By Matthew Russell Lee
UNITED NATIONS, May 13 -- When International Criminal Court prosecutor Fatou Bensouda came out of the UN Security Council at noon on May 13, Inner City Press asked her about the pending Franco-American draft resolution to refer some of the conflicts in Syria to the ICC.
Specifically, Inner City Press asked Bensouda if the carve-outs, for the Golan Heights and Israel and for citizens of non-member nations of the ICC like the United States, actually undercut the perceived legitimacy of international justice.
Inner City Press prefaced the questions with "maybe you won't answer this," and Bensouda answered, "You are right." But someone should answer it.
Inner City Press asked questions on May 8. It was reliably informed that there has as yet been no discussion among the Permanent Five members of the Security Council about the draft; one member exclusively told Inner City Press, I don't think it will be passed.
The issue also came up at the US State Department's May 8 briefing, where spokesperson Jen Psaki said the US supports the draft. She was asked about the occupied territory of the Golan Heights, but not about the full scope and cynicism of the carve outs.
In 2011 when the Security Council referred the situation in Libya to the ICC, the US demanded and got a similar but narrowed carve-out (Libya has no Golan Heights and therefore no Israel issue). Even so, Brazil threatened to abstain based on the cynicism of the US carve-out, as Inner City Press covered here.
So is the assumption that the current Elected Ten members of the Security Council are all less principled than Brazil in 2011?
In the rush to make the US position seem principled or progressive, or newsworthy when a veto by Russia or China would make the whole charade an exercise in P3 feel-good while Assad reclaimed Homs, are these questions not even being asked?
Needing this level of impunity shows a lack of confidence in the ICC. The message is, the ICC can be sicced on one's enemies, but only if one's friends are protected. The ICC is a tool.
In terms of sourcing, if it is said that the US and France -- fresh off its stealth and non-admitted opposition to mere human rights monitoring in Western Sahara -- refused to comment on their game, who else could be the source? P3 minutes two equals what?
Back in 2011, while publicly calling for an end to impunity, the US at a Council experts' meeting on the morning of February 26 demanded the following paragraph:
6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.
When the resolution was adopted later that day -- after Security Council ambassadors quietly attended a Chinese circus before the 8 pm vote -- Inner City Press asked French Ambassador Gerard Araud about the paragraph. (In 2014, Araud who is now slated to leave in July denied ever opposing human rights monitoring in Western Sahara, a position an African member of the Council during Araud tenure laughed at.)
Of the Libay carve-out, applicable to the prospective Syria carve-out, Araud said in 2011, “that was for one country, it was absolutely necessary for one country to have that considering its parliamentary constraints, and this country we are in. It was a red line for the United States. It was a deal-breaker, and that's the reason we accepted this text to have the unanimity of the Council.”
That day, Inner City Press was not called on to ask Ambassador Rice about the paragraph, and so wrote a story with Araud's quote and the paragraph.
On March 1, 2011 outside the UN General Assembly, Inner City Press managed to ask Rice:
Inner City Press: Can I ask you a question about the Security Council resolution? (inaudible) On the Security Council resolution that passed Saturday, some have now raised a question about the US asking for that paragraph six, which exempts Americans, and, I guess, others, anyone that's not an ICC member, from referral and prosecution by the ICC. They say it undercuts international law-Brazil said it, now the head of the Rome Statute grouping of member states said it. Why did the US ask for that? And don't you see a downside to saying there's no impunity if you are excluding people from referral?
Ambassador Rice: No, I don't see a downside. As you well know, the United States is not a party and we have thought it important, if we were going to, for the first time, affirmatively support such a resolution, to make sure that is was clear the limitations as to who jurisdiction applied to. That's why we supported that phrase. Your assertion and that of others that somehow this provides a pass for mercenaries, I think, is completely misplaced. I don't think that the International Criminal Court is going to spend its time and effort on foot soldiers that have been paid small amounts of money by Qadhafi. They're going to focus on the big fish, so I think your interest was misplaced.
Counting on the ICC not to prosecute a certain size of killer seemed and seems a bit strange. Watch this site.
