UNITED NATIONS SECURITY COUNCIL
THE SITUATION IN BOSNIA AND HERZEGOVINA
STATEMENT BY THE PERMANENT REPRESENTATIVE OF NEW ZEALAND
MR DON MACKAY
WEDNESDAY 10 JULY 2002
AS DELIVERED
Mr President,
New Zealand thanks the Council for acceding to the requests of Member States, including ourselves, for an open meeting
on the situation in Bosnia and Herzegovina. The broader issue before us today is of course the linkage being drawn
between the International Criminal Court and peacekeeping. This issue has implications of importance to all members of
the United Nations, not merely those party to the Rome Statute of the International Criminal Court. There are
implications for United Nations peacekeeping, fundamental issues of international law and the international treaty
making process, and the role of the Security Council itself.
No decision should be taken by the Council on such issues without full consideration and reflection of the views of
Member States who wish to express them.
Mr President,
We note at the outset the comments of the Secretary-General in his letter to the Council, and his advice that the issue
before the Council could only arise out of a most unlikely series of events, namely a situation where Service personnel
on peacekeeping duties were alleged to have committed crimes of genocide, war crimes or crimes against humanity, but
where the authorities of their own state were unwilling or unable to properly investigate those allegations. That is an
improbable situation.
The mere possibility of the existence of such a fact situation could not, in any event, be said to constitute a threat
to international peace and security contained in the issue such as would require a Council decision upon it.
Mr President,
Nor do we see this question as a conflict between the International Criminal Court and peacekeeping. To our mind, both
institutions are aimed at a common goal - at securing and maintaining international peace, and upholding the principles
on which this organisation stands. Neither should be held hostage to the other, and no State should be required to
choose between them as members of the Council are being asked to do in the current situation with the stark options
which have been presented to Council members.
New Zealand, as a State which is both party to the Rome Statute and a troop contributing country, sees no need or
justification for exemption of peacekeepers from the jurisdiction of the Court. We see only downsides to such a
proposal. To provide such an immunity in any fashion would seem to enshrine an unconscionable double standard. It
appears to place peacekeepers above the law - placing the moral authority of peacekeepers and the indispensable
institution of UN peacekeeping in serious jeopardy.
But to attempt to provide an immunity by the mechanisms currently under consideration by the Council raises even greater
difficulties. Attempts to invoke the procedure laid down in Article 16 of the Rome Statute in a generic resolution, not
in response to a particular fact situation, and on an ongoing basis, is inconsistent with both the terms and purpose of
that provision. While Article 16 allows the Security Council to stop investigations and prosecutions for a 12 month
period, its wording - as well as its negotiating history - makes clear that it was intended to be used on a case by case
basis by reference to particular situations, to enable the Security Council to advance the interest of peace where there
may be a temporary conflict between the resolution of armed conflict on the one hand and the prosecution of offences on
the other. Here, no such conflict between the two arises. It might also be used as a protection of last resort against
frivolous or political prosecutions. Again, that does not arise here. But Article 16 certainly provides no basis for a
blanket immunity to be imposed in advance.
Mr President,
Article 16 represents a careful and balanced negotiated compromise - and as one who participated in the negotiations of
article 16, as well as other provisions of the Rome Statute, I am only too aware of the delicacy of that compromise. It
was certainly never intended to be put to the use which has been proposed before the Council.
To purport to provide a blanket immunity in advance in this way amounts to an attempt to amend the Rome Statute, without
the approval of its States Parties. It would represent an attempt by the Council to change the negotiated terms of a
treaty in a way unrecognised in international law or international treaty making practice. Member States would have to
question the legitimacy and legality of this exercise of the role and responsibility entrusted to the Council.
Mr President,
New Zealand recognises that the United States has strong concerns about the International Criminal Court. We do not
share those concerns, but we respect that they exist.
Similarly though, we would ask that the Council affords the same respect to those States that have chosen to bind
themselves by the obligations of the Statute. We ask that no action be taken by this body which would purport to
undermine the terms or integrity of the Rome Statute or its implementation by its States Parties.
We believe that there are adequate protections within the Rome Statute that address the concerns raised by the United
States. In particular, we note that the Rome Statute was very deliberately built on the principle that national courts
have primary responsibility for the prosecution of crimes by their nationals. The ICC is a court of last resort. It may
conduct a prosecution only if impunity would otherwise result. There are also safeguards built in to prevent decisions
on prosecutions being taken based on political rather than legal grounds.
If such protections are not considered to be enough, however, it does remain open for individual States to take
additional measures to protect their interests - they could, for example, decline to participate in UN missions -
regrettable as that result would be - or negotiate appropriate bilateral agreements with host States. These options
should be considered first.
There are also various options in front of the Council itself, short of the enactment of a blanket immunity for
peacekeepers. Consistent with the mandate of Chapter VII, the Council should act to reach solutions in specific cases,
taking account of the full range of facts in each situation. Such facts will vary from case to case and from mission to
mission. We note the Secretary-General’s suggestion, for example, that a pragmatic solution already exists in respect of
the missions in Bosnia and Herzegovina and Prevlaka should the Council wish to pursue it.
We encourage each member of the Council not to proceed with a blanket immunity approach and to consider accepting such
pragmatic solutions, without sacrificing the principles for which the International Criminal Court stands - to put an
end to impunity, and ensure that the most serious crimes of concern to the international community must not go
unpunished.
Thank you Mr President.