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| Kathmandu, Monday August 04, 2003 Shrawan 19, 2060. |
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UN peacekeepers’ immunity
from ICC
By HIRA B THAPA
The International Criminal Court (ICC) has
already come into operation since July 1st 2002 fulfilling all the requirements, the most
notable of which, is the deposit of the sixteenth instrument of ratification by member
states wishing to become Parties to the Rome Statute establishing the Court. The
above-mentioned court’s purpose is to prosecute and bring to justice all individuals,
irrespective of their positions, as per its provisions, for the four major crimes spelt
out in Article 5 of the Rome Statute.
Article 5 of the Rome Statute says, "The
jurisdiction of the court shall be limited to the most serious crimes of concern to the
inter- national community as a whole." The court has jurisdiction over the following
cases:
a) Crimes of genocide
b) Crime against humanity
c) War crimes
d) Crime of aggression
The Rome Statute in the same Article 5 further
elaborates that the Court shall exercise jurisdiction over the crime of aggression
conditionally and clearly states that the Court will not start exercising its jurisdiction
on this crime until the same will have been defined as per its Articles 121 and 123. The
crime of aggression has not been defined as yet even though negotiations for defining the
same have been going on since July 1998, when the Rome Statute was put to signature. The
issue of defining the crime of aggression has been of greater importance to the countries
belonging to the Non-Aligned Movement, many of whom remain suspicious of aggression. It is
premature at this stage to speculate when consensus will be reached on controversial
issues.
Apparently, it looks that ICC will initiate
action against any individual, should it be convinced that there are adequate reasons to
proceed to prosecute on the basis of three major crimes viz the crime of genocide, crime
against humanity and war crimes. In reality, the Court functions relying on the principle
of complementaries. The clearest evidence of this is Article 1 of the Rome Statute which
says, "An ICC (International Criminal Court) is hearby established, shall be a
permanent institution and shall have the power to exercise its jurisdiction over persons
for the most serious crimes of international concern, as referred to in this Statute, and
shall be complementary to national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the provisions of this Statute." What
follows from this provision is that no action can be initiated by the ICC against any
person for any of the three most serious crimes defined already, unless the national court
of the country to which the accused belongs fails to perform its responsibilities as
required by the provision of the Statute.
No less interesting is the issue of deferral of
investigation or prosecution by the International Criminal Court as provided for in
Article 16. This provision can ,however, be invoked only through the resolution adopted by
the United Nations Security Council, which should even be acting under Chapter VII of the
UN Charter. Chapter VII authorises or legalises the enforcement action, if need be, to
have the UN Security Council resolution implemented. Not surprisingly though, Arab nations
seem to put pressure on Security Council members to adopt a resolution concerning
Palestine, among others, acting on Chapter VII of the UN Charter keeping this reality very
much under consideration.
Despite the fact that the Rome Statute itself
allows any non-State Party, member state of the United Nations, to seek immunity for its
officials and personnel of the UN Peacekeeping Operations from the jurisdiction of the ICC
through the resolution of the UN Security Council, there was a great hue and cry at UN
Headquarters in May 2002 when the first resolution seeking immunity for such officials and
personnel of a non-State Party to the ICC Treaty was floated and debated among members of
the Security Council. The idea behind the introduction of such a resolution before the UN
Security Council presumably by the USA was that a contributor to UN Peacekeeping
Operations, which has not become a party to the ICC Treaty should have its legitimate
right to seek immunity from ICC’s jurisdiction for its peacekeepers. There was indeed
intense debate on whether or not the capacity of the Court to fulfill its responsibilities
to fight the culture of impunity would be impeded. Following several arguments and counter
arguments leading to the passage of the UN Security Council resolution in 2002, the
international community was convinced that any non-state party to ICC Treaty and
contributor to UN Peacekeeping Operations should have the options and the right to defend
the interests of their peacekeepers, who are likely to be deployed in a very difficult
environment, including civil laws.
In consonance with the existing provision of
Article 16 of the Rome Statue (ICC Treaty), the UN Security Council has passed resolution
1487 on June 12 2003 almost a year after the passage of a similar resolution last year.
Under the provisions of the text of UNSC Resolution 1487, adopted acting under Chapter VII
of the UN Charter, non-States Parties to ICC Treaty also reiterate their desire to
continue to fulfill their responsibilities in their national jurisdictions in relation to
international crimes. The essence of the resolution is to ensure that no current or former
officials or personnel, from a contributing state not a Party to the Rome Statute, over
acts or omissions relating to a United Nations established or authorised operation, shall
be investigated or prosecuted for a 12-month-period starting from the date of adoption of
the resolution, unless the Security Council decides otherwise.
Nepal’s involvement in the UN Peacekeeping
Operations spans four decades, covering both complex and traditional operations with
increasing vulnerabilities. In the likelihood of her peacekeepers exposed to activities,
that might be construed as an omission attracting the Rome Statute provisions, the passage
of the UN Security Council resolution 1487 is more than a welcome move for Nepal. Until
then, Nepal decides to become a State Party to the ICC Treaty, such resolution will serve
the interests of the country by providing immunity to her UN peacekeepers from the
jurisdiction of ICC.
Though Nepal will not have a direct role in the
adoption of the resolution that will offer yearly exemptions to personnel and officials ,
both former and current to UN or its authorised operations, she should at least make
efforts to see that such a resolution is adopted. The passage of such resolutions in
future too will have assured Nepal, a non-State Party to ICC Treaty, that their
peacekeepers close to 1000, according to the latest UN statistics, will be exempt from ICC’s
jurisdiction at least in relation to their peacekeeping duties.
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