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 Peacekeeping |
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This section deals with important UN Security Council Resolutions
regarding peacekeeping. They include UN Security Council Resolution
1422 and UN Security Council Resolution 1487.
Background
On June 30, 2002, on a vote of 13 in favor and one against,
the US stood alone in vetoing the Security Council resolution
extending the mandate of the UN Mission in Bosnia and Herzegovina
(UNMIBH), a critical part of the international community's
multi-billion dollar commitment to ensure long-term peace
in the region. Bush Administration officials said that the
US would not approve an extension of the Bosnian, or any other,
mission unless international peacekeepers on the ground were
given a permanent blanket immunity from arrest and prosecution
by the ICC.
Subsequently, UNMIBH was given several brief extensions due
to the temporary inability of the Security Council to find
a compromise solution. On July 3, the PrepCom held a special
plenary during which many states made statements in opposition
to the US position. On July 10, there was an open Security
Council meeting during which many additional states made statements
against US attempts leverage peacekeeping operations as a
weapon for Security Council action against the ICC. Finally,
on July 12, 2002, members of the Security Council achieved
compromise language and adopted an omnibus
peacekeeping resolution, Resolution 1422, by consensus, which allowed the
UNMIBH mission to continue uninterrupted.
The text of Resolution 1422 attempts to track the requirements
of Article 16 of the ICC
Statute, which authorizes the Security Council to act under
its Chapter VII authority to suspend any ICC proceeding on
a case-by-case basis for renewable 12-month periods. However,
while that article merely authorizes the SC to stop an active
investigation or prosecution against a specific individual,
1422 attempts to prospectively prevent the ICC from taking
up any case against an entire class of persons.
Some commentators have even questioned whether such Security
Council action is an ultra vires attempt to de facto
amend the Rome Statute by creating prospective immunity for
an entire class of persons — all peacekeepers from non-state
parties serving anywhere — solely based on their status.
This argument emphasizes that in addition to risking to undermine
the delicate balance of power between the Court and the Council
carefully negotiated in Article 16, the resolution arguably
contravenes Article 27 of the ICC Statute, which makes official
capacity irrelevant in the determination of criminal responsibility
under the Statute.
Moreover, at the time 1422 was adopted, member states such
as Canada, Brazil, New Zealand and South Africa stated that
they believe that a resolution of this character violates
the UN Charter itself, as action under Chapter VII requires,
at a minimum, the existence of a specific threat to international
peace and security. For example, at an open session of the
Council to debate the issue, Prince Zeid Al-Hussein, Jordan's
Permanent Representative to the UN, asked, "How could the
Security Council adopt a Chapter VII resolution on the Court,
when the latter cannot by any stretch of the imagination,
be considered a threat to international peace and security?"
On the other hand, some supporters of the US position argue
that the fact that the negotiators of the ICC Statute did
not envisage the application of Article 16 in precisely the
manner that unfolded in UNSC Resolution 1422 does not necessarily
invalidate the procedure that was adopted. They assert that
far from being a de facto amendment of the ICC Statute,
UNSC Resolution 1422 implements the Statute in a manner that
achieved the consensus of the U.N. Security Council. Read more detail on US efforts in an CICC
Fact sheet: Chronology of US Anti-ICC Draft Proposals Leading
to the Adoption of Security Council Resolution 1422.
US administration concerns about the difficulty of renewing Resolution 1422 in 2003 propelled US efforts to conclude
bilateral immunity agreements to prevent the extradition of
US nationals to the Court. Read
more.
In related developments, on December 4th, 2002, the UN Security
Council unanimously approved a resolution to send more peacekeepers
to the Congo after a delayed vote caused by US demands for
language keeping US peacekeepers from the ICC. There are currently
no US peacekeeping soldiers serving in the Congo, and Washington
dropped the effort after other Council members refused to
go along. Read more.
2003 Renewal
On June 12, 2003, the Security Council renewed resolution
1422 for one more year. The text of adopted resolution
1487 is identical to 1422. Before the vote, the Secretary
General and representatives of close to 60 countries spoke
out against the resolution and against renewal. Many states
argued that the resolution is unnecessary, inappropriate and
illegal under the Rome Statute, the UN Charter, and general
international law. Most explicitly rejected any attempt to
automatically renew this resolution in the future. After the
vote, eight Security Council members, plus the three that
abstained in the vote (Germany, France, and Syria) expressed
their support for the ICC and confidence in its work. Pakistan
joined the US in expressing reservations about the Court.
Read country statements,
the Secretary General's
remarks, and the United
States' comments.
In August 2003, the US threatened to veto a proposed peacekeeping
operation in Liberia unless it secured an exemption from the
ICC for personnel from non-state parties. The resolution authorizing
the mission, adopted by a vote of 12-0, includes language
that allows non-ICC member states to retain full jurisdiction
over all their "current or former officials or personnel"
involved with the mission. Not only does this constrict ICC
jurisdiction, but it infringes on the rights of states to
prosecute those who commit atrocities against their citizens.
France, Germany, and Mexico abstained in the vote. "Quite
frankly," said UN Secretary General Kofi Annan, "my sentiments
are with those who abstained from the resolution." See Security
Council Resolution 1497.
2004 Failure to Renew
On June 23, 2004, the United States announced its decision
not to bring Resolution 1487 up for a vote. Hostility toward
the text increased this year in light of the revelations of
prisoner abuse in Iraq. Numerous countries, including China,
said that they would abstain. US Ambassador Cunningham stated that, "In the absence of a new resolution, the United States will need to take into account the risk of ICC review when determining contributions to UN authorized or established operations. We will also continue to negotiate bilateral agreements consistent with Article 98 of the Rome Statue to further protect U.S. persons from the exercise of jurisdiction by the ICC." Shortly after announcing its
decision, the US pulled out peacekeepers
from several UN missions, including 2 from Kosovo and 7 from Ethiopia-Eritrea.
Read
more.
Read comments by the Secretary
General and US Officials.
Other situations
On the record so far, it appears that the US will not insist on exemption language in specific resolutions renewing or creating peacekeeping operations, but will work to water down resolution references to the ICC. On December 1, 2004, the US agreed to support Resolution 1577 extending the United Nations Operation in Burundi (UNOB) till June 2005 only after the language of the resolution was watered down to not encouarge and authorize UN investigators to cooperate with the ICC. The Security Council's four European members, the United Kingdom, France, Germany and Spain, sought to include a provision endorsing Burundi's request to have the ICC investigate and prosecute individuals responsible for the August 13th Gatumba massacre of more than 150 Congolese refugees in Burundi.
After the vote, the European members noted Burundi's strong efforts to investigate the Gatumba massacre, welcomed the country's intention to refer the matter to the International Criminal Court, and welcomed the Council's support for such international judicial assistance. The US representative said US support of the resolution was based on an understanding that it in no way directed, encouraged, or authorized the ONUB to cooperate with or support the ICC.
In September 2004, the US supported Resolution 1561 extending the UN Mission in Liberia till mid-September 2005, due to "sufficient bilateral protections" between the Government of Liberia and the US. Though "[n]ormally, the United States would seek express provisions providing such protection for personnel from States not party to the Rome Statute that contribute to any mission established or authorized by the United Nations," the US decided in this instance to facilitate continued participation due to the protections already provided from Liberia (paraphrase of a statement by Ambassador John Danforth, US Representative to the United Nations). It is unclear whether Ambassador Danforth was discussing status of forces agreements (SOFAs) or bilateral immunity agreements (BIAs) negotiated with Liberia.
In addition, on October 1, 2004, the US supported Resolution 1565, which extended the deployment and increased the numbers of personnel in MONUC, peacekeepers in the Democratic Republic of Congo. Ambassador Stuart Holliday clarified that:
"[a]s my Council colleagues know, it is the policy of the U.S. Government to ensure that members of the Armed Forces of the United States of America participating in UN peacekeeping operations are protected from criminal prosecution or other assertion of jurisdiction by the International Criminal Court, including through the possible inclusion of express provisions providing such protection. In this instance, U.S. personnel are not participating in this operation and the U.S. has an Article 98 agreement with the Democratic Republic of the Congo that would prohibit it from surrendering U.S. personnel to the ICC should they participate in the future. The U.S. supports this resolution with the understanding that the resolution does not direct MONUC to cooperate with the ICC. And fully consistent with the statement that the United States made upon adoption of General Assembly Resolution 58-318, any expenses resulting from the provision of any cooperation or support to the ICC would need to be on a reimbursable basis." — Ambassador Stuart Holliday, Alternate U.S. Representative to the United
Nations for Special Political Affairs, October 1, 2004
Ambassador Holliday's statement conforms to current US policy prohibiting US expenditures on the ICC, but more importantly indicates that the US will not veto cooperation with the Court in all situations. During the October 8, 2004 Africa Subcommittee hearing of the House International Relations Committee, James Swigert, Principal Deputy Assistant Secretary of the Bureau of International Organization Affairs of the State Department, furthered that the US would "approve U.N. peacekeeping operations only when we judge them to be absolutely necessary, in United States interest, right sized with a viable exit strategy and only after extensive consultation with the Congress. In accordance with the American Servicemen's Protection Act, we also scrutinize missions to ensure that American soldiers and U.N. peace operations are protected from possible assertions of jurisdiction by the international criminal court."
On October 22, 2004, the Security Council extended UNFICYP’s (UN peacekeeping operation in Cyprus) mandate until June 2005. After Resolution 1568 was adopted, the US representative's statement included the following, "I would also note that it is the policy of the United States Government to ensure that members of the armed forces of the United States of America participating in UN peace operations are protected from criminal prosecution or other assertion of jurisdiction by the International Criminal Court, including through the possible inclusion of express provisions providing such protection." Similar to statements made for peacekeeping missions in Liberia and the Congo, it is interesting to note that the US does not contribute personnel to the Cyprus mission and therefore may not feel the need to be covered by specific language in the resolution; contributes troops to Liberia but stated that they are covered by a BIA or SOFA; and does not contribute to the Congo mission, but still mentioned the BIA.
According to the International NGO Coalition for the ICC (CICC), the next peacekeeping missions coming up for renewal are Haiti and Georgia. While the US is contributing troops to both missions, both countries have already signed BIAs. It can be expected that the US will make statements similar to those made during the the Congo, Liberia and Cyprus mission renewals.
Texts of Final Resolutions and Drafts
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Security
Council Resolution 1577 extending peacekeeping mission in Burundi, adopted December 1, 2004 |
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Security
Council Resolution 1568 extending peacekeeping mission in Cyprus, adopted October 22, 2004 |
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Security
Council Resolution 1565 extending peacekeeping mission in the Democratic Republic of Congo (MONUC), adopted
October 1, 2004 |
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Security
Council Resolution 1561 extending peacekeeping mission in Liberia, adopted
September 17, 2004 |
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Security
Council Resolution 1497 on peacekeeping in Liberia, adopted
August 1, 2003 |
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Security
Council Resolution 1487 on peacekeeping, adopted June
12, 2003 |
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Security
Council Resolution 1422 on peacekeeping, adopted July
12, 2002 |
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US
draft Security Council Resolution July 10, 2002 (not adopted) |
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US
draft Security Council Resolution June 19, 2002 (not adopted) |
International Reaction
Click here to read about the
international reaction to US efforts to exempt peacekeepers
from non-state parties from the ICC.
Official US Statements
Decision not to renew 1487
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US
Defense Department briefing with Lawrence Di Rita,
Special Assistant to The Secretary of Defense; Brigadier
General David Rodriguez, Deputy Director for Operations,
J-3, Joint Staff, July 1, 2004 |
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LA
Times interview with Secretary of State Colin Powell,
June 24, 2004 |
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Remarks
by Richard Boucher, State Department Spokesperson,
on the US decision not to renew SC Res. 1487, June 23,
2004 |
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Remarks
by Ambassador Cunningham, US Representative to the
United Nations, on the US decision not to renew SC Res.
1487, June 22, 2004 |
Liberia
SC Res. 1487
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Statement
by Nicholas Rostow, General Counsel, on Agenda Item
154: the International Criminal Court, in the Sixth Committee,
October 23, 2003 |
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Statement
by Kim R. Holmes, Assistant Secretary for International
Organization Affairs, on the Future of US-UN Relations,
at the XXI German American Conference, Berlin, Germany,
June 13, 2003 |
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Statement
by Ambassador James Cunningham, Deputy United States Representative
to the United Nations, on the Renewal of Resolution
1422, June 12, 2003 |
SC Res. 1422
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Statement
by H.E. John D. Negroponte, U.S. Permanent Representative
to the United Nations, Remarks following UN Security Council
vote on Resolution 1422, including discussion of US
pursuance of bilateral immunity agreements, July 12, 2002 |
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Statement
by H.E. Ambassador John D. Negroponte, Permanent Representative
of the USA to the UN, at the UN Security Council open
debate on the situation in Bosnia and Herzegovina,
July 10, 2002 |
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Ambassador-at-Large
for War Crimes Issues Pierre Prosper Remarks to the Simon
Bond International Wannsee Seminar, Berlin, July 9,
2002 |
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Ambassador
John D. Negroponte, US Permanent Representative to the
UN, Remarks at UN Headquarters following the Security's
Council's Vote on a Technical Extension of the UN Mission
in Bosnia and Herzegovina, July 3, 2002 |
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Department
of Defense Briefing, Background Briefing on the Possible
Effects of the International Criminal Court on U.S. Military
Personnel, July 2, 2002 |
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Explanation
of vote by H.E. Ambassador John D. Negroponte, US Permanent
Representative to the UN, on the renewal of the mandate
for the UN Mission in Bosnia and Herzegovina, in the Security
Council, June 30, 2002 |
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Ambassador
John D. Negroponte, US Permanent Representative to the
UN, Remarks at UN Headquarters following the Vote
on Renewal of the Mandate of the UN Mission in Bosnia
and Herzegovina, June 30, 2002 |
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Ambassador
James B. Cunningham, Deputy US Permanent Representative
to the UN, Remarks at UN Headquarters on the Situation
in Bosnia and Herzegovina, June 28, 2002 |
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Ambassador
John D. Negroponte, US Permanent Representative to the
UN, Remarks at UN Headquarters on the Situation in
Bosnia and Herzegovina, June 27, 2002 |
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Secretary
of Defense Rumsfeld, Briefing on the Global War on Terrorism
(discussion of ICC and peacekeeping), June 21, 2002 |
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Remarks
by Ambassador Richard S. Williamson, United States Alternate
Representative to the United Nations, on the situation
in Bosnia and Herzegovina, at the Security Council Stake-Out,
June 19, 2002 |
Legal and Policy Analysis
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Human
Rights Watch, The Adoption of Security Council Resolution
1497: A Setback for International Justice, August, 2003 |
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Amnesty
International, The Unlawful Attempt by the Security Council
to Give US Citizens Permanent Impunity from International
Justice, May 1, 2003 |
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Human
Rights Watch, Closing the Door to Impunity: HRW Recommendations
for Renewing Resolution 1422, April 22, 2003 |
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Collection
of Legal Scholars Opinions on the Legal and Policy Implications
of Resolution 1422, compiled by Parliamentarians for
Global Action, April 2003 |
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Kai
Ambos, International Criminal Law Has Lost Its Innocence
GLJ Vol. 3 No. 10 - 01 October 2002 - European & International
Law |
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ASIL
Insight: Authority of the Security Council to Exempt Peacekeepers
from International Criminal Court Proceedings, by Bryan
MacPherson (July 2002) |
Read media reports on reaction to US
efforts in the Security Council.
Texts of UN Agreements
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