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June 10, 2004

One Down, US Seeks Second UN Resolution

by Thalif Deen

UNITED NATIONS, June 9 (IPS) - After securing a unanimous U.N. Security Council resolution supposedly granting "full sovereignty" to Iraqis, the United States is shifting its focus to winning a second decision that would protect its troops from possible war crimes prosecution.

The original resolution granting immunity to U.S. peacekeepers was first adopted by the Security Council in July 2000, renewed last year, and remains valid until the end of June. The present resolution, which is a call for a second renewal, is due to come up for a vote before Jul. 1.

"With a pliant interim government in Baghdad, this should not be a problem in Iraq," says an Asian diplomat. "But Washington obviously wants international legitimacy from the Security Council – and it may well get it," he predicted.

China, a veto-wielding permanent member of the Security Council, has already expressed reservations. But, according to diplomatic sources here, the Chinese government may signal its displeasure by abstaining on the resolution, not vetoing it.

"The question is: will the other 14 members of the Security Council allow themselves to be intimidated once again if the United States insists on a renewal?" asked Hans Corell, who until recently was the U.N. Legal Counsel.

"Can they afford damaging their own reputation – and the Council's? And can the United States afford continuing in this way when they need all the support they can get from the United Nations in other matters?" Corell asked.

The 15-member Security Council has already come under fire for wilting under U.S. pressure when it unanimously adopted a resolution Wednesday endorsing the military occupation of Iraq.

Despite the Council's recognition of a "sovereign interim government" in Baghdad – described by observers as strongly pro-American – Washington refused to give the new government veto powers over U.S. military actions in Iraq, thereby undermining the concept of "real sovereignty," they add.

"For the Security Council to legitimize as sovereign an Iraqi government hand-picked by the United States, at the same time that Washington is sending more troops to occupy Iraq, proves that the United Nations cannot defend its own charter against American pressure," Roger Normand, director of the Centre for Economic and Social Rights, told IPS.

Normand, co-author of a new report titled "Beyond Torture: U.S. Violations of Occupation Law in Iraq," said the administration of President George W Bush is committing war crimes and other serious violations of international law in Iraq "as a matter of routine policy."

"It is a war crime either to target protected persons and property or to conduct indiscriminate attacks in civilian areas," he said.

Normand said the reported killing of more than 40 people at a wedding party in Iraq in May, and over 600 people in Fallujah in a days-long military assault earlier this year, one-half of them women and children, appear to be particular egregious examples of indiscriminate killings.

How then, he asked, can members of the Security Council even entertain a U.S. resolution seeking exemptions for its soldiers from war crimes prosecutions?

Beyond the now-infamous examples of torture, rape and murder at the Abu Ghraib prison in Baghdad, Washington has ignored international law governing military occupation and violated the full range of Iraqis' national and human rights, Normand added.

The U.S. attempt to seek exemptions from war crimes comes at a time when its soldiers in Iraq are accused of brutalizing and humiliating detainees in violation of Geneva Conventions that govern the treatment of prisoners of war, and include the prohibition of torture, rights to legal representation and family visits.

The military atrocities committed by U.S. soldiers warrant war crimes prosecutions, according to constitutional lawyers, but the United States cannot be hauled before the International Criminal Court (ICC) because it has refused to accede to the Rome Statute creating the ICC.

Exemption from war crimes prosecutions would also nullify the very basis of the ICC.

"For someone who is a warm supporter of the United Nations, the ICC and the United States, it is obvious what must be done in this particular case. It is time to stop this nonsense," Corell said.

On Monday, Human Rights Watch (HRW) appealed to Britain, a party to the ICC and a veto-holding permanent member of the Security Council, to withdraw its support for the controversial resolution.

"The United Kingdom played a positive role when the ICC was first created," said Steve Crawshaw, London director of HRW. "That makes it doubly depressing that Britain is now playing such a destructive role on Washington's behalf."

There are strong indications that opposition to the resolution is gaining momentum in the Security Council, he added.

Last year, three countries – France, Germany and Syria – abstained from voting on the resolution. "This year, the number will grow," predicts Crawshaw. "The United Kingdom should not be on the wrong side of this vote."

Francis Boyle, professor of international law at the University of Illinois, told IPS the Security Council has no authority to exempt the United States from the laws of war, including and especially the Geneva Conventions, since they constitute "jus cogens" – peremptory norms of international law that can never be derogated from.

"The adoption of such a second resolution by the Security Council would be "ultra vires" under U.N. Charter article 24 (2), which requires that the Security Council 'shall act in accordance with the purposes and principles of the United Nations'," he added.

Even if passed, said Boyle, such a resolution by the Security Council would be null and void around the world, except perhaps before the ICC.

And, he argued, it "would prove the complete and total bankruptcy of the Security Council when it comes to its primary responsibility for the maintenance of international peace and security under article 24 (1) of the U.N. Charter in the face of U.S. hegemonial imperialism."

While seeking the exemption from the ICC, Washington has signed bilateral immunity agreements with some 75 countries that have agreed not to prosecute U.S. soldiers on their soil. They range from Botswana and Chad to Sri Lanka and Solomon Islands.

But, according to the U.N. treaty section website, none of the bilaterals have been registered with the world body.

"It is a mandatory obligation imposed on all member states by the Charter that all treaties and agreements concluded by them be registered," Palitha Kohona, head of the U.N. Treaty Section told IPS.

"There are no exceptions to this requirement envisaged under the Charter. Article 102 seeks to ensure transparency with regard to all legally binding agreements concluded by member states. The fact that none has been registered so far seems to give rise to interesting legal implications," she added.

One speculation, according to a U.N. lawyer, is that the bilateral compacts are not being registered because the parties that signed with Washington do not consider them to be treaties. If that were the case, there would be doubts about their legally binding nature and their enforceability, he added.

"Of course a superpower could enforce bilateral obligations other than through legally available means. The tendency to resort to extra-legal means is something that the international community should be concerned with," he added.

(Inter Press Service)

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    Thalif Deen has been Inter Press Service's U.N. Bureau Chief since 1992. A
    former Information Officer at the U.N. Secretariat and a one-time member of
    the Sri Lanka delegation to the General Assembly sessions, he is currently
    editor of the Journal of the Group of 77, published in collaboration with
    IPS. A Fulbright-Hayes scholar, he holds a Master's degree in Journalism
    from Columbia University in New York.

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