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Compromise Shaping Up? US Mutes Stance on Council's Power

ROME.  In an otherwise tough speech about the need for the International Criminal Court (ICC) to not "operate in a political vacuum", US Ambassador to the United Nations Bill Richardson downplayed what has been for months Washington's insistence on Security Council control over the court.

"From the point of view not only of law but of vital policy, the court must operate in coordination - not in conflict - with the Security Council and its role and powers under the UN Charter," Richardson told the plenary Wednesday.

But he did not repeat arguments made in recent months that the ICC must either await instructions from the council or receive the consent of involved states before prosecuting cases.

Richardson insisted that the Council, on which the United States holds veto power, must "play an important role" in triggering the court's functions. But he only specified two basic instances where the court should depend on the Council.

First, he argued that the 15-nation Council "must be able to pursue the means of peace", a seeming reference to the need of the body to remove any cases from the ICC which are the subject of Council-based diplomatic negotiations. Second, he noted that sometimes the Council's enforcement powers will be invaluable to ensuring cooperation from countries with the ICC's work.

Significantly, those two conditions were also given by Tony Lloyd, secretary of state for the British foreign ministry, in defining London's conditions for Council-ICC relations. Britain, unlike the US, accepts the 'Singapore compromise', in which the Council could positively vote to take items off the Court's agenda for brief, renewable periods of time but would not determine the entire ICC docket.

Richardson's lack of a mention of Council veto over ICC actions was well-received by human rights groups. "We can live with the US position on that," said Richard Dicker, associate counsel for Human Rights Watch.

That, however, may have been the only bright spot in the US envoy's speech. In general, Richardson balanced all declarations of support for the court with repeated admonitions that "we must carefully distinguish between what looks good on paper and what works in the real world."

Dicker criticised the ambassador for not even mentioning the issue of state consent, in which involved governments would have to give permission to the court to proceed with investigations. "It's a shame that Washington continues to leave open the possibility that any tyrant can block his own prosecution," Dicker said.

Among Richardson's opinions of "what works in the real world" were the need to restrict the prosecutor's right to initiate investigations and seek indictments on his or her own authority, a proposal he argued would turn the

post into "a human rights ombudsman." Instead, Richardson said, the prosecutor should have "maximum independence" after the Security Council or a state party refers a situation to the ICC's jurisdiction.

Nor must delegates add new crimes "that are not clearly criminalised under international law" to the court's docket. The White House has been concerned that dozens of actions - from the use of nuclear weapons to the deployment of landmines - could be defined as crimes against humanity on the basis of the current discussions. US Ambassador David Scheffer warned delegates not to add any new crimes here, arguing that the current negotiations are "not a lawmaking exercise."

"We are not here to create a court that exists to sit in judgment on national systems, to second-guess each action and intervene if it disagrees," Richardson said. "We are here to create a court that focuses on recognised atrocities of significant magnitude, and thus enjoys near-universal support."

The ambassador's sentiments also echoed the fears of the Pentagon that US peacekeeping efforts could be hindered by any politically biased actions by the ICC or its prosecutor. US defense officials, starting in March, conducted a series of meetings with military attaches around the world to warn them of the dangers of a strongly independent Court.

US officials, however, have taken pains to deny that the Pentagon has diverged in any respect from the US State Department or other branches of the government in its concerns. As one US official, who spoke on condition of anonymity, contended: "The State Department also made demarches to military officials on the same concerns - it just didn't get noticed. There is no Pentagon policy; it's all one government." Farhan Haq/IPS


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