mandate but he said he would be “willing to bet his son’s college tuition that if the Council debate got that far, we would quickly hear about that”.  The environment this year was one in which everyone had to get along to “repair the strains”, the damage to the Council with respect to bilateral relations with Washington.

The interventions to be made tomorrow would take on an even greater significance than last July, when it was politically less costly for States to inscribe on list for that open meeting.

Speaking as a United States citizen, Mr. Pace said that if National Security Adviser for the United States, Condoleeza Rice, and the National Security Council passed a resolution that amended the United States Constitution or any other United States law, there would be a firestorm of protest -- not under the substance of such a resolution, but over its inappropriateness, its illegality.  That was the concern here of civil society groups and other governments.  Other governments would make extraordinary compromises, in order to satisfy the political and financial pressures.

To a further question, Mr. Dicker said the Middle East and North African regions needed real work to encourage accession to the Statute.  There was a real vacuum of support for the Court there, which was linked to the “held back” state of regional human rights institutions.  The failure of Arab States to ratify that Treaty was unfortunate and part of a larger issue of respect for human rights norms.  Encouraging their support was a difficult, but necessary, row to hoe.  He had been distressed by the Israeli Government’s decision to follow in the wake of United States President George Bush’s announcement that it considered its signature to the Treaty to be withdrawn. 

Responding to another question, Mr. Dicker explained that article 98 of the Treaty had been included virtually at the end of the Rome Conference as another concession to the request of the United States Government negotiators, in order to “raise the comfort level” in Washington with the Treaty.  Its specific purpose was to acknowledge the existence of “status of forces” agreements, by which United States troops deployed in Italy, for example, were held accountable in a criminal case according to the terms of the “status of forces” agreement between the United States and Italy.

In that instance, he explained, the United States was trying to protect any citizen on vacation and engaged in mercenary activity or to protect contractors.  So, there was a complete divergence between the intention of article 98 and what the United States was using it to accomplish.  It was inaccurate, therefore, to refer to the bilateral agreements as “article 98” agreements.  The concern was that those agreements would create a “two-tiered” system of justice, one that applied to everybody else, and one that applied only to United States nationals because their country had the “muscle and the wallet” to negotiate them.  He would not be surprised, if the United States was successful in that regard, to see other “heavyweight States” in their subregions decide that if that was good enough for Washington, why not for us?

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