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U.S. Drops ICC Immunity Push for Peace Keepers

U.S. Drops Effort to Secure ICC Immunity for Peacekeepers

Draft resolution withdrawn for Security Council unity, U.S. says

By Judy Aita
Washington File United Nations Correspondent

United Nations -- The United States June 23 withdrew its proposed Security Council resolution to extend immunity to peacekeepers from nations that do not accept the jurisdiction of the International Criminal Court (ICC) from prosecution by that court.

"The United States has decided not to proceed further with consideration and action on the draft at this time in order to avoid a prolonged and divisive debate," U.S. Ambassador James Cunningham said after a private council meeting.

The United States wanted to retain the compromise embodied in two previous resolutions on the issue, Cunningham said. "We are, after all, the largest contributor to global security and have special, well-known interests in protecting our forces and our officials. We have been heartened by progress in this connection over the past two years and will continue working in this vein."

"We believe that our draft and its predecessors fairly meet the concerns of all. Not all council members agree, however," the ambassador said.

The resolution would have recognized that states not party to the Rome Statute, which set up the ICC, would fulfill their judicial responsibilities in their own national jurisdictions. It would have declared that the ICC would not begin or proceed with any investigation or prosecution involving current or former U.N. peacekeeping personnel from states not party to the Rome Statute, thus giving immunity to U.S. soldiers from ICC prosecution for war crimes.

The resolution was an important priority for the United States in 2002 when it was first proposed by U.S. Ambassador John Negroponte. Negroponte stated that the whole spectrum of U.N. peacekeeping operations could be in jeopardy if the protection were not enacted. Among U.S. concerns has been the fear that U.S. peacekeepers or national leaders could be subjected to politically motivated prosecutions by the court.

When the resolution was renewed in 2003 by a 12 to 0 vote, it extended the immunity for 12 months. That extension is set to expire on June 30. In the text of the original resolution, council members had expressed their intention to renew the request each year "for as long as may be necessary."

However, with the photographs and publicity earlier this year showing abuse of prisoners in Iraq by U.S. soldiers, council members were reluctant to support the new draft resolution, which needed nine "yes" votes from the 15-nation council to pass. As many as seven council members had signaled their intention to abstain on the 2004 vote.

Ambassador Wange Guangya of China, whose country also is not a party to the Rome Statute, said, "I understand the U.S. is conducting investigations but, at the same time, this year, because of this wide coverage of the prison mistreatment, my government is under particular pressure not to give a blank check to the U.S. for the behavior of its forces."

Ambassador Heraldo Munoz of Chile said that the withdrawal of the resolution was "better than voting and appear[ing] divided after the consensus and the unity that we showed on Iraq" earlier in the month.

Secretary-General Kofi Annan has not supported the U.S. effort over the past two years, saying that the U.S. concerns were "highly improbable," and that the resolution was not in conformity with the Rome Statute's Article 16, which deals with immunity.

In mid-June, Annan told the council that the proposed resolution sends an "unfortunate signal any time, but particularly at this time."

After the U.S. action, the secretary-general said that "the decision by the United States not to pursue a resolution on this matter will help maintain the unity of the Security Council at a time when it faces difficult challenges."

Cunningham noted that U.S. problems with the ICC are well-known, encompassing jurisdiction, due process, multiple jeopardy, politicization and accountability.

"The ICC is intended to compliment the domestic justice systems of individual countries to ensure that war crimes do not fall between jurisdictional gaps. The United States has a well-functioning system for military justice that will insure accountability," he said.

"The draft resolution that we have been considering represented an important understanding reached with states that do not share our concerns. As with its predecessors -- Resolutions 1422 and 1487 -- it invokes the precise terms of the Rome Statute to request that if a case arises involving current or former officials or personnel from a contributing state not party to the Rome Statute over acts or omissions relating to a U.N. established or authorized operation, the ICC shall for a 12-month period not commence or proceed with investigation or prosecution," the ambassador said.

"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 U.N. authorized or established operations. We will also continue to negotiate bilateral agreements consistent with Article 98 of the Rome Statute to further protect U.S. persons from the exercise of jurisdiction by the ICC," Cunningham also said.

Intended as a court of last resort, the ICC, which is based in The Hague, came into being in July 2002 after more than 90 states ratified the 1998 treaty creating the court. On June 23, its prosecutor announced the court will undertake its first full-scale investigation into the allegations of grave crimes committed in the Democratic Republic of the Congo since July 2002.

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