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U.S. Department of State

Diplomacy in Action

13. Letter from Secretary of State Colin L. Powell explaining U.N. Security Council Resolution 1422 (July 16, 2002)




Dear Senator Helms:

Thank you for your July 10 letter of support for our efforts to ensure that U.S. forces sent into danger and hardship as UN peacekeepers do not also suffer from additional, unnecessary legal jeopardy from the International criminal Court.

We were determined to protect our peacekeepers from the moment the Rome statute, which established the ICC, entered into force. The alternative would have been to leave our peacekeepers unprotected. No one should underestimate our commitment to protect our citizens from action by a court whose jurisdiction over them we do not and will not recognize.

On July 12, the Security Council unanimously adopted resolution 1422 after weeks of heated debate. The resolution, under Chapter VII of the UN Charter, speaks directly to both the ICC and to UN member states. It contains a request, binding under the Rome Statute which established the ICC, that the ICC not commence or proceed with any investigation or prosecution of our personnel and officials for a year. It also requires, under the Chapter VII authority of the Security Council, that no UN member state take any action inconsistent with that request.

Resolution 1422 establishes the precedent of Security Council deferral of ICC action against non-parties to the Rome Statute arising from their involvement in any UN peacekeeping operation. In the case of UN-authorized deployments not under UN operational command, like SFOR in Bosnia and KFOR in Kosovo, the resolution protects any U.S. persons serving anywhere in the non-UN chain of command, including SACEUR and any current or former officials who may be involved in "acts or omissions relating to UN established or authorized operations." The resolution explicitly states the Council's intention to renew this deferral next year. Although we had hoped for an automatic.

The Honorable
Jesse Helms,
United States Senate.

renewal, Ambassador Negroponte already has expressed our
intention to seek renewal in a year's time.

Resolution 1422, however, is only a first step. We are determined to protect all our servicemen and women, not just those involved in UN peacekeeping.

We are seeking a global network of bilateral agreements under which Americans would not be surrendered to the ICC without the prior consent of the United States Government. Such agreements are consistent with Article 98 of the Rome Statute. These so-called "article 98" agreements would cover all our military personnel, whether stationed in or transiting through other countries party to such agreements, during their assignments and later on, while traveling as civilians or after retirement.

I already have sent instructions to our embassies around the world to begin these negotiations, which will take time. Security Council resolution 1422's one-year deferral of ICC action gives us the time necessary to negotiate with as broad a group of countries as possible.

I am proud of the record of the United States in helping the world define, defend, and, where necessary, acting through the UN Security Council, prosecute war crimes, crimes against humanity, and genocide. Without the United States, there would not be an International criminal Tribunal for the former Yugoslavia, and Slobodan Milosevic would not he on trial before it. There would not be an International Criminal Tribunal for Rwanda, and those guilty of the terrible genocide there would not need to fear internationally sanctioned justice. And those who bear the greatest responsibility for the heinous crimes in Sierra Leone would not be brought before the Special Court there.

But I also am confident that the American system of justice can he trusted to punish any crimes that might be committed by an American, without the assistance of the ICC.

Colin L. Powell

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