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 United
Nations Actions |
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Secretary General
Security Council
Referrals
Peacekeeping
Resolutions
General Debates
General Assembly
UN-ICC Relationship Agreement
Sixth Committee (Legal)
Third Committee (Social, Humanitarian & Cultural)
On December 3, 2007 UN Secretary-General Ban Ki-Moon hailed the ICC as "the centrepiece of our system of international criminal justice" in his remarks at UN Headquarters to the sixth session of the Court's Assembly of States Parties. He also urged all Member States to assist in enforcing the outstanding arrest warrants. Click here to read the full text of the address.
In recognition of the fifth anniversary of the entry into force of the Rome Statute on July 1, 2007 the Secretary-General issued a statement praising the ICC and noting that "[a]lready the activities of the Court and its Prosecutor have a deterring effect on potential perpetrators of international crimes."
The September 2005 report of the Special Representative of the Secretary-General for Children and Armed Conflict mentions the ICC several times, referring to the Rome Statute and the Rules of Procedure and Evidence of the ICC provisions designed to protect children. Click here for the full report.
Under the Rome Statute of the International Criminal Court, the Special Representative proposed three child-specific provisions, which have been classified as war crimes, namely: the conscription, enlistment or use in hostilities of children younger than 15 years; intentional attacks on hospitals and schools; and grave acts of sexual violence. In addition, the forcible transfer of children of a group targeted for intentional destruction constitutes genocide under the statute of the International Criminal Court.
In addition, Annual Report of the Secretary-General on the Work of the Organization refers to the ICC of August 2005, its Relationship Agreement with the United Nations, and the Security Council Resolution 1593 referring Sudan to the ICC. Click here for the full report.
On March 21, 2005, UN Secretary General Kofi Annan made public his report "In larger Freedom: Towards Development, Security and Human Rights for All." The report puts forward a comprehensive action plan to strengthen the UN's capacity for tackling poverty, security threats and human rights abuses. Click here for specific ICC references from the report.
The High-level Panel on Threats, Challenges and Change was convened by the Secretary General in 2003 to assess current threats to international peace and security. With regards to the ICC, their December 2, 2004 report "A More Secure World: Our Shared Responsibility" recommended that all countries sign and ratify the Rome Statute and called on the Security Council to be far more ready to refer cases to the Court.
During Secretary-General Kofi Annan's annual year-end press conference on December 21, 2004, when questioned on how the Security Council should address the situation in Darfur, Sudan, Kofi Annan stated: "A majority of the Council members would want the ICC to play a role, but we also know that the US has a problem with any referral to the ICC... But I think those who are perpetrating these crimes must not be allowed to get away and impunity must not be allowed to stand." Click here for a transcript of the Press Conference.
Referrals
On March 31, 2005, the Security Council, acting under Chapter VII of the UN Charter, adopted Resolution 1593 which referred the Darfur situation to the ICC. The resolution passed by a vote of 11 states and four abstentions, which included the United States, Algeria, China and Brazil. The referral purports to exempt from ICC jurisdiction non-Sudanese citizens from States not party to the ICC Statute, including Americans.
The referral was based on findings from the UN International Commission of Inquiry on Darfur. The Commission's February 1st report "strongly recommend[ed]" that the Security Council invite the International Criminal Court to pursue prosecutions against those suspected of the worst abuse. The Bush administration initially proposed that future Darfur prosecutions be sent to a new tribunal, jointly run by the African Union and the United Nations, and be based at the International Criminal Tribunal for Rwanda, in Tanzania. The Commission's report, however, opposed using a temporary tribunal since while the ICC is ready to act, it could take a year to start up an improvised court, which would be less credible and efficient than the ICC. Click here for the Secretary General's January 2005 report on Sudan.
On June 29, 2005, ICC Prosecutor Luis Moreno Ocampo briefed the Security Council on the status of his investigation in Darfur. He declared: "there is a significant amount of credible information disclosing the commission of grave crimes within the jurisdiction of the Court having taken place in Darfur." The Prosecutor's report reiterates that the investigation will focus on the persons most responsible for the crimes and that these efforts could be complemented by traditional African methods for justice and reconciliation. It also states that the support and cooperation of States Parties and non-States Parties to the ICC will be important to ensure the effective implementation of UN Security Council Resolution 1593 (2005), which referred the Darfur situation to the ICC. Click here to read other reports and statements to the Security Council.
The referral represents a major breakthrough for advocacy in the U.S. for the ICC. The United States has attempted to explain this as an exceptional situation that marks no change to the U.S. position on the Court. However, the U.S. agreement on the referral seriously and permanently undercuts basic American arguments against the Court: that it will be ineffective and useless; worsen, or not assist, the resolution of conflicts; and that it will inevitably be politicized. Moreover, groups in the U.S. whose opposition to the Court the administration previously feared assured it of their support for the referral.
On June 16, 2008 the United States presidency of the UN Security Council issued a Presidential Statement (PRST) adopted by consensus calling on Sudan to cooperate with the ICC, consistent with Resolution 1593, including on arrest warrants issued by the Court. It followed the June 5, 2008 seventh bi-annual report of ICC Prosecutor Luis Moreno-Ocampo to the Security Council regarding his office's investigation into crimes committed in the situation in Darfur. In his statement to the Council, the Prosecutor again called for the arrest of Ahmad Harun and Ali Kushayb and stated that his office would bring two more Darfur cases later this year. Following the report, Security Council President and US Ambassador Zalmay Khalilzad reiterated the US commitment to justice for Darfur and support for a Security Council PRST in order to achieve accountability.
Peacekeeping
Click here for further information on peacekeeping and the ICC.
Resolutions
Protection of Civilians
The U.S. renewed its effort to delete all references to the ICC in the Security Council's upcoming Resolution on the Protection of Civilians in Armed Conflict. This resolution aims to address key developments that have taken place since the Council's April 2000 resolution on the protection of civilians (SC Resolution 1296). Despite overwhelming recognition at the UN Security Council open debate of the importance of the ICC in the protection of civilians in armed conflict, the reference to the ICC in the draft Security Council resolution is now in jeopardy because of the sole objections of the United States.
The Security Council debate on the resolution is now going to be rolled-over until January 2006. The 2005 Report of the UN Secretary-General on the Protection of Civilians in Armed Conflict reiterated this same emphasis on the ICC's role in protecting civilians when Secretary- General Kofi Annan stated: "In the case of Darfur, the Security Council, through its referral to the International Criminal Court, reaffirmed its commitment to adopt appropriate measures to address the deliberate targeting of civilian populations and systematic, flagrant and widespread violations of international humanitarian and human rights law."
Humanitarian aid workers
In August 2003, the US refused to join a resolution protecting humanitarian aid workers — even after the bombing in Baghdad that killed 22 UN workers — because it referred to the fact that the ICC (alone) has explicitly criminalized attacks against aid workers as war crimes. The version that passed instead referred indirectly to "existing prohibitions under international law." See SC Res. 1502, below.
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Security
Council Resolution 1502 on Protection of United Nations
personnel, associated personnel and humanitarian personnel
in conflict zones, adopted on August 26, 2003 |
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Daily Press Briefing with Philip T. Reeker, Spokesman, Department of State, August 25, 2003, on the humanitarian workers resolution, July 31, 2003 |
General Debates
Justice and the Rule of Law
On October 6, 2004, the Security Council held an open debate on Justice and the Rule of Law, to follow-up on the Secretary General's report "The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies" (S/2004/616) reissued on August 23, 2004. In the report, the Secretary General calls the ICC:
"the most significant recent development in the international community's long struggle to advance the cause of justice and rule of law... the Court is already having an important impact by putting would-be violators on notice that impunity is not assured and serving as a catalyst for enacting national laws against the gravest international crimes... It is now crucial that the international community ensures that this nascent institution has the resources, capacities, information and support it needs to investigate, prosecute and bring to trial those who bear the greatest responsibility for war crimes, crimes against humanity and genocide, in situations where national authorities are unable or unwilling to do so. The Security Council has a particular role to play in this regard, empowered as it is to refer situations to the International Criminal Court, even in cases where the countries concerned are not States parties to the Statute of the Court. At the same time, I remain convinced that all States Members of the United Nations that have not yet done so should move towards the ratification of the Rome Statute at the earliest possible opportunity."
The President of the Council issued a statement on behalf of the Council during the October 6, 2004 Security Council meeting which made no mention of the ICC specifically. Of the 41 countries which spoke, approximately 27 countries referred to the ICC in their statements, including the United Kingdom, Germany, the Russian Federation, Spain, the Netherlands (speaking on behalf of the European Union), Australia, Jordan, Austria, Uganda, South Africa, Japan, France, and Canada. All highlighted the importance of the ICC in the fight against impunity and many encouraged the Security Council to refer situations to the ICC. They also stressed that more than half of UN member states were now party to the Rome Statute.
The US reiterated its opposition to the ICC, stating it could accept the presidential statement because it did not endorse the ICC. Specifically Ambassador John Danforth stated:
"We note, of course, that the report expresses some views we do not share. The report does not properly respect national decisions about criminal justice, particularly sentences a particular society may deem appropriate. And, as this Council and the wider membership of the United Nations know full well, the United States has fundamental objections to the International Criminal Court created by the Rome Statute. Our problems with the ICC concern the rule of law. We believe the Court should not have jurisdiction over citizens of States that are not parties to the Rome Statute. We believe that the Rome Statute does not reflect due process of law, as we understand it, because, among other things it allows multiple jeopardy and does not provide for jury trials as our Constitution requires. We believe the ICC runs a high risk of politicization and is not accountable. And we believe this ICC clashes with the international system of the UN Charter. It should come as no surprise therefore that we do not endorse the report’s embrace of the ICC. We can accept the Presidential Statement today, because it respects our inability to support the ICC and does not explicitly or implicitly endorse the ICC." — Ambassador John C. Danforth, U.S. Representative to the United Nations, October 6, 2004
On November 26, 2007, the General Assembly adopted by consensus its annual resolution on the International Criminal Court. Prior to the adoption of the resolution, Ambassador Alejandro D. Wolff, US Deputy Permanent Representative to the UN, reiterated the Bush Administration's concerns about the ICC's jurisdiction as well as oversight of the Court. The UN body adopted similar resolutions in 2006, with similar objections from the US, and in 2005. In 2005, US Minister Counsel for International Legal Affairs Carolyn Wilson made a statement in the General Assembly expressing US concerns about the Court.
The World Summit Outcome Document was considered during the High-Level Plenary meeting of the 60th session of the UN General Assembly (GA) held from September 14-16, 2005. Seven governments expressed support for the International Criminal Court in their statements. The GA held a General Debate on September 17-23, 2005. Of the States representatives making statements, 17 made specific references to the ICC. Click here for statement excerpts highlighting the ICC.
Following losses in the Security Council in July 2004 to exempt UN peacekeepers from ICC prosecution, the US has increasingly become isolated in the 59th General Assembly, suffering sweeping defeats in its efforts to weaken references to the ICC in resolutions. This marks a shift in US policy to allow formal consensus on ICC language — after ensuring that its objections are placed on the record. For example, on November 16, 2004, when the US proposed an amendment eliminating ICC references in a disappearances resolution, the US stood alone in the final vote, with 117 countries voting against the amendment, and 31 abstentions. Overall, the US has attempted to weaken seven references to the Court in committee and plenary resolutions, losing incredibly in three instances when the proposed US amendment was called to a vote. See below for further details of US losses in the Third and Sixth GA Committees.
As during the previous year, in December 2004, the US expressed its discontent with two ICC references in the annual GA resolution on the safety and security of humanitarian personnel and protection of UN personnel, introducing amendments deleting references to the Court. The European Union, coordinating the resolution, felt strongly that references to the ICC were relevant to the text of the resolution, since the Court could play an important role in bringing to justice those responsible for attacks against humanitarian personnel and help end impunity for such attacks.
The American introduced amendments were rejected by a recorded vote of 1 in favor (United States) to 89 against, with 27 abstentions (see annex XXVII). The main text was then adopted without a vote. The continuing persistence of the US delegation demonstrates its recognition that it has nothing to lose by ending up in a tiny minority on the losing side of a contentious vote.
Relationship Agreement between the ICC and the UN
At the 58th Session of the General Assembly, on September 13, 2004, the Assembly adopted the draft relationship agreement between the International Criminal Court and the United Nations (A/RES/58/318), and decided to apply the Agreement provisionally pending its formal entry into force. Before the decision, the US representative, as in past proceedings, reiterated the US's opposition to the Court. The official US position respects the right of States to become party to the Rome Statute, but expects similar respect for its decision not to become party to that instrument. During negotiations on the resolution, the US insisted on including some specific language according to which all expenses accrued by the UN as a result of the implementation agreement would be on a reimbursable basis, and hence not bind non-States Parties to financial implications of the Court's continuance. The US continued to claim its concerns on the possibility of politically motivated prosecutions of its servicemembers and leaders. The representative also stated that the Rome Statute did not satisfactorily address due process concerns, particularly when the Court had to reconcile various languages and legal precedents. He continued to express concerns that the ICC diluted the work of the Security Council, particularly due to its independence from the UN. The US did not join the consensus, but clarified that the US position should reflect its commitment to the rule of law, not opposition to it.
China’s representative expressed his appreciation for the draft relationship agreement, understanding the need for the establishment of an independent international judicial body. China looked forward to efforts to strengthen that relationship, but was not fully satisfied with the current text of the Statute. The representative believed that all official documents should be distributed simultaneously in all six languages. Click here for the official UN press release.
On October 4, 2004, Judge Philippe Kirsch, President of the ICC, and Secretary-General Kofi Annan signed the cooperation agreement, entering the agreement into force. The Agreement recognizes the role and mandates of both institutions and defines the terms on which the UN and the Court will be brought into relationship and will cooperate closely on matters of mutual interest. View the Agreement: Part I and Part II.
The institutional relations between the Court and the UN are defined in the Agreement. It includes the exchange of representatives, the participation of the Court in the General Assembly of the UN in the capacity of observer; administrative cooperation, the provision of conference services on a reimbursable basis and the use of the UN laissez-passer as a valid travel document by some ICC officials.
With regard to the judicial assistance, the UN undertakes to cooperate if the Court requests the testimony of an official of the UN or one of its programs, funds or offices. In addition, the Agreement defines the mechanisms of cooperation between the Security Council and the Court concerning a referral by the Council of a situation in which one or more crimes under the jurisdiction of the Court appears to have been committed. Article 18 of the Agreement defines the terms of cooperation between the UN and the Prosecutor with respect to investigations, exchange of information, conditions of confidentiality of information, protection of persons and security of any operation or activity of the UN. It further addresses issues of privileges and immunities and protection of confidentiality.
Sixth Committee (Legal)
Following losses in the Security Council in July 2004, the US has increasingly become isolated at the General Assembly, suffering sweeping defeats in its efforts to weaken references to the ICC in resolutions.
On October 14, 2004, the General Assembly Sixth Committee (Legal) discussed the start of judicial functioning of the ICC. Delegates discussed the first two cases, the Victims Trust Fund, the Court's jurisdiction, its relationship with the Security Council, among other items. Nicolas Rostow, the US representative, reiterated the US objections to the Court, insisting on the existence of bipartisan national consensus on the issue, where both parties in Congress voted for the American Servicemembers Protection Act. He furthered that no UN funds could be used for the Court except on a reimbursable basis, since Congress stipulated that none of its funds could be used to support the Court.
On November 19, 2004, in the face of US attempts to have the ICC taken off the UN General Assembly agenda, the Sixth Committee unanimously passed its resolution (and corrigendum) on the ICC without a vote. The resolution calls upon states not yet parties to the Rome Statute to consider ratifying the statute, provides that the ICC may attend and participate in the work of the GA as an observer, may submit reports on its activities to the GA, and will be on the agenda of the GA plenary from next year on.
Rather than face a lost vote and heated confrontation with many of its key allies, the US did not call for a vote, as they had been threatening to do, but did not join the consensus. Providing an explanation of the US position, Eric Rosand, Legal Advisor, said the US could not join the consensus as the US opposition to the Rome Statute remained clear and unchanged. The danger of politically motivated prosecutions was of deep concern. Nothing about the Court's structure provided assurance against political trials. The Court was an institution of unchecked power with its authority unconstrained by adequate checks or balances. The Rome Statute also provided insufficient opportunity for Security Council oversight, and hence the US could not support the Court.
Further, he said the Court was an independent body with its own separate States parties. The Relationship Agreement between it and the General Assembly did not bind States who were non-parties to the Court with regard to the financial implications of the Court's activities. Full reimbursement of all expenses incurred by the United Nations on behalf of the Court was required. Also, agreements had been signed between his country and 96 nations to ensure that United States citizens and military personnel would not be surrendered to the Court. Finally, while the US respected the right of States to become parties to the Rome Statute, the decision not to be a party should also be respected.
In explanation of its position after the action, Canada's representative said approval of the resolution sent a strong message about the Court's important role in eliminating impunity for the worst crimes. The concerns of those who were not States parties were misguided due to the ICC's legitimate and necessary role in the international legal system. Undermining the Court sent the wrong message, as a signal to the forces of impunity.
The General Assembly adopted the resolution on December 2, 2004. The US delegation dissociated itself from consensus on the resolution. The European Union followed with a statement in support of the Court as 'beyond doubt the most significant recent development in the long struggle to advance the cause of justice and rule of law, thereby eradicating impunity.' The EU continued to state that concerns about the Court were unfounded and reaffirmed the EU guidelines on bilateral immunity agreements.
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Excerpts from the 58th General Assembly, Sixth Committee, October 20, 2003 |
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Plenary Resolution, International Criminal Court, A/RES/58/79, 58th General Assembly, Agenda item 154, December 11, 2003 |
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Draft Resolution, International Criminal Court, 59th General Assembly, Sixth Committee, Agenda item 146, November 17, 2004 |
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Draft Resolution, International Criminal Court, Corrigendum, 59th General Assembly, Sixth Committee, Agenda item 146, November 18, 2004 |
Third Committee (Social, Humanitarian & Cultural)
The loses in the Third Committee (Legal) led to further isolation for the US in the Third Committee (Social, Humanitarian & Cultural), suffering additional defeats in its efforts to weaken references to the ICC in resolutions.
Question of Enforced or Involuntary Disappearances
On November 16, 2004, the Third Committee (Social, Humanitarian and Cultural) resolution on the Question of Enforced or Involuntary Disappearances was adopted despite US opposition to preambular paragraph 7 on the ICC. The move signals that the US position at the General Assembly may have shifted to a complete rejection of any ICC reference, both factual and values based.
The US amendment to the draft resolution read: "Recognizing that enforced disappearances are a crime against humanity under international law and that States and relevant organs of the UN have a responsibility to ensure that those responsible are brought to justice through appropriate domestic or international processes." The US felt that the international community should use all available and appropriate regional and international justice mechanisms to combat the phenomenon of enforced or involuntary disappearances and to hold those responsible for them to account.
In the final vote, the US amendment had 1 in favor (the United States), 117 against, 31 abstentions. The Committee then adopted the draft resolution without a vote.
Extrajudicial, Summary or Arbitrary Executions
On November 22, 2004, the Third Committee adopted a resolution related to extrajudicial, summary or arbitrary executions. The resolution was adopted by a recorded vote of 130 in favor to none against, with 45 abstentions. Noting with grave concern that such practices could result in genocide or crimes against humanity, and that impunity continued to be a major cause of the perpetuation of violations of human rights, the text reiterated the obligation of all governments to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions.
The US representative proposed an amendment to operative paragraph 6 of the resolution dealing with the ICC, which read: "noting that extrajudicial, summary or arbitrary executions are a crime under the Rome Statute of the International Criminal Court." The representative of Finland said the amendment proposed by the United States was not acceptable to the co-sponsors. The proposed formulation failed to address the issue of ratification of the Rome Statute. The reference to the ICC was particularly relevant in the resolution, given its subject matter. She thus requested a recorded vote and said her delegation would vote against it. The Committee then rejected the amendment to the paragraph by a recorded vote of 4 in favor (India, Palau, Nicaragua, and the United States) to 117 against, with 41 abstentions.
The representative of the United States noted that he had been compelled to request the amendment to the paragraph on the ICC, as his country continued to have concerns in that regard. However, the US felt that the international community should use all appropriate regional and international mechanisms to address the phenomenon of extrajudicial, summary or arbitrary executions and to hold those responsible for such acts accountable.
Rights of the Child
On November 23, 2004, the Committee took action on proposed amendments by the United States to the resolution on the Rights of the Child. After rejecting amendments to the omnibus text on the rights of the child in seven separate recorded votes, the Committee approved the original text, as orally revised by its sponsors, by a recorded of 170 votes in favor to 2 against (Palau, United States), with 3 abstentions (India, Indonesia, Iraq).
The US proposed a number of amendments to the resolution, including one revising the resolution's ICC reference: "Calls upon all States to end impunity for perpetrators of crimes committed against children, takes note of the entry into force of the Rome Statute of the International Criminal Court, and notes in particular the inclusion therein, as a war crime, of conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities in both international and non-international conflicts."
Speaking in explanation before the vote on the text as a whole, the representative of Brazil rejected the amendments proposed by the US, noting that the proposals contained amendments that had been agreed in consultations without any disagreement from the sponsor of the amendments, and that the Convention on the Rights of the Child was one of the international instruments that had enjoyed the greatest adherence thus far and had thus, set the standard. With regard to the International Criminal Court, Brazil noted that the proposals by the United States referred only to the entry into force and to one crime in particular, which was unacceptable. For several reasons, the main co-sponsors remained firmly opposed to the proposals and would vote against them.
The amendments contained in the proposals by the United States, with the exception of operative paragraphs 3 bis and 14, were then rejected by a recorded vote of 2 in favour (Palau, United States), to 126 against, with 36 abstentions.
Situation of Human Rights in the Democratic Republic of Congo and Sudan
Returning to the controversy over its use of country-specific resolutions, the Third Committee decided on November 24th to take no action concerning the human rights situations in Zimbabwe and the Sudan. The representative for South Africa, on behalf of the African Group, stated that country-specific resolutions could not engender the cooperation of concerned countries, which remained crucial to the resolution of problems, but only exacerbated already-existing situations.
The Committee did approve a revised country-specific resolution on the situation of human rights in the Democratic Republic of the Congo by a recorded vote of 72 in favour to two against, with 94 abstentions, after rejecting one proposal to amend the text and deciding to retain three other paragraphs by four separate recorded votes.
The US proposed amendment to the DRC resolution: "OP7. [c]alls upon the Government of National Unity and Transition to take specific measures: (g) To hold those responsible for violations of human rights and international humanitarian law, as well as crimes against humanity, accountable through appropriate national and international judicial mechanisms."
The Netherlands, on behalf of the European Union, and the Democratic Republic of Congo (DRC), made statements in opposition to the amendment, with the DRC noting that they are an ICC State Party and that the ICC is operating on their territory. The amendment was defeated with 2 in favor (US and Palau), 116 against, and 37 abstentions.
The resolution as a whole was passed with 72 in favor, 2 against (Rwanda and Uganda) and 94 abstentions. As the concerned country, the representative of the Democratic Republic of the Congo concluded that the draft should have abided by the recommendations laid down by the Independent expert on his country, including for the establishment of an independent tribunal, to address crimes committed before the ICC jurisdiction came into force. As it stood, the draft did not provide an accurate reflection of the expert's conclusions, and hence the DRC could not support the resolution.
Speaking in explanation after the vote, the US representative said her country remained concerned about the continuing violations of human rights and rule of law in the Democratic Republic of the Congo. She appealed to all parties to stop the violence and to the transitional Government to respond and end impunity. However, the United States had longstanding concerns about the International Criminal Court. Thus, the proposed amendment had called for holding individuals responsible through appropriate national and international mechanisms. The US stated that they voted for the resolution as a whole, although their amendment was not adopted.
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