After three weeks of intense negotiations, the 15 members of the United Nations Security Council unanimously passed a resolution granting a 12-month grace period in which American peacekeepers would be exempt from prosecution by the International Criminal Court (ICC). The vote was prompted by a US veto of a resolution three weeks ago that would have extended the mandate of the peacekeeping mission in Bosnia.

US representatives seemed satisfied with the resolution, but offered a stern warning to their closest allies that "no nation should underestimate our commitment to protect our citizens." Other nations also seemed pleased, or at least relieved that the negotiations had been successful, but there were some, such as Canada and Mexico, that were openly critical of the outcome.

Under the compromise resolution, the ICC is barred for twelve months from investigating or prosecuting anyone serving with a UN operation, for acts relating to the operation, if that person is from a country that has not ratified the court’s statute. The resolution invokes Article 16 of the statute, which allows the Security Council to suspend any investigation or prosecution for a year, if it deems it necessary under Chapter VII for the maintenance of international peace and security.

The Security Council resolution also "expresses the intention to renew" its request of the ICC at the end of the 12-month period for further 12-month periods "for as long as may be necessary." Sir Jeremy Greenstock, the British Ambassador and presiding president of the Security Council, pointed out that the resolution contained "no mention of blanket immunity. What is being provided is a ‘time out’."

Immediately after the passing of the resolution, the mandate for the United Nations Mission in Bosnia-Herzegovina (UNMIBH), a police-training mission, was extended.

Greenstock was broadly praised for his role in brokering the compromise, which he called "a significant achievement." The unanimous vote was reached only after a coalition of seven nations, led by France, refused to sign an earlier draft, demanding further changes to the text even after the U.S. had agreed to a 12-month exemption period. French diplomat Jean-David Levitte said, "For us, what was paramount was the authority of the newborn International Criminal Court, and it seems to us that the result which we just adopted is absolutely in line with the Statute of Rome."

Indeed, Reuters reported that according to diplomats, the success in winning over the holdouts was due to the US’s willingness to drop its demands for blanket immunity and instead move toward the actual provisions of the ICC treaty.

For instance, any case involving US personnel that arises during the next year would still be subject to investigation or prosecution later if the resolution is not renewed.

While some diplomats like Greenstock were able to place a positive spin on the Council’s vote, noting that "two very important institutions" – UN peacekeeping and the ICC - had been preserved, other representatives where unable to hide their disappointment and even outrage.

The United States’ two neighbors were the most vocal. Canadian Ambassador Paul Heinbecker chastised the Council, claiming, "Today is a sad day for the United Nations." Heinbecker and others are concerned with the possible precedent set by the vote for the Security Council to manipulate treaties (specifically the ICC) signed between countries outside of the United Nations. Heinbecker said, "We don’t think it is in the mandate of the Security Council to interpret treaties that are negotiated somewhere else."

According to this argument, the resolution distorts the meaning of Article 16 of the ICC Statute. That clause, it is claimed, was only intended to be invoked in specific cases – not to secure a general exemption from prosecution in advance for an entire class of persons.

The Washington Post reported that Mexico’s representative, Adolfo Aguilar Zinser, stormed out of the Council chamber, leaving his deputy to vote in his place. "The general opinion of the international community," Zinser said before the vote, "is that this is wrong."

Related chapters from Crimes of War: What the Public Should Know:

Humanitarian Intervention
Jurisdiction, Universal
United Nations and the Geneva Conventions

Related Links

United Nations Security Council Resolution 1422 (2002) (PDF file)

United Nations Website for the Rome Statute of the International Criminal Court

NGO Coalition for the International Criminal Court

United Nations Peacekeeping Operations

U.S. and other Peacekeeping Forces Exposure to Jurisdiction of the ICC and other tribunals (PDF file)

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