International Criminal Court safeguards against politicization, key negotiator says
Speaking to reporters after the ICC Preparatory Commission wrapped up its final session, Philippe Kirsch of Canada, who was a key negotiator during the talks that produced the ICC's Rome Statute, responded to questions about United States-backed proposals being circulated in the Security Council aimed at precluding the prosecution of UN peacekeepers.
While noting that the US "has expressed some concern about political prosecutions," Ambassador Kirsch stressed that under the ICC's Statute, responsibility for prosecution lies mainly with the countries concerned, and the Court would only have jurisdiction if they were unable or unwilling to act.
In the United States, "a great democracy with a judicial system that functions perfectly well, it is extremely difficult to imagine that if American peacekeepers were to commit crimes of that nature - we're not talking about shoplifting here, we're talking about crimes against humanity, genocide, very serious war crimes - that the American system would not deal with it," he said.
The Statute, he added, was designed to make the Court a non-political – and exclusively judicial – body, and as such “is full of safeguards to protect the legal rights of the accused, of the States concerned and of the victims.”
The Security Council's jurisdiction, he pointed out, "is based on the existence of a threat to peace and security, and we have all been looking in vain as to what that threat to peace and security could be - it certainly is not caused by the International Criminal Court."
While the final outcome of the Council's deliberations could be perfectly consistent with the Statute, if it were not, "then we would be in a situation where the Security Council is rewriting treaties among States that have been perfectly, legitimately concluded, that have gathered immense support and again, are completely unrelated to international peace and security," he warned. In broad terms, this could harm the equality of all before the law.
Asked whether the ICC would be compromised by such an action, he said, "the operation of the Court is highly unlikely to be directly affected - frankly I think the credibility of the Security Council is much more affected by what is happening now."