UN rebuff to
the US: A Pyrrhic victory By Thalif
Deen
NEW YORK - Faced with the prospect of
certain defeat, the United States has abandoned its
proposal to seek Security Council exemption for US
soldiers from possible war crime charges in future
United Nations peacekeeping operations overseas.
The US wants air-tight guarantees against
prosecution of Americans. It fears that with the large
number of US soldiers abroad, they would be vulnerable
to frivolous or ideologically motivated prosecutions.
Unable to muster the necessary nine votes in the
15-member Security Council, Washington jettisoned the
draft resolution on Wednesday following widespread
opposition from an overwhelming majority of member
states.
"We were told that 11 out of 15
countries had threatened to abstain on the vote," Bill
Pace, convener of the Coalition for the International
Criminal Court (CICC), told IPS.
The potential
abstentions included two from veto-wielding permanent
members of the Security Council, namely France and
China. The other three permanent members are the US,
Russia and Britain.
"My government is under
particular pressure not to give a blank check to the
United States for the behavior of its [military]
forces," Chinese ambassador Wang Guangya told reporters.
Besides its own vote, the US was assured of only
two other positive votes in the council: Russia and also
Britain, which co-sponsored the resolution calling for
the exemption. The fourth potential vote for the US was
not identified.
US ambassador James Cunningham
told reporters that "the United States has decided not
to proceed further with consideration and action on the
draft [resolution] at this time in order to avoid a
prolonged and divisive debate".
"The world
community has sent an unequivocal message that it will
not stand for continued efforts to undermine the
International Criminal Court," Irene Khan, secretary
general of Amnesty International, said Wednesday.
"This is a victory for international justice and
peace, and a strong show of support for the
International Criminal Court," Pace said. "We appreciate
that the United States has avoided forcing a
confrontation on this issue, which would have divided
the Security Council, and has taken heed of the recent
comments by the UN Secretary General [Kofi Annan]," he
added.
Annan told reporters last week that he
had "quite strongly" spoken against the exemption, "and
I think it would be unfortunate for one to press for
such an exemption, given the prisoner abuse in Iraq".
"I think in this circumstance it would be unwise
to press for an exemption, and it would be even more
unwise on the part of the Security Council to grant it.
It would discredit the council and the United Nations
that stands for rule of law and the primacy of rule of
law," he added.
The US attempt to seek exemption
from war crimes prosecutions came at a time when its
soldiers in Iraq were being accused of brutalizing and
humiliating detainees in violation of the Geneva
Conventions that govern the treatment of prisoners of
war, including the prohibition of torture, rights to
legal representation and family visits.
The
atrocities committed by US soldiers warrant war crimes
prosecutions, according to constitutional lawyers, but
the US cannot be brought before the International
Criminal Court (ICC) because it has refused to accede to
the Rome Statute that created the court.
After
July 1, when a new US-installed interim government takes
power in Iraq, all coalition troops will be absorbed
into a new multinational force created by the Security
Council last month. The new force, however, will be
commanded by a US military officer.
The original
resolution granting immunity to US peacekeepers was
first adopted by the Security Council in July 2000 with
a 15-0 vote. It was renewed last year and remains valid
until June 30 this year. But at its renewal, three
countries, France, Germany and Syria, abstained on the
vote. The present aborted resolution was a call for a
second renewal of the exemption.
"A renewal of
the exemption at this time would have undermined the
authority of the Security Council, compromised the ICC,
and made a mockery of the rule of law and the
international judicial system," Naseer H Aruri,
chancellor professor (emeritus) of the University of
Massachusetts, told IPS.
"By withdrawing the
resolution," he said, "Washington has spared itself an
embarrassing defeat at the very time when it has been
making efforts to avoid contention that would exacerbate
the erosion of its already deteriorating position in
Iraq at a time when President George W Bush can
ill-afford further challenges."
As for the
practical issue of the fate of US soldiers, the
likelihood of their prosecution in an international
court would be near zero "given that the United States
has not ratified the Rome Statute, plus the fact that
the ICC can only accept cases when a nation is unable or
unwilling to prosecute, either for judicial or political
reasons," said Aruri, author of Dishonest Broker: the
US Role in Israel and Palestine.
Any
exemption of US soldiers, he pointed out, would have
been "particularly disturbing after the atrocities
committed by US perpetrators in Abu Ghraib and other
Iraqi prisons, which outraged international public
opinion".
John Quigley, professor of
international law at Ohio State University, told IPS
that US officials are potentially liable before the ICC.
Normally, the ICC has jurisdiction only if one of two
states is a party to the ICC statute (1) The state in
whose territory the act is committed and (2) The state
of which the alleged perpetrator is a national.
"Neither Iraq nor the United States is a party,"
Quigley said. "However, according to the ICC statute,
with regard to a particular offense, it is open to the
state in whose territory the act was committed, or the
state of nationality of the alleged perpetrator, to file
with the ICC a declaration that it does not object to
the ICC taking the case," he said.
Quigley also
pointed out that if such a declaration were filed, the
ICC could take the case. "As for acts by US officials in
Iraq, it is unlikely the United States would file such a
declaration. It is not inconceivable, however, that such
a declaration would be filed by the new interim
government of Iraq, or by whatever government follows it
in Iraq."
As the state in whose territory the
acts occurred, he said, Iraq could authorize the ICC to
proceed.
A total of 94 countries have ratified
the treaty, including all European Union members except
the Czech Republic. Other strong supporters are Canada,
Brazil, Jordan, and South Africa. Some 139 countries
have signed the treaty's statutes, drawn up in 1998 in
Rome.
