4568th Meeting* (AM & PM)
BOSNIA MISSION MANDATE IN QUESTION, AS SECURITY COUNCIL DEBATES
LEGAL EXPOSURE OF UN PEACEKEEPERS
Member States Express Concern about Future of United Nations Peacekeeping
During a public meeting in the Security Council today, 39 speakers debated the legal exposure of United Nations peacekeepers under the International Criminal Court (ICC) as that issue continued to hinder a mandate extension for the United Nations Mission in Bosnia and Herzegovina (UNMIBH).
Most speakers, voicing concern about the future of the Mission in Bosnia and Herzegovina, as well as United Nations peacekeeping operations in other areas, defended the ICC, saying that the Statute under which the Court was established contained sufficient safeguards against unwarranted and politically motivated prosecutions.
UNMIBH's mandate -– the first to come before the Council since the 1 July entry into force of the Rome Statute which established the ICC -- was originally due to expire on 21 June. But the Council, by adopting resolution 1421 on 3 July, extended it until 15 July. That action followed a negative vote by the United States last Sunday, 30 June, on a resolution that would have renewed the mandate of UNMIBH and authorized the continuation of the multinational stabilization force (SFOR) in Bosnia and Herzegovina. Immediately following the rejection of that draft, the Council adopted a technical text, extending UNMIBH for three days.
Today's meeting followed a series of recent votes in the Council on the question of whether or not to extend UNMIBH's mandate, originally due to expire on 21 June. The United States, a permanent Council member, has linked its participation in the Mission with its concerns about the risk of "politicized prosecutions" of its peacekeepers by the Court, whose jurisdiction the United States Government does not accept.
Canada's representative, and Chairman of the ICC Preparatory Commission, said he was deeply worried about the discussions concerning sweeping exemptions for peacekeepers for the most serious crimes known to humanity. The concerns of the United States could be addressed in ways that neither compromised international law nor the Court, nor placed the Council in the untenable position
* The 4567th meeting was closed.
of permitting possible impunity for genocide, crimes against humanity and war crimes. For example, the United States could decline to participate in future United Nations or coalition missions, or evolve bilateral agreements with receiving States, he suggested.
The representative of the United States said that his country's record of participation in peacekeeping missions, including the one in Bosnia and Herzegovina, made it clear that his delegation’s veto of the UNMIBH resolution reflected not a rejection of peacekeeping in that country, but rather a sense of frustration at its inability to convince the Council to take seriously the concerns of the United States about the legal exposure of its peacekeepers under the Rome Statute. Peacekeepers from States that were not party to the Rome Statute should not face unnecessary legal jeopardy, in addition to the dangers of deployment, he stressed.
Speaking on behalf of the European Union, Denmark's representative said that while it was understandable that the United States was seeking protection from politically motivated prosecutions, ample safeguards had been built into the Rome Statute. Furthermore, the principle of complementarity placed the primary responsibility for prosecution in national hands, with the ICC stepping in only when a State was unable or unwilling to carry out an investigation or prosecution.
France's representative asserted that the Rome Statute had given the United States much more meaningful safeguards than those provided by the International Criminal Tribunal for the Former Yugoslavia, which had never elicited the slightest concern in Washington. If the Council could not decide to extend the mandate of UNMIBH, France would give full support to replacing the Mission with the European Union Police Mission. France was duty-bound to think first of the people of Bosnia and Herzegovina who were slowly emerging from the tragedy of war.
Speaking in his national capacity, Council President Jeremy Greenstock (United Kingdom) said the commonly held view had been that Council members and Member States should work for, and be prepared to support, a responsible solution, which would encourage the ICC to fulfil its functions while also permitting the continuation of equally vital United Nations peacekeeping operations. He expressed regret at the uncertainty hanging over the future of the UNMIBH mandate.
The representative of Bosnia and Herzegovina said the Mission’s presence in its full capacity for the next six months would enable it to complete its core mandate and enable the European Union to take over the next phase. For any country concerned about the possible extradition of their nationals, his Government was ready to consider modalities for transfer, surrender or extraditions of any such nationals suspected of committing crimes under the Court’s jurisdiction.
Asserting that there were still political forces in the Balkan region who would like to see the peace process fail, the representative of the Federal Republic of Yugoslavia said those forces may have been defeated, but they had not been politically buried. They would certainly try to take advantage of the withdrawal of the United Nations from the region and the failure of the ICC to stand on its own feet, with serious consequences.
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Other speakers today were the representatives of New Zealand, South Africa, Bulgaria, India, Costa Rica (on behalf of the Rio Group), Iran, Jordan, China, Russian Federation, Ireland, Mongolia, Liechtenstein, Brazil, Singapore, Mauritius, Mexico, Norway, Thailand, Venezuela, Fiji, Ukraine, Guinea, Colombia, Samoa, Malaysia, Germany, Syria, Cameroon, Sierra Leone, Argentina and Cuba. The Observer for Switzerland also spoke.
Beginning the meeting at 10:07 a.m., the meeting was suspended at 1:10 p.m. It resumed at 3:38 p.m. and adjourned at 5:11 p.m.
The Security Council met this morning to consider the situation in Bosnia and Herzegovina. Before it was a letter dated 3 July from the Permanent Representative of Canada to the Council President, in which he requests an open meeting before the Council takes action on the question of extending the United Nations Mission in Bosnia and Herzegovina (UNMIBH).
With its far-reaching implications for the international system, for the Council to decide on the matter after a debate held behind closed doors would be inconsistent with the principles underlying the Council's method of work in recent years, the letter says.
At stake was not just the extension of a mission that would end in six months, it continues, but rather the issue was a potentially irreversible decision negatively affecting the integrity of the Rome Statute of the International Criminal Court (ICC), the integrity of treaty negotiations more generally, the credibility of the Council, the viability of international law with respect to the investigation and prosecution of grievous crimes, and the established responsibilities of States under international law to act on such crimes.
For additional background on recent Council action on the subject, see Press Releases SC/7430, 7437, 7438 and 7441.
PAUL HEINBECKER (Canada) said he was deeply worried about discussions under way in the Security Council concerning sweeping exemptions for peacekeepers for the most serious crimes known to humanity. The issue was larger than the International Criminal Court; fundamental principles of international law were in question. The Council had not been empowered to rewrite treaties, yet the resolutions circulating contained elements that exceeded the Council’s mandate. Their passage would undermine the Council’s credibility.
Stressing that the issue was not a choice between peacekeeping and the ICC, he said options existed to resolve that issue, which would provide for the continuation of United Nations peacekeeping and preserve the integrity of the international legal system and the Rome Statute. While the United States had clearly voiced its concerns about the ICC, numerous safeguards were written into its Statute, including extensive United States input in devising checks and balances, precisely in order to preclude politically motivated prosecutions.
Further, he said, the crimes were meticulously defined in a manner acceptable to the United States negotiators, and to all States, with thresholds that excluded the random and isolated acts that a peacekeeper might conceivably commit. In addition, the Court was obliged to defer genuine national legal proceedings. While Canada respected the sovereign decision of the United States not to ratify the Rome Statute, and the fact that the United States had no obligations to the Court, at stake were entirely different issues that raised questions about whether all people were equal and accountable before the law.
He said that peacekeeping and peace-building were critical to the maintenance of international peace and security and to safeguarding countless lives. The current debate had been mischaracterized as a choice between peacekeeping and the ICC. In fact, the stakes were actually different and even higher. The negotiating history made clear that recourse to article 16 was on a case-by-case basis only, where a particular situation -– for example, the dynamic of a peace negotiation –- would warrant a 12-month deferral. The Council should not propose to alter that fundamental provision. Passage of the proposed resolutions currently circulating would send an unacceptable message that some people –- peacekeepers -– were above the law.
Outlining options for the Council, he said they included doing nothing since the ICC would have no jurisdiction over any United States forces on peacekeeping missions for some time. On the other hand, the United States could decline to participate in future United Nations missions. For United Nations or coalition missions, the United States could negotiate appropriate bilateral agreements with receiving States. Overall, the concerns expressed by the United States could be addressed in ways that did not compromise the Court or international law, or place the Security Council in the untenable position of permitting the possibility of impunity for genocide, crimes against humanity and war crimes.
DON MACKAY (New Zealand) said the issue before the Council had implications for all Member States, not only those that were party to the Rome Statute. It also had implications for peacekeeping, fundamental issues of international law, the international treaty-making process, and the role of the Council itself.
He said the issue before the Council could only arise out of a most unlikely series of events -– where personnel on peacekeeping duties were alleged to have committed war crimes or crimes against humanity, but where the authorities of their own respective States were unwilling or unable to investigate those allegations. The possibility of such a situation could not, in any event, be said to constitute a threat to international peace and security, requiring a Council decision.
New Zealand did not see that question as a conflict between the ICC and peacekeeping, he said. Both were striving towards a common goal and neither should be hostage to the other. There was no justification or need for the exemption of peacekeepers from the Court and to provide that would seem to enshrine an unconscionable double standard, placing peacekeepers above the law. To attempt to provide the kind of immunity currently under consideration by the Council –- by altering article 16 of the Statute -- presented even greater difficulties. The article was intended for use on a case-by-case basis, by reference to particular situations to enable the Council to advance peace where there was a temporary conflict between the resolution of armed conflict and the prosecution of offences. It could also be used as a last resort against frivolous or political prosecution. Neither of those cases arose here, he pointed out.
DUMISANI S. KUMALO (South Africa) said the Council was being asked to question the authority of an international body, while there was no room within its mandate either to reinterpret or amend treaties that had been negotiated and agreed to by the rest of the United Nations membership. An action by one permanent member had cast a shadow on the operation of the ICC and even the application of international law. South Africa, therefore, supported the Secretary-General’s concerns voiced in his letter to the Council President on
3 July about the implications of such an action.
He said the United Nations presence in the Balkans had, until now, sent a powerful message that the international community was firmly committed to assisting the peoples of south-east Europe in fully recovering from the devastating effects of war. Those achievements were now threatened by one permanent member of the Council because of its unfounded fears concerning the jurisdiction of the ICC. That action affected peace and stability in the entire Balkans and had implications for all United Nations peacekeeping operations throughout the world. As most conflicts were in Africa, the adoption of the resolution being circulated would set back peace on the continent for a very long time.
The fact that any permanent member could unilaterally decide to exercise its privilege to defeat the efforts of the other 14 members to extend the mandate of an agreed mission held disturbing implications for the rest of the Member States, and the world in general, he said. In July alone, the mandates of the United Nations missions in Western Sahara (MINURSO), Lebanon (UNIFIL), Georgia (UNOMIG) and Prevlaka (UNMOP) were due for renewal. The possibility that those missions might suffer the same fate as UNMIBH was worrisome. He urged the Council to stand firm and protect the Mission in Bosnia, while reinforcing the norm established by the ICC. The Council could not fail the people of Bosnia and Herzegovina as doing so would fail people everywhere.
ELLEN MARGRETHE LØJ (Denmark), speaking on behalf of the European Union and associated States, said the recent entry into force of the ICC Statute had been a major leap forward in the development of international law. The Court was not just a judicial institution designed to investigate and prosecute acts of genocide, crimes against humanity and war crimes, but also a strong political statement in the fight against impunity for the most serious crimes, which were of most concern for the entire international community.
She said the Court was an essential contribution to the preservation of peace and the strengthening of international security. While it was understandable that the United States was seeking protection from politically motivated prosecutions, those concerns had been met and sufficient safeguards against such accusations had been built into the Statute.
Furthermore, she continued, the Statute’s principle of complementarity placed the primary responsibility for investigation and prosecution with domestic jurisdictions. The ICC could only step in when a State was unwilling or genuinely unable to carry out an investigation or prosecution. In such cases, the Court would prove to be a fair, competent and effective legal institution. The ICC did not infringe on the rights of third States -- it was based on the territorial and national jurisdiction of the States parties, and such jurisdiction was asserted by all States.
She said various solutions had been offered to address the concerns expressed. One invoked the procedure laid down in article 16 of the Rome Statute, which states that investigation or prosecution would proceed under the Statute for 12 months after a request by the Security Council to that effect. That article should be invoked in conformity with the Statue, she added.
The European Union fully agreed with the Secretary-General's letter to the United States Secretary of State on the matter, referring specifically to the Secretary-General’s belief that the issue being raised was not only highly improbable, but was subsequently putting the whole of United Nations peacekeeping at risk. Stressing great importance of the continued and major contributions of the United States to peacekeeping missions around the world, she expressed agreement with the United States that the people of Bosnia and Herzegovina did not deserve to pay the price of the present unfortunate situation.
At the same time, European Union's adherence to the Rome Statute in no way diminished its commitment and responsibility to peacekeepers, she said. It was not an expression of distrust, but rather complete trust. While the Union was gratified with recent assurances that the United States’ commitment to the people of Bosnia and peacekeeping missions remained undiminished, the risk of a setback was real. The Secretary-General's latest report had stressed the "systemic weakness" in the rule of law in Bosnia and Herzegovina, which would require continued international attention.
An abrupt end to the United Nations International Police Task Force (IPTF) in the Federation would create a vacuum that could have a negative impact on the general elections scheduled for October, she said. As the first such elections to be organized by national authorities since the war, it was up to the international community to support that endeavour.
It had been the common wish of the Security Council and the European Union to secure an orderly transition between the IPTF and the European Union Police Mission, which planned to take over on 1 January 2003. Uninterrupted police reform was crucial to continued implementation of the Dayton Peace Accord and an abrupt end to United Nations police operations would make those efforts difficult.
JOHN D. NEGROPONTE (United States) said his country’s record in the effort to strengthen international justice and accountability had demonstrated its belief in justice and the rule of law, and in accountability for war crimes, crimes against humanity, and genocide. The United States accepted the responsibility to investigate and prosecute its own citizens for such offences should they occur. It did not shirk from public and private protest, domestically or elsewhere. Its commitment to peace and security in Bosnia and around the world was also not in question. The United States contributed nearly 10,000 of its citizens to United Nations-established or –authorized peacekeeping operations, in addition to the thousands of its troops deployed in the Republic of Korea with United Nations authorization.
In Bosnia, he said, the United States had more than 2,000 troops and nearly 50 civilian police. The senior United Nations official was an American citizen, on loan from the United States. With such a record, it was clear that the veto of the UNMIBH resolution had not reflected a rejection of peacekeeping in Bosnia, but rather frustration at the inability to convince the Council to take seriously the concerns of the United States about the legal exposure of its peacekeepers under the Rome Statute. Peacekeepers from States that were not party to the Statute should not face, in addition to the dangers of deployment, additional, unnecessary legal jeopardy.
Noting suggestions that the United States was taking too alarmist a view of the dangers posed by the ICC to troop contributors, he argued that supporters of the ICC took too alarmist a view of the pragmatic solution that the United States was proposing. In his proposals to the Council, he had sought to work within the provisions of the Rome Statute, and his latest proposal used article 16 of the Statute to address concerns about its implications for nations that were not party to it. Article 16 contemplated that the Council might make a renewable request to the ICC not to commence or proceed with investigations or prosecutions for a
12-month period on the basis of a Chapter VII resolution. That was consistent with both the terms of article 16 and with the primary responsibility of the Council to maintain international peace and security.
JEAN-DAVID LEVITTE (France) said that the Rome Statute had given the United States much more meaningful safeguards than the safeguards of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which had never elicited the slightest concern in Washington. The ICTY Statute allowed it to compel national courts to develop a case and turn it over to the ICTY, whereas the Rome Statute provided that the Court could only prosecute persons if competent national courts could not. Further, indictments drawn up by ICTY prosecutors were confirmed by a single judge only, but ICC prosecutor could only undertake a prosecution within a three trial chamber consisting of three judges. The Security Council, on the basis of article 16 of the Rome Statute, might decide to suspend proceedings initiated by the ICC for a renewable period of one year, which was not part of the ICTY Statute.
Those and other differences proved that the Rome Statute covered the concerns of the United States much better than the ICTY Statute, he said. Yet, throughout the six years of its existence, it had never elicited the slightest criticism in Washington. The criteria and modalities for the election of judges was scarcely different from those for judges elected to the ICTY, so there was no reason to fear that the work of the ICC judges would be any less impeccable. The ICC marked a major step in building an international order based on law. Its targets were criminal leaders who had traumatized their people. As the Secretary-General had said, no peacekeeper had ever committed a crime falling within the jurisdiction of the ICC.
The United States, nevertheless, wanted to ensure that none of its nationals serving abroad would be brought before the Court, he went on. The principle of complementarity and the combined recourse to article 68 of the Rome State provided an “almost total guarantee” to the United States. France had made a specific proposal regarding article 16, and was willing to discuss it within the limits authorized by the law, but it could not accept an amendment by means of a Security Council resolution to any provision of the treaty. If the United States managed to rally support in the Council, France would question such a decision, he said, adding that any conflict of norms was certainly not in the Council's interest.
If Washington confirmed its veto of UNMIBH by the end of the week and subsequently vetoed every mission extension, who would take over the responsibility for those forces and complete the restoration of peace in conflict areas such as Sierra Leone, East Timor and southern Lebanon? he asked. Those and other missions were irreplaceable and, for so many people, represented the only hope for peace and progress. He said that in order to address the United States’ concerns, a paragraph could be added to the text proposing to extend UNMIBH’s mandate, stressing the primacy of ICTY’s jurisdiction and the fact that it overrode the jurisdiction of the ICC. If the United States did not accept that, France would give full support to the United Kingdom draft and replace the United Nations Mission with the European police mission. France was duty-bound to think first of the people of Bosnia, slowly emerging from the tragedy of war, he said.
STEFAN TAFROV (Bulgaria), Coordinator of the Drafting Group, noted that his country was the sole representative on the Security Council, not only of Eastern Europe, but also of the Balkans. It was vital to Bulgaria that the still fragile stability in Bosnia and Herzegovina be preserved. In order to contribute to that, Bulgaria had presented a draft resolution to the Council, which aimed at developing a clear vision of the future of Bosnia and Herzegovina. Assisting that country to move towards peace and democracy was a responsibility borne by the entire international community, he emphasized.
Given the complex situation that had arisen with respect to the ICC, he urged the Council to take into account the political consequences of its decision, not only for Bosnia and Herzegovina, but for all peacekeeping operations. Reaffirming Bulgaria’s position that peacekeeping operations were vital for the United Nations and the Council in implementing the mandate stemming from
Chapter VII of the Charter, he said that mandate should not be linked to the weakening of any international treaty. A solution could be found through compromise and on the basis of flexibility on all sides.
VIJAY NAMBIAR (India) said that exposing troop contributors to harassment now would likely put those forces on the defensive and eventually affect the preparedness of troop providers to contribute to peacekeeping. Those countries had contributed immensely over the past century to international peace and security, and there had never been an instance of a peacekeeper committing a grievous or heinous crime. It was extremely unlikely that they would ever appear before the ICC.
He said the Council should ensure that troops were drawn from countries with democratic traditions and transparent institutions. It was difficult to accept an outside authority sitting in judgement of one’s country’s troops. However, he understood the dilemma of the countries that had signed the Rome Statute and recognized that they were free to submit their troops to its jurisdiction.
India was not a signatory to the Rome Statute for well-known reasons, he said. It recognized that the Council decision on the current issue about the immunity of peacekeepers would have wide ramifications, and the Council should give consideration to major troop contributors before taking that decision. However, it should not allow itself to be undermined by its own decisions, he cautioned.
MARIA ELENA CHASSOUL (Costa Rica), speaking on behalf of the Rio Group, said the Group had hailed the creation of the ICC as an effective, independent and impartial instrument with jurisdiction to try crimes that were an assault on the human dignity of individuals and was concerned about the consideration within the Council to grant absolute immunity to peacekeeping personnel, contrary to the letter and spirit of the Rome Statute. That proposal was utterly unfounded as the Statute already provided the necessary safeguards to prevent inappropriate use of the Court.
She said the Rio Group could not accept any erosion of the Rome Statute. It was vital to uphold its integrity; any proposed amendment must respect the norms and procedures established by international law, treaty law and the Statute itself. The Group was concerned about any initiative that sought to substantially modify the provisions of the Statute by means of a Security Council resolution. That would exceed the Council’s authority and undermine its credibility and legitimacy.
The Group was intensely concerned that the whole peacekeeping system might be jeopardized as a result of an “erroneous” interpretation of the Statute’s provisions, she went on. It was vital to preserve and build on the achievements of UNMIBH. The Rio Group urged the Council to find a solution to the impasse, that would both respect the letter and spirit of the Rome Statute and ensure its effectiveness and legitimacy.
MOHAMMAD H. FADAIFARD (Iran), noting that UNMIBH had been a stabilizing factor for Bosnia and Herzegovina and the whole Balkan region, said it had played a very important role in implementing the Dayton Peace Agreement and helping the country train and equip a professional police force. With the peace process still fragile, however, it was important for the Mission to continue its work and wind down in an orderly manner and at an appropriate time. Premature termination of UNMIBH would leave its programmes uncompleted and jeopardize previous achievements.
Such a prospect might also hurt ongoing efforts in the wider region, he said. Unfortunately, disagreement about the ICC was not only casting a shadow on the Mission, but also jeopardizing other peacekeeping missions around the world. The potential implications of the current impasse for United Nations peacekeeping should be taken into account.
Expressing regret that a one-sided approach by one Council member was jeopardizing the future of United Nations peacekeeping, he said such an approach ran counter to the spirit and letter of the United Nations Charter. He had not seen the logic in recent attempts to disrupt the work of a successful Mission, which included, among other aspects, efforts to combat organized crime and terrorism.
Regarding the Rome Statute, he said the Council was not authorized to interpret or amend treaties concluded in accordance with the Law of Treaties -– a law that recognized the parties to a treaty to be competent to interpret or amend it. Work was under way in Iran for the Statute’s ratification, he added.
ZEID RA’AD ZEID AL-HUSSEIN (Jordan) said the only discussion the Security Council should be having a week after the ICC Statute had entered into force was on how best to assist the Court. To contemplate anything short of that would be offering comfort to the criminals of tomorrow. Should the Council consider again adopting a draft resolution on the ICC falling under Chapter VII, it would edge beyond its authority under the United Nations Charter.
The point of arguments put forward by the United States Ambassador had been taken, he continued. The United States enjoyed a uniqueness, a primacy in world affairs today, demonstrated in part by its significant contribution to global peacekeeping efforts, which left it vulnerable to the possibility of politically motivated charges levelled by different actors.
He said the existing safeguards in the Rome Statute were sufficient to reduce to an absolute minimum the likelihood that the Court would take up such dubious charges, and Jordan would strive, together with all States parties, to ensure that it discharged its duties fairly, effectively, and unencumbered by political considerations. However, Jordan opposed any action by the Council that would not only undermine the Court, but deliver a crippling blow to the manner in which the international community negotiated multilateral treaties in the future. Moreover, it was inconceivable that the Council could ponder putting at risk the lives of millions of people by placing existing peacekeeping operations in jeopardy because of differences of opinion over the ICC.
WANG YINGFAN (China) said the ICC was a pertinent international institution that held out the hope of ensuring that the perpetrators of serious international crimes were brought to justice. Achieving that goal would bring the world closer to global peace and security. Although China was not yet a State party to the ICC, it supported the establishment of an independent, impartial, and competent international criminal court that enjoyed universality. The Chinese Government had actively participated in elaborating the Rome Statute and would closely follow the Court’s operation.
The question of jurisdiction over peacekeepers had commanded everyone’s attention, he said. The ICC’s ultimate goal was to solve the problem of impunity regarding serious international crimes and to bring the perpetrators to justice. Complementarity was a very important principle of the ICC in that regard. It meant that if a country had itself brought a national to justice, then the ICC would not intervene.
Present discussions regarding the extension of UNMIBH’s mandate had gone far beyond its renewal, he said. The most urgent thing at present was to find a practical way out. That entailed respect for the ICC and fully accommodating the position of its States parties, while not violating the sovereign rights of those outside the Court. The Security Council was not very far from reaching a resolution to the current impasse. Hopefully, the parties concerned would demonstrate greater flexibility, as United Nations peacekeeping operations should not be negatively affected.
GENNADY GATILOV (Russian Federation) said that questions of legal status and additional safeguards in the context of the ICC were multifaceted and had no simple solution. The Council was discussing the unimpeded, timely conduct of peacekeeping operations, which had saved thousands of lives.
Expressing understanding of United Nations concerns about the current issue, as well as those of States defending the Rome Statute, he said a solution could hopefully be found that would neither imperil United Nations peacekeeping operations nor diminish the Rome Statute.
The Council must not damage a major area of the United Nations relating to peacekeeping, he emphasized. The Russian Federation would continue to try to find a mutually acceptable solution, along with all the other interested States.
RICHARD RYAN (Ireland) said that while he understood the concerns of the United States, he felt they were unfounded and could not agree to the mechanism proposed by that country to allay them. The Rome Statute already contained adequate safeguards against politically inspired investigations or prosecutions by the Court. Moreover, those safeguards covered military or diplomatic personnel from every country, including from non-parties to the Rome Statute. The Statute enshrined the principle of complementarity, which rightly accorded priority to national judicial processes. It also allowed for bilateral agreements, as well as for the deferral of an investigation or prosecution in response to a request by the Security Council.
He said the Council must respect, in spirit and letter, international treaties and the wider fabric of international law and cooperation. In that connection, Ireland was deeply disturbed by the possibility that the present exercise could adversely affect the credibility and prestige of the Council itself if not handled deftly.
Expressing great regret over the uncertainty surrounding UNMIBH and the multinational stabilization force (SFOR), he said it would be grave indeed if the current impasse in the Council affected a whole series of other operations as their mandates came up for renewal. There were several essentially free-standing, but now politically intertwined factors involved: the role and functioning of the Council; the primacy and integrity of international law; the future of United Nations’ peace operations; and the crucial role of the Organization in supporting them.
JARGALSAIKHANY ENKHSAIKHAN (Mongolia) said the Council and the ICC were expected to work together, rather than to the detriment of each other. No State should be placed in a situation where it was forced to breach its international obligations either under the Charter or the Statute of the Court. Both bodies should work together to strengthen international peace and security, the rule of law and international justice.
Mongolia had been interested in maintaining the integrity and effectiveness of the ICC since the first days of its existence, he said. It had faith in the Court’s integrity, since the Statute had adequate safeguards against possible abuse. By its activities, the Court would be able to dispel any lingering doubts as to its impartiality and effectiveness.
He underlined the vital importance of safeguarding the integrity of the Rome Statute, and thus of international law and treaty-making, the rule of law, as well as the integrity of the Council itself. It was hoped that the Council would be able to find a solution that would respect the spirit and letter of the Statute, and that would not undermine the effective functioning of either the Court or the Council.
CLAUDIA FRITSCHE (Liechtenstein) said today's discussion was not merely about the future of the International Criminal Court, but also the role and credibility of the Security Council. The Council’s mandate did not lack clarity; any transgression as a result of the ongoing debate would have disastrous consequences for the Court and perhaps even more devastating ones for the Council. For the United Nations membership to have to question the legality of one of its decisions would have a devastating impact on the Council's credibility and for the Organization as a whole.
She noted that one of the two approaches being contemplated by the Council would effectively amend article 16 of the Rome Statute. That would constitute an action outside the Council’s mandate and fundamentally affect the process of treaty-making as practised in the United Nations. The other approach -- a generic resolution addressing the role of the ICC with regard to peacekeeping, in general, rather than in conjunction with a specific operation -- could only be based on the untenable notion that the Court constituted a threat to international peace and security.
Neither approach was viable, either politically or legally, she stressed. Peacekeeping and international justice were complementary and it was disturbing, therefore, that some discussions presently under way treated them as mutually exclusive.
GELSON FONSECA (Brazil) said that while appreciating the difficult predicament the Security Council was facing, he felt it was based on a false dilemma. The maintenance of international peace and security and the repression of heinous crimes against humanity were not two conflicting objectives. On the contrary, peacekeeping operations and the ICC were two important pillars for realizing United Nations goals, and both instruments must work in a coherent and mutually reinforcing manner. That was precisely why the Rome Statute relied so deeply on a solid and well crafted relationship between the Council and the Court.
Brazil aligned itself with those who were firmly convinced that the Rome Statute provided all the necessary checks and balances against possible abuses and politically motivated misuse of ICC jurisdiction, he said. It was inconceivable that peacekeepers mandated by the United Nations could ever be associated with the kind of crimes that fell within the jurisdiction of the Court. That had never happened and was most unlikely. Should it occur, however, it was essential that the perpetrators be brought to justice to preserve the mandate and authority of the mission. Brazil could not accept -– even in theory -– the possibility that peacekeeping operations be regarded as a safe haven for the commission of crimes against humanity.
Appealing strongly to Council members not to rush into hasty decisions that may cause irreparable damage to peacekeeping, the rule of international law and the very credibility of the Council, he also discouraged proposals that ultimately sought to reinterpret the Rome Statute, especially with respect to article 16, whose provisions were applicable only on a case-by-case basis. The Council could not alter international agreements that had been duly negotiated and freely entered into by States parties, as it was not vested with treaty-making and treaty-reviewing powers.
JENÖ C.A. STAEHELIN, Observer for Switzerland, emphasized the need for peacekeeping operations, saying international peace and security depended upon them in a number of sensitive regions around the world. The exercise of international criminal jurisdiction was not in contradiction with the execution of such operations, and there were grounds, moreover, for preventing criminal cases from being brought on frivolous or political grounds. Safeguards could be given in that regard, but the right means must be chosen to attain them. Modifying a treaty was not a conceivable solution. That would be a serious development for the future of international law and the United Nations. The Council’s authority would also be directly affected.
He pointed out that the Rome Statute and the rules developed for its application embodied numerous safeguards aimed at allaying the concerns of certain States. The best way for a State to render one of its nationals immune to ICC jurisdiction was to exercise its own criminal jurisdiction over the individual. Only six peacekeeping operations might involve sensitive aspects in terms of the ICC, and seeking to find a solution through a general resolution applicable to all peacekeeping operations would create more problems than it would solve.
KISHORE MAHBUBANI (Singapore) said the fate of UNMIBH had become tangled up in extrajudicial processes for peacekeepers. The Security Council had been at an impasse over that issue rather than extending the Mission’s mandate. It had been proposed that article 16 of the Rome Statute be indefinitely and automatically renewed, and it was within the authority of the Council to do so. The question was whether it was desirable for the Council to take such action.
He said that while his country had not acceded to the ICC Statute, it was concerned that the Council did nothing to undermine the integrity of the multilateral framework. Singapore recognized the importance of removing obstacles to peacekeepers so that the Council could move effectively. The United Nations could only be as effective as its Members allowed it to be. It was a reality that the United States deployed disproportionate weight in the post-cold war world. It was vital to factor in the United States contribution to peacekeeping.
As the debate in the Council had unfolded, Singapore had been encouraged by a change of approach, he said. There had been an effort to temper the matter with prudence and to seek solutions by political compromise. The good work done by UNMIBH must not be unravelled and the security of people in the region must not be jeopardized. Article 16 was also the basis of proposals tabled by France and the United Kingdom. There was scope for consensus to be based around Article 16.
JAGDISH KOONJUL (Mauritius) said that UNMIBH had been playing a significant role in maintaining peace and security in the Balkans and had been critical in restoring law and order on the ground. Continued uncertainty about its operation would be counterproductive and might undermine the progress achieved so far. Its continued operation now depended on the concerns raised by one delegation with respect to the applicability of the Rome Statute to peacekeepers. That delegation had insisted that the Council adopt a resolution ensuring complete immunity from the ICC for its peacekeepers.
Mauritius had not shared that view, nor the notion that any peacekeeper would be involved in a crime falling under the purview of the ICC, he said. No peacekeeper had ever been the author of such a crime. Moreover, the status-of-forces agreements between host and troop-contributing countries provided for the repatriation and prosecution of any misbehaviour by a national of the sending country. Thus, he had not understood how the ICC could threaten any troop-contributing country and had strong reservations about granting blanket immunity to any individual or groups.
The Rome Statute had been elevated to almost universal acceptance with more than 139 signatories and 76 ratifiers within four years of its adoption, he noted. It would be inappropriate to undermine it. To the United States proposal that the Council use article 16 of the treaty to provide blanket immunity to its peacekeepers, he said the article should be invoked only on a case-by-case basis. Further, the concerns expressed by the United States delegation should be addressed in the tenth Preparatory Committee of the ICC.
ADOLFO AGUILAR ZINSER (Mexico) said there had been uncertainty lately about the ability of the United Nations to renew a mandate or dispatch new peacekeeping operations. Questions had been raised concerning the validity of international law, as well as universal commitment to the Rome Statute. As for UNMIBH, it was essential to renew that Mission’s mandate in order to give continuity and solidity to the international community’s effort to create peace in the Balkans. But it had not been possible to achieve a solution to the underlying problem raised by the United States -– that of granting peacekeepers immunity vis-à-vis the ICC.
Member States had collectively decided that the Council would act on behalf of all in maintaining international peace and security, he said. The legitimacy of its acts lay in their being in accordance with the Charter and with international law. The Council might be adversely affected if decisions ran counter to the international legal system. It was the proper body to deal with matters relating to peacekeeping, but not the proper forum for questions concerning the ICC or the independent exercise of its jurisdiction.
He said the States parties to the Statute were faced with a dangerous precedent, which would represent an amendment to the Rome Statute. Legal institutions such as the Law of Treaties would suffer damage if the Council set the negative precedent of using its resolutions to amend treaties. Relying on article 16 of the Statute to grant immunity to persons authorized by the Council was not acceptable to Mexico. Anyone who tried to interpret the Statute according to their own purposes undermined the fundamental principles and integrity of the Court. Suspension could not be granted concerning events that had not occurred, nor could such a suspension be unlimited.
OLE PETER KOLBY (Norway) said that recent experiences in various regions had demonstrated the decisive role played by peacekeeping and crisis-management operations in settling violent conflicts and in securing peace and stability. The United Nations, therefore, must be able to continue to play that crucial role in safeguarding international peace and stability. The situation facing UNMIBH could jeopardize the reform and reconstruction process. For a people ravaged by a brutal war, the international community’s common commitment must be reaffirmed. It was especially important that the IPTF be allowed to continue its operations during the critical months leading up to the general elections on 5 October.
He said the European Union had been preparing for some time for the implementation of the European Union Police Mission (EUPM) as a follow-on to the IPTF as of 1 January 2003. The Union had more recently signalled its willingness to prepare an interim arrangement in the event that the IPTF was prematurely withdrawn. While Norway highly commended the European Union’s response, that option was “second best”. The preferred option would be for UNMIBH to complete its mandate as planned, thereby allowing for stability in the upcoming election period and for an orderly transition from the IPTF to the EUPM.
Reaffirming Norway's full commitment to the new reality of international criminal justice, for which the ICC was a historic step forward, he said the Rome Statute contained "solid" safeguards against unwarranted or arbitrary prosecutions, and could only be activated when impunity had been demonstrated through lack of genuine national prosecution of mass atrocities. The ICC system was solidly founded on the primary jurisdiction of national courts. He would refer to the system of safeguards in the ICC Statute with respect to the concerns being raised about the exposure of United Nations peacekeepers to unwarranted prosecutions. Moreover, in the history of the United Nations, no peacekeeper or any other mission personnel had been anywhere near the kind of crimes that fell under the ICC's authority.
CHUCHAI KASEMSARN (Thailand) pointed out that UNMIBH’s operations had already been extended three times since 21 June 2002, which did not augur well for the effective functioning of the Mission or the maintenance of law and order in Bosnia and Herzegovina. Hopefully, the Council could arrive at an early agreement to renew the Mission’s mandate to 31 December 2002 so that it could complete its work.
He said Thailand shared the concern expressed by a majority of States that unexpected recent developments in the Council could have detrimental consequences on the credibility and effectiveness of the ICC. The Rome Statute was the result of several decades of multilateral efforts by the international community to end impunity for perpetrators of the most serious crimes and was, thus, one of the most vital milestones in the evolution of international law.
Expressing the fear that current developments in the Council would erode the sanctity of international law and multilateralism, he asked all States to safeguard the independence, as well as effective functioning, of the ICC, which was complementary to national jurisdictions. While recognizing and sympathizing with concerns about the ICC, Thailand hoped the Council would find a just solution fully respecting the letter and spirit of the Rome Statute.
ADRIANA PULIDO (Venezuela), associating herself with the Rio Group, said international criminal law was no longer a dream of international idealists, but a concrete reality whose existence attested to the resolve of States to bring the perpetrators of heinous crimes to justice. Venezuela had supported the creation of the ICC and had been one of the first Latin American countries to ratify the Rome Statute. By so doing, her country had sent a message to the international community concerning the great significance it attached to the ICC as an autonomous, universal, impartial and complementary mechanism to punish those responsible for the most abominable crimes.
She said that owing to the Court’s far-reaching importance in building a new international order founded on justice and peace, Venezuela’s confidence in the Court remained firm. At the same time, she expressed profound concern at the position taken by certain countries not to join in that endeavour. Universal participation must be the cornerstone of the ICC. Venezuela was also greatly concerned at the situation in the Security Council concerning the possibility that it might weaken the ICC Statute and modify its scope. By taking such a decision, which would be contrary to the spirit and objective of the Statute, the Council would be assuming "excessive jurisdiction" and disrupting the international legal order.
The meeting suspended at 1:10 p.m. When it resumed at 3:38 p.m., the representative of Fiji took the floor.
AMRAIYA NAIDU (Fiji) said his country saw both peacekeeping and the ICC as solid reinforcements to the United Nations Charter goal of maintaining international peace and security. It was inconceivable that one stood as a threat to the other. They must be encouraged to grow together, rather than undermine each other.
He expressed confidence that mischievous, malicious allegations would be screened by a majority decision of judges in the Court's pre-trial chambers, and in review by the appellate chamber. Those mechanisms safeguarded the integrity and impartiality of the Court against politically motivated claims.
Under Article 24 of the Charter, he said, the United Nations membership conferred on the Security Council the primary responsibility for maintaining international peace and security. However, those functions and powers did not include amending treaties, which would violate established principles of international treaty law. He cautioned that granting the concessions, as contained in draft resolutions, would set a dangerous precedent, with drastic consequences, and most certainly compromise the integrity of both the ICC and the Council.
MIRZA KUSLJUGIC (Bosnia and Herzegovina), expressing appreciation for the establishment of the ICTY to prosecute the most horrendous crimes committed on the territory of the former Yugoslavia, said his country had signed and ratified the ICC Statute, understanding full well the consequences of war crimes and the need for justice and the prevention of future atrocities. Now, concerns had arisen regarding a possible misuse of the ICC, involving peacekeepers of UNMIBH and other United Nations missions. With respect to Bosnia and Herzegovina, it was very difficult to conceive of a situation in the next six months that would bring the ICC Statute into play.
Pointing out that there were sufficient safeguards in the Statute, he said that for any country concerned about the possible extradition of its nationals participating in UNMIBH, his Government was prepared to consider, bearing in mind the Rome Statute, modalities for transfer, surrender or extraditions of their nationals suspected of committing crimes under the Statute’s jurisdiction, in order to reach an acceptable agreement. Some concerned countries already had bilateral extradition agreements in place, he noted.
UNMIBH’s presence in its full capacity for the next six months was essential for the completion of its core mandate and would enable the European Union to take over the next phase of that important task, he said. The Mission had invested tirelessly and with measurable results towards the country’s reconciliation and reconstruction, including the establishment of multi-ethnic police forces and a functional State Border Service. In addition, the current level of stability in Bosnia and Herzegovina gave hope and provided a framework for the steady development of democratic institutions, the rule of law and respect for human rights. Those efforts had recently been crowned by the country’s accession to the Council of Europe. In that context, the extension of UNMIBH’s mandate was important for further solidifying gains in security and ensuring an independent judiciary.
VALERY P. KUCHINSKY (Ukraine) expressed regret that the Council was divided over an issue that could undermine its credibility, call into question the legitimacy of its decisions and challenge the effectiveness of United Nations peacekeeping activities. That division would affect the future development of international law and influence United Nations peacekeeping. It should be resolved with the utmost care.
Saying his country understood the concerns of the United States and expressing the hope that they would be pragmatically addressed, he called upon Council members to make all possible effort to find a generally acceptable solution. Such a solution should neither weaken United Nations peacekeeping, nor harm the integrity of the Rome Statute nor create a precedent of interference by the Council with the sovereign rights of Member States in treaty-making. It should also avoid creating a conflict between the powers of the Council under Chapter VII of the United Nations Charter and legal obligations.
He expressed deep regret that, having achieved significant practical results, UNMIBH faced the possibility of an abrupt end. That unfortunate scenario would negatively influence positive tendencies in Bosnia and Herzegovina with respect to the rule of law, police reform, border control and the fight against terrorism and illegal migration. Ukraine looked forward to a satisfactory outcome of the current situation, which would allow a smooth transition from UNMIBH to the planned European Union mission, while maintaining United States engagement.
BOUBACAR DIALLO (Guinea) said that the smooth adoption of resolutions on UNMIBH and their successful implementation should proceed in a responsible fashion. But, recent discussion in the Council had revealed the delicate nature of extending that mandate. The entry into force on 1 July of the Rome Statute barely four years after its opening for signature attested to the international community’s resolve to bring to justice the perpetrators of heinous crimes.
The ICC, unlike the ad hoc tribunals for the former Yugoslavia and Rwanda, was a permanent Court whose universality was based on the agreement by States to be bound by a treaty, he said. That structure gave the Court its integrity and force. Under international law and judicial hierarchy, no Security Council resolution could modify the provision of an individual treaty.
With respect to peacekeeping operations, he said the Court’s principle of complementarity ensured that national courts retained their primary role in prosecutions and sentencing. Indeed, domestic courts were encouraged to continue their efforts in that regard. It was now up to everyone on the Council to adopt an approach that would recognize all aspects of the issue while safeguarding the integrity of the Rome Statute and that of peacekeeping operations.
ALFONSO VALDIVIESO (Colombia), noting that recent Council meetings on the ICC had allowed it to become better acquainted with the Court, said the Council had the political and legal responsibility of respecting the Rome Statute. He stressed that negotiations following the current debate should not only consider the opinions of Member States, but also those that the Secretary-General had addressed to the United States Secretary of State. That statement had legal and political importance and was the only opinion of an international nature thus far on the issue.
The Council resolution issued under Chapter VII could not satisfy the provisions of the Rome Statute, he continued. To act in that manner would lead to absurd conclusions. In such a scenario, the Council would have the competence to affect the jurisdiction of the ICC and, from a legal standpoint, one would be expecting the Court to act on the basis of the resolution, rather than its own Statute.
Colombia was concerned about the future of peacekeeping operations and insisted on the principle of complementarity, he said. The Rome Statute provided valid options to protect the interests of States that were not parties to it. The Council should be able to find a solution to the current problem that would make the full validity of the Statute compatible with peacekeeping operations.
TUILOMA NERONI SLADE (Samoa) expressed concern that the draft before the Council would undermine the purpose and meaning of the Rome Statute and raise fundamental issues touching on the obligations and responsibilities of States under international law, with reflections on the role of the Council.
The text proposed to exempt peacekeepers from the jurisdiction of the Court by way of blanket immunity, which would be unnecessary and set the wrong standards, he said. More seriously, the draft purported, pursuant to article 16, to grant immunity on a permanent basis, yet it was apparent on the face of the article that the true meaning and intent was to enable the Council to judge each case based on its particular circumstances. There was clearly no ground for a determination in advance and then in perpetuity.
Expressing his recognition of and respect for the concerns of the United States, he said that throughout the negotiations great effort had been made to find the right accommodation. The consensus reached, by way of the provisions on complementarity, was enshrined in the Rome Statute. Fundamentally, those provisions reaffirmed and left to national courts the primary responsibility for the prosecution of their nationals, offered protection and substantially addressed the concerns expressed.
HASMY AGAM (Malaysia), noting UNMIBH’s tremendous contribution towards consolidating the rule of law and political stability in Bosnia and Herzegovina, said it was clear that the Mission was moving rapidly towards completing its core tasks by the end of the year. Nevertheless, the State and its institutions were still fragile and under pressure from the so-called “nationalist” forces. The continuing failure to apprehend indicted war criminals also remained an obstacle to permanent peace and national reconciliation. It was vital that the Council continue to support Bosnia and Herzegovina by extending UNMIBH’s mandate as planned.
Expressing regret that the Security Council had been placed in an untenable situation regarding the continuation of UNMIBH and the future of United Nations peacekeeping in general, he said he understood and respected the concerns of the United States since his own country also had reservations about the ICC. However, Malaysia viewed the entry into force of the Rome Statute and the establishment of the Court as vital in addressing impunity for war crimes, genocide, crimes against humanity and crimes of aggression, which were a major concern for all Member States. It was inappropriate that the future of UNMIBH, and possibly other peacekeeping operations, was being linked to the issue of the Court’s jurisdiction.
Giving immunity to peacekeepers would send the message that they were above the law, which was unacceptable, he said. There were sufficient safeguards to ensure that the ICC did not get in the way of peacekeeping operations. The fears and concerns of the United States were unfounded, and it should reconsider its position. Peacekeeping remained a vital tool in the maintenance of international peace and security, and its viability and effectiveness would be seriously affected if different sets of rules were allowed to govern different groups of peacekeepers.
HANNS SCHUMACHER (Germany), fully supporting the position of the European Union, said that beyond the case-by-case possibilities contained in article 16 of the ICC Statute, the Council would do itself and the world community a disservice if it passed a resolution under Chapter VII, in effect, to amend an important treaty ratified by 76 States.
Commending UNMIBH’s personnel, both collectively and individually, for their admirable performance under difficult and dangerous conditions, he said it was only a theoretical possibility that they would commit crimes falling under the jurisdiction of the ICC. To assert the need to contemplate that theoretical possibility was tantamount to compromising both the Rome Statute and the integrity of Mission personnel. He urged the Council to find a solution, on a case-by-case basis to safeguard the integrity of the Security Council.
MIKHAIL WEHBE (Syria) said the Secretary-General had made it clear that peacekeeping forces could not carry out criminal acts in violation of international law, which made those forces accountable before international tribunals, such as the ICC. The entire world had freely decided that the Court would be just and fair, trying without discrimination or exceptions the cases of those who had committed war crimes or crimes against humanity. Once the documents on the crime of aggression were complete, peacekeeping forces would not perpetrate acts that brought them under the Court’s jurisdiction.
He pointed out that cases would be tried before the ICC on the basis of complementarity, which did not allow the Court jurisdiction unless it was proven that national jurisdiction could not operate or when it was manifest that national courts had not fulfilled their duties in the required manner. The Rome Statute contained legal safeguards for such times, as the jurisdiction of the ICC came into play. It was thus necessary to find a suitable solution to the current issue with the United States.
IYA TIDJANI (Cameroon) said UNMIBH had consistently done a great job where international peace and security had been threatened in Bosnia and Herzegovina. It was essential that the Mission completed its mandate as it neared its end and the transfer of responsibility to the European nations.
Echoing the Secretary-General’s wish that the mandate be extended until
31 December, he said that would ensure a better future for the people of the Balkans, and for all other peacekeeping missions around the globe. Without consensus in the Council, however, solutions must be contemplated beyond mere technical rollover texts.
He said the role of the United States in maintaining peace and security was, quite simply, irreplaceable, and that country’s sacrifices were sometimes enormous. That must be borne in mind in order to render current and future peacekeeping work viable.
Ratification of the Rome Statute was now under way in Cameroon, although some concerns remained, he said. The United States had established a very strong linkage between its contributions to United Nations peacekeeping operations and possible legal exposure under the ICC. Such concerns deserved respect and a pragmatic solution should be found to that issue, which was threatening to undermine peacekeeping and the Security Council, and to cast a pall over the new Court.
ALLIEU KANU (Sierra Leone) said that victims of heinous crimes in his country and other places wanted justice to be done. They were calling on the United Nations to fight impunity and to hold the perpetrators of systematic and massive atrocities accountable. It was unthinkable that peacekeepers would engage in such atrocities, but even if Sierra Leonean nationals engaged in peacekeeping missions committed atrocities, the country’s judicial system had primacy over those nationals in conformity with the principle of complementarity contained in the Rome Statute.
Sierra Leone had ratified the Rome Statute in September 2000, he said, joining those who believed that creating a jurisdiction capable of complementing national systems, when they were unwilling or unable to prosecute suspects, was one of the most effective international instruments to prevent future conflicts, and gave redress to millions of victims. Hopefully, Council members would adhere to international law in their deliberations regarding the current proposal. Not only was respect for international norms at stake, but above all the lives and welfare of millions of individuals.
ARNOLDO LISTRE (Argentina) said the issue before Member States had affected international relations in the two essential areas of peace and justice. Those two elements could not appear to clash as each was an essential precondition for the other. The ICC was not created to administer justice in a vacuum, above and in opposition to legitimate national interests. On the contrary, the history of the negotiation process and the balance it represented attested to the clear aim of the international community in accordance with the national objectives of security and sovereignty. The ICC would serve to bolster the system of maintaining peace.
He said the proposals being considered in the Council might be injurious to the United Nations and the rule of law and might lead to a distortion of the spirit of and a departure from the letter of a key provision of the Rome Statute, thereby weakening the Court’s powers to render justice independently and impartially. That might also adversely affect the legitimacy of the Security Council. Above and beyond those considerations, it must be kept in mind that the continuity of the peacekeeping mission in Bosnia and Herzegovina, and possibly others, was at stake.
DEJAN SAHOVIC (Federal Republic of Yugoslavia), while noting the important progress made in stabilizing the Balkans and rebuilding its post-conflict societies, stressed that the process was not yet complete. The international community was still very much needed. While the European Union, through its stabilization and association process, was playing the pivotal role, the United Nations, through the Security Council and its peacekeeping, was an irreplaceable actor in the equation.
While the process towards peace and stability was under way, there were still political forces in the area that would like to see it fail, he said. Those forces had been defeated, but not politically buried. They would certainly look forward to, and try to take advantage of, the withdrawal of the United Nations from the region, and the failure of the ICC to stand on its own feet.
He appealed to Council members to find a way out of the present stalemate. There were legitimate concerns, but an understanding of the overall context would prevail and acceptable solutions would be found. Those solutions would ensure that the credibility of the Council was preserved, the rule of international law maintained, and that all could continue to rely on United Nations peacekeeping in striving to achieve genuine peace and security.
BRUNO RODRIGUEZ PARRILLA (Cuba) said the Security Council was not the proper place to discuss treaties or the ICC, because the Charter had not empowered it to do so. Although Cuba was not a party to the Rome Statute, it believed the legitimate rights of States that had signed and ratified it must be respected. The decision of the United States on 6 May to “cancel” its signature had been “disquieting”, and there was absolutely no guarantee concerning existing or future legal instruments signed by that country. Indeed, the United States had launched an "armed assault" on a series of treaties.
At the same time, the Security Council did not have the capacity to amend international treaties as agreed to by States parties, he said. What was being debated today was the United Nations Charter and the mandate that it had entrusted to the Council. If the Council endorsed the gross violation of international law under review, it would be imperilling the founding principles of the United Nations and its very existence as defined in the Charter.
On what grounds had the United States tried to justify its attempt to veto the peacekeeping mission? he asked. On 30 June, that country had asserted that it
continued to be a special target and could not allow its decisions to be questioned by a Court that it had not recognized. It would have everyone believe that it deserved different treatment for the risks it assumed as a guarantor of peace and security in the world.
The inconsistency and double standards of the United States position became evident when it expressed opposition to the ICC, but expressed firm support for two other ad hoc tribunals, he said. Today was about the increasingly unilateral policies of the United States, which should not be seen in isolation from other such actions, including its withdrawal from the Anti-Ballistic Missile Treaty and its refusal to ratify the Comprehensive Nuclear Test-Ban Treaty (CTBT). It was unacceptable to hold United Nations peacekeeping operations hostage to the narrow interests of the United States. If the Council gave in to United States pressure, it would have to face grave consequences, he warned. The world's super-Power was exhibiting "unlimited arrogance", as it sought to act outside international law.
JEREMY GREENSTOCK (United Kingdom) said the concerns of the United States about the ICC had created a potential problem for the Security Council and for the United Nations generally. Members of the Council and of the United Nations should work towards a responsible solution which would encourage the ICC to fulfil its functions in accordance with its Statute, while, at the same time, permitting vital peacekeeping operations of the United Nations to continue.
The United Kingdom would continue to work towards those ends, and to assist others in helping to build stability in Bosnia and Herzegovina, he continued. Expressing regret over the uncertainty that had arisen about the future of the UNMIBH mandate in past few days, he called on all sides to work towards a solution to provide a sound basis for future United Nations engagement in Bosnia and Herzegovina and elsewhere.
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