The United States dropped the atomic bomb of Article 16 of the ICC Statute: Security Council power of deferrals and Resolution 1422.

Author:El Zeidy, Mohamed M.
Position:Immunity from jurisdiction of International Criminal Court
 
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ABSTRACT

This Article discusses the recent adoption of the Security Council Resolution 1422 and its impact on international law. The Author asserts that the United States--a major proponent of Resolution 1422--desires to immunize its leaders and soldiers from the International Criminal Court's jurisdictional powers. The Author begins by describing the drafting history of Article 16 and its legal consequences. Upon highlighting the most significant reasons for opposing Resolution 1422, the Author delineates how the Resolution mirrors the inconsistency with the United Nations Charter and the Law of Treaties. Finally, the Author concludes that Resolution 1422 should be rejected because it violates certain peremptory norms and it conflicts with the letter and the spirit of existing international laws.

TABLE OF CONTENTS

  1. INTRODUCTION II. BACKGROUND III. ARTICLE 16 A. Drafting History B. Legal Consequences IV. ARTICLE 16 IN LIGHT OF SECURITY COUNCIL RESOLUTION 1422 V. RESOLUTION 1422 IN LIGHT OF THE U.N. CHARTER AND LAW OF TREATIES VI. RESOLUTION 1422 AND JUS COGENS VII. FINAL OBSERVATIONS REGARDING RESOLUTION 1422. VIII. CONCLUSION I. INTRODUCTION

    On July 12, 2002 the Security Council (Council) adopted Resolution 1422, which is based on Article 16 of the International Criminal Court Statute (ICC Statute). For a renewable period of twelve months, the Resolution grants the Council authority to stop the commencement or continuation of a criminal investigation or prosecution.

    Interpreters of Resolution 1422 have used different constructions to analyze the Resolution's meaning and its ramifications. One dominant theory posits that the adoption of Resolution 1422 delineates the Council's intent to augment its powers by amending the International Criminal Court Treaty. Thus, critics have urged against its adoption because the Resolution contradicts the letter and the spirit of existing international laws.

    This Article sheds light on the essence of Resolution 1422 by challenging its legality and measuring its compatibility with different principles of international law. Part II describes why the United States supported the adoption of Resolution 1422 in light of the ICC's jurisdictional powers under Article 16 of the ICC Statute. Part III highlights drafting history and the legal consequences of Article 16. Part IV then examines the most significant statements made by formal and informal state representatives, which reflect their unanimous opposition to the Resolution's adoption. Part V discusses Resolution 1422's effect on the U.N. Charter and the Law of Treaties by describing how the Resolution mirrors the inconsistency with the two laws and the dangerous consequences resulting from such inconsistency. Part VI advocates for the invalidation of Resolution 1422, via the use of peremptory norms, because the Resolution violates those norms. Finally, Part VII examines, inter alia, the different possibilities of interpretation of the Resolution and concludes that the language of the Resolution is contradictory and, because of its misformulation, there may be practical problems in its application.

  2. BACKGROUND

    On July 12, 2002, the Security Council passed a dangerous resolution that paralyzed the International Criminal Court's (ICC) jurisdiction over U.S. soldiers participating in the peacekeeping operations in Bosnia and Herzegovina. (1) The original draft resolution intended to protect only the U.S. forces. Yet, due to international criticism against the United States, the Council adopted the current resolution protecting not only U.S. soldiers, but all non-member countries of the Rome Treaty from lawsuits under the ICC Statute. (2)

    At the outset, the United States requested that the Security Council grant immunity to U.S. soldiers in Bosnia and Herzegovina from the ICC's jurisdiction for one year. (3) If the Council would not accept the proposal, then the United States threatened to use its veto power to stop the renewal of the period of their mission in Bosnia-Herzegovina, which was to expire on July 15, 2002. (4) Even after extensive debates regarding the ICC's jurisdiction over peacekeeping forces from non-party states, the Council nonetheless adopted Resolution 1422. (5)

    Resolution 1422 exempts "current or former officials or personnel from a contributing [non-party State] to the Rome Statute" from standing trial before the ICC for a renewable one-year period beginning July 1, 2002. (6) The language of the Resolution impedes the ICC prosecutor (7) from commencing or continuing an investigation, or prosecuting troops whenever any "case arises" pursuant to Articles 6, 7, and 8 of the ICC Statute. (8)

    Upon the ICC Statute's enactment on July 1, 2002, the United States chose not to gamble with its soldiers by silently remaining as an observer. Under Article 12(2)(a) of the ICC Statute, U.S. soldiers were required to stand trial before the ICC (9) even though the United States was not a party to the Rome Treaty. (10) Ambassador David Scheffer, who led the U.S. delegation in Rome, also recognized this danger, and thus, stated:

    [A]rticle 12 of the ICC treaty reduces the need for ratification of the treaty by national governments by providing the court with jurisdiction over the nationals of a non-party state. Under Article 12, the ICC may exercise such jurisdiction over any one any where in the world ... if either the state of the territory where the crime was committed or the state of nationality of the accused consents ... [hence] the treaty exposes non-parties ... (11) Accordingly, the ICC prosecutor has the power to initiate investigations proprio motu (12) under two main circumstances: (1) based on information about criminal activities within the ICC's jurisdiction, (13) or (2) based on a state report, in accordance with Article 14, that "a situation in which" a crime enumerated in Article 5 was committed. (14) Although the prosecutor had neither initiated an investigation on a particular country nor taken any positive movement resulting from any information that might have been received, the United States invoked the deferral provision under Article 16 of the ICC Statute. (15) The U.S.'s preventive measures angered the international community. (16)

    Past statements made by U.S. representatives reveal that Resolution 1422 was an obvious step toward thwarting the ICC's powers. For example, Ambassador Scheffer stated:

    [I] regret to report that certain [U.S.] objectives were not achieved and therefore we could not support the draft that emerged.... [T]he Rome Treaty will become the single most effective brake on international and regional peacekeeping in the 21st century.... [The] fundamental flaws in the Rome Treaty mean that the United States will not sign the present text of the treaty, nor is there any prospect of signing the existing text in the future. (17) Ambassador Scheffer's remarks clearly signal that the United States opposed the Rome Treaty. Moreover, his statements reflect U.S. concerns regarding the role of its peacekeeping soldiers in current or future missions. Though the United States signed the Rome Treaty on December 31, 2000, its purpose, as expressed by former President Clinton, was "to be in a position to influence the evolution of the court." (18) While participating and negotiating at the ICC Preparatory Commission's Sessions, the United States aimed to insulate itself from the effects of the Rome Treaty. (19) In fact, the U.S. delegation "pushed for Elements of Crimes that narrowed the scope of the ICC Statute, and it lobbied in vain for a provision that would place U.S. nationals out of the reach of the court." (20)

    Though some of the U.S.'s concerns have been assuaged, some commentators argue that "the most significant ones were not." (21) Arguably, the ICC's jurisdictional regime did not adequately protect U.S. troops if the United States were to become a party to the Rome Treaty. (22) The ICC claims jurisdiction over non-party nationals as well. (23)

    Including a crime of aggression in the Rome Treaty's final text both surprised and disappointed the United States because some of the delegates desired to define the crime without requiring a consistent Council determination. (24) The United States felt that proponents of the ICC had an inherent goal to restrain U.S. forces. (25) When unable to influence U.S. foreign policy directly, an alternative method was to indirectly impact policy by targeting the policymakers themselves. (26) "An overzealous prosecutor who disagrees with U.S. policies could bring U.S. military personnel before the court." (27) Concerns about the overarching powers of the ICC (28) induced the United States to act in two ways: (1) withdraw its signature from the Rome Treaty, and (2) adopt Resolution 1422.

  3. ARTICLE 16

    1. Drafting History

      Article 16 may be considered one of the most dangerous and sensitive provisions in the ICC Statute. The Article governs situations regarding deferrals by the Council, and it is deemed to negatively frustrate the ICC's powers. (29) Article 16 also deters the establishment of an independent and impartial jurisdictional mechanism. (30) Nevertheless, the drafting history of Article 16 demonstrates that some of its drafters intended to reduce the Council's powers through the provision itself. Thus, Article 16 is a product of many compromises and is better than the initial International Law Commission's (ILC) proposal where the ICC was slated to be dependant upon the Council and subordinate to its action.

      Article 23(3) of the 1994 ILC Draft states in part: "No prosecution may be commenced under this Statute arising from a situation which is being dealt with by the Security Council as a threat to or a breach of the peace or an act of aggression under Chapter VII of the Charter, unless the Security Council otherwise decides." (31) Article 23(3) provides that a prosecution arising from a situation "being dealt with" by the Security...

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