Statewatch article: RefNo# 3282
US/EU/ICC: Farcical birth of International Criminal Court
Statewatch bulletin, vol 12 no 3 (May-Jul 2002)
On 17 July 1998, the Rome Statute on the creation of an International Criminal Court (ICC) to prosecute people accused of genocide, crimes against humanity and war crimes was agreed. The treaty was welcomed by governments, lawyers and civil society groups as the most significant development in international law since the UN Charter more than 50 years before. For the court to be established sixty states had to ratify the treaty. The sixtieth was marked by a ceremony at the UN headquarters in New York on 11 April 2002 and the Rome Statute duly entered into force on 1 July. The ICC will be located in The Hague, the Netherlands, and is expected to be up-and-running in the first half of next year. 139 states have now signed the treaty and over half have ratified it.

US and them
In keeping with the new mantra of US unilateralism and disregard for international law, the Bush administration has condemned the ICC since coming to power, 'unsigning' the Rome treaty and signing domestic legislation against the future court. In May it took a further step, attempting to insert a paragraph into a UN Security Council Resolution on East Timor to remove the actions of peacekeepers there from the jurisdiction of the ICC. This proposal was rejected, but the US reintroduced its demands on 19 June in regard to the renewal of the UN peace-keeping operation in Bosnia-Herzegovina and also proposed a general resolution to exempt peace-keepers from non-ICC states stationed anywhere in the world. This time it threatened to withdraw all US personnel from all UN peace-keeping operations if it did not get its way.
Opposition from the international community was fierce and lead by an apparently united EU which together with the 10 accession candidate states expressed its "deep regret" through the current Danish presidency. Kofi Annan, UN Secretary General, publicly told the US to reconsider, governments from no-less than 116 UN member countries stated their opposition, while the UK ambassador to the USA, Jeremy Greenstock said the UK was "unalterably opposed".
A temporary extension of the UN Bosnia mandate was agreed on 21 June and again on 3 July, giving the UN Security Council a further 12 days to resolve the situation. During this period, opposition to the US proposals among key states weakened considerably, first with UK backing for the US demands, followed soon after by four more of the 15 voting Security Council members: Russia, Norway, China and Cameroon. In an open-session of the UN Security Council on 10 July, representatives of 72 countries made statements again opposing the proposal, but on 12 July, the other nine voting states - Bulgaria, Columbia, France, Guinea, Ireland, Mauritius, Mexico, Singapore and Syria - accepted a "compromise" and adopted Resolution 1422 (2002).

UN Security Council Resolution amends Treaty
It is hard to see how the Resolution can be described as compromise. Article 1 requests UN states not to allow ICC investigation or prosecution of officials or personnel from a country not Party to the Rome Statute (such as the US) involved in any "UN established or authorized operation", for a twelve-month period, starting on 1 July 2002. Article 2 provides for annual renewal of Article 1 "under the same conditions each 1 July for further 12-month periods for as long as may be necessary" (this rolling extension is the "compromise"). Article 3 orders the member states to abide by Article 1 and their UN obligations.
The Resolution raises various questions as to the effect and validity of international law-making. It is based on Chapter VII of the UN Charter, requiring the Security Council to consider a "threat to the peace", "breach of the peace" or "an act of aggression", though it is quite obvious that none of these conditions apply to the ICC (the US argued that the crisis it had contrived in threatening to withdraw its peacekeepers from Bosnia constituted a "threat to the peace"). Under Article 3 all UN member s

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