The United States Dropped the Atomic Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution 1422

By El Zeidy, Mohamed M. | Vanderbilt Journal of Transnational Law, November 2002 | Go to article overview

The United States Dropped the Atomic Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution 1422


El Zeidy, Mohamed M., Vanderbilt Journal of Transnational Law


ABSTRACT

This Article discusses the recent adoption of the Security Council Resolution 1422 and its impact on international law. The Author asserts that the United States--a major proponent of Resolution 1422--desires to immunize its leaders and soldiers from the International Criminal Court's jurisdictional powers. The Author begins by describing the drafting history of Article 16 and its legal consequences. Upon highlighting the most significant reasons for opposing Resolution 1422, the Author delineates how the Resolution mirrors the inconsistency with the United Nations Charter and the Law of Treaties. Finally, the Author concludes that Resolution 1422 should be rejected because it violates certain peremptory norms and it conflicts with the letter and the spirit of existing international laws.

TABLE OF CONTENTS

 
   I. INTRODUCTION 
  II. BACKGROUND 
 III. ARTICLE 16 
      A. Drafting History 
      B. Legal Consequences 
  IV. ARTICLE 16 IN LIGHT OF SECURITY COUNCIL 
      RESOLUTION 1422 
   V. RESOLUTION 1422 IN LIGHT OF THE U.N. CHARTER 
      AND LAW OF TREATIES 
  VI. RESOLUTION 1422 AND JUS COGENS 
 VII. FINAL OBSERVATIONS REGARDING RESOLUTION 1422. 
VIII. CONCLUSION 

I. INTRODUCTION

On July 12, 2002 the Security Council (Council) adopted Resolution 1422, which is based on Article 16 of the International Criminal Court Statute (ICC Statute). For a renewable period of twelve months, the Resolution grants the Council authority to stop the commencement or continuation of a criminal investigation or prosecution.

Interpreters of Resolution 1422 have used different constructions to analyze the Resolution's meaning and its ramifications. One dominant theory posits that the adoption of Resolution 1422 delineates the Council's intent to augment its powers by amending the International Criminal Court Treaty. Thus, critics have urged against its adoption because the Resolution contradicts the letter and the spirit of existing international laws.

This Article sheds light on the essence of Resolution 1422 by challenging its legality and measuring its compatibility with different principles of international law. Part II describes why the United States supported the adoption of Resolution 1422 in light of the ICC's jurisdictional powers under Article 16 of the ICC Statute. Part III highlights drafting history and the legal consequences of Article 16. Part IV then examines the most significant statements made by formal and informal state representatives, which reflect their unanimous opposition to the Resolution's adoption. Part V discusses Resolution 1422's effect on the U.N. Charter and the Law of Treaties by describing how the Resolution mirrors the inconsistency with the two laws and the dangerous consequences resulting from such inconsistency. Part VI advocates for the invalidation of Resolution 1422, via the use of peremptory norms, because the Resolution violates those norms. Finally, Part VII examines, inter alia, the different possibilities of interpretation of the Resolution and concludes that the language of the Resolution is contradictory and, because of its misformulation, there may be practical problems in its application.

II. BACKGROUND

On July 12, 2002, the Security Council passed a dangerous resolution that paralyzed the International Criminal Court's (ICC) jurisdiction over U.S. soldiers participating in the peacekeeping operations in Bosnia and Herzegovina. (1) The original draft resolution intended to protect only the U.S. forces. Yet, due to international criticism against the United States, the Council adopted the current resolution protecting not only U.S. soldiers, but all non-member countries of the Rome Treaty from lawsuits under the ICC Statute. (2)

At the outset, the United States requested that the Security Council grant immunity to U.S. soldiers in Bosnia and Herzegovina from the ICC's jurisdiction for one year. …

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