The United States has asked the Security Council to renew resolution 1487, voted in 2003, which enjoins the International Criminal Court to refrain from investigating or judging citizens of states which have not ratified the Statute of Rome (read the United States).

In order to block this maneuver by the United States, which aims to maintain the impunity of war criminals acting under its banner, we are asking you, if you agree, to sign the following text, and to send it to the member states of the Security Council.

Moreover, we encourage you to pass it along to people you know so that they may sign it, with the aim of creating a chain letter campaign.

CETIM and AAJ

It should be noted that the government of Canada, Ireland, Jordan, Liechtenstein and Switzerland have taken the initiative to request a public debate in the Security Council on the question of renewing resolution 1487, pointing out that, “The proposal of renewing this resolution directly affects member states, in particular those that are parties to the Statute of Rome for the International Criminal Court, in the areas of international peacekeeping operations, fundamental questions of international law and the role of the Council in the observance of law and accountability before the law.”



ARGUMENTATION
THE MEMBERS OF THE SECURITY COUNCIL SHOULD REFUSE THE RENEWAL OF IMPUNITY FOR CITIZENS OF THE UNITED STATES

Demonstrating unshakable cynicism, in spite of proof of repeated and systematic violations of the Geneva Conventions and the avowed responsibility of its highest civil and military authorities for these violations, the government of the United States is in the process of preparing the renewal, by the Security Council, of the immunity enjoyed by its citizens from the jurisdiction of the International Criminal Court.

I. In June 2003, the Security Council adopted, by a vote of 12 (out of 15 possible), resolution 1487. It thus renewed, by invoking abusively (as on many other occasions) Chapter VII of the United Nations Charter, resolution 1422 adopted in July 2002. Resolution 1422 had enjoined the International Criminal Court to refrain during 12 months from investigating or judging any citizens of states not party to the Treaty of Rome (the Statute of the International Criminal Court) for acts or omissions related to any operation run or authorized by the United Nations. Moreover, in both of these resolutions, the Security Council expressed its intention of renewing this decision each year on the first of July, as long as it might be deemed necessary.

II. Security Council Resolution 1487 invoked Article 16 of the Statute of the International criminal Court. The Spanish version of this article states: “En caso de que el Consejo de Seguridad… pida a la Corte que suspenda por un plazo de doce meses la investigación o el enjuiciamiento que hava iniciado [emphasis added], la Corte procederá a esa suspension…”

In conformity with this text, it is obvious that the Security Council may request the Court to suspend an investigation already under way but that, on the other hand, it may in no case request the Court to refrain generally from investigating citizens of states not party to the Statute of Rome.

The English and French texts, however, differ from the Spanish version. They state, respectively, “No investigation or prescription may be commenced or proceeded…” and “Aucune enquête ni aucune pousuite ne peuvent être engagées ni menées…” The Security Council has interpreted these texts in such a way as to authorize itself to do what the Spanish version obviously does not allow. Considering that the three texts, Spanish, French, and English, as well as the Chinese and Russian, are considered authoritative, this way of interpreting Article 16 is, to say the least, questionable.

As many lawyers have pointed out, the intervention of the Security Council, as established by Article 16, confers, certainly, a limited autonomy on the Court. However, whatever may be the version cited as the official version, one may not interpret this article as giving the Security Council the right to paralyze totally for one year the work of the Court – with the possibility of indefinite extensions of the period of paralysis.

To do so would amount to eliminating all the Court’s autonomy. Neither may one interpret it as authorizing the Security Council to establish, by anticipation, a general privilege of immunity in favor of citizens of states not party to the Statute but participating in operations run or authorized by the United Nations.

Even if one does not accept the Spanish text (which requires that an investigation be under way for the Security Council to be able to exercise its right of suspending it – more logical and more in conformity with general principles of law), the minimal reasonable interpretation of Article 16 is that the Security Council may exercise the right that this article confers upon it only on a case-by-case basis and not in a general and anticipatory way.

III. Under pressure from the United States, the Security Council and the member states of the Security Council that voted for these resolutions violated several basic principles of law and of the very Statute of the Court:

1. by establishing a privilege of immunity, by anticipation, and in favor of an indeterminate and indeterminable number of persons, it violated the principle of the equality of all persons before the law;
2. by interpreting Article 16 of the Statute in such a way as to allow the International Criminal Court to refrain from investigating or prosecuting for one year, in a general way and for successively renewable periods, the Security Council totally eliminated the autonomy – already limited – of the Court and thus violated the principle of the independence of the judiciary;
3. the Security Council did not interpret Article 16 but violated it; having done this, it violated the Treaty of Rome itself, and the same thing can be said for member states of the Security Council that are parties to the Treaty;
4. the Security Council and, in particular, the member states of the Security Council that voted for resolutions 1422 and 1487 and that are parties to the Treaty of Rome also violated the Vienna Convention on the Law of Treaties, Article 18 of which states clearly that a state that has signed a treaty is obliged to refrain from acts which would defeat the object and purpose of the treaty.

IV. For all these reasons, we request that the member states of the Security Council refuse, by an explicitly negative vote, the cynical pretension of the government of the United States.

The vote must be explicitly negative. The abstention of France, a permanent member, during the vote for resolution 1487 did not prevent its being passed, even though the United Nations Charter (Article 27.3) requires the affirmative vote of the five permanent members of the Security Council for a resolution to be passed. This is the result of an old practice of the Security Council, which modified, de facto, Article 27 in order to allow a permanent member to show its disagreement with a resolution without preventing its adoption.

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