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June 23, 2004

US Abandons War Crimes Exemption

by Thalif Deen

UNITED NATIONS – Faced with the prospect of a humiliating defeat, the United States abandoned its proposal to seek Security Council exemption for U.S. soldiers from possible war crime charges in future UN peacekeeping operations overseas.

Unable to muster the necessary nine votes in the 15-member Security Council, Washington jettisoned the draft resolution 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, convenor 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 United States, 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 United States 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 United States was not identified.

U.S. 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 U.S. 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 U.S. soldiers warrant war crimes prosecutions, according to constitutional lawyers, but the United States 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 U.S.-installed interim government takes power in Iraq, all coalition troops will be absorbed into a new multinational force endorsed by the Security Council last month.

The new force, however, will be commanded by a U.S. military officer.

The original resolution granting immunity to U.S. peacekeepers was first adopted by the Security Council in July 2000 with a 15-nil 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 (and) candidate George W. Bush can ill-afford further challenges."

As for the practical issue of the fate of U.S. 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 U.S. Role in Israel and Palestine.

Any exemption of U.S. soldiers, he pointed out, would have been "particularly disturbing after the atrocities committed by U.S. 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 U.S. 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, or (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 U.S. 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.

(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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