Inner City Press -- Investigative Reporting From the Inner City to Wall Street to the United Nations

At UN, Rice Defends Libya Resolution's ICC Carve Out, Calls Mercenaries Small

By Matthew Russell Lee

UNITED NATIONS, March 1, updated -- The Obama administration's demand to exempt from the UN Security Council's referral of the situation in Libya to the International Criminal Court citizens of nations which are not members of the ICC was criticized Tuesday by Brazil and even Liechtenstein's Ambassador, then strangely defended by US Ambassador Susan Rice.

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.

  Araud said, “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 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 seems a bit strange.

Obama, Hillary & Susan Rice: impunity not shown

 There may have been a better, albeit not to Inner City Press persuasive, defense. At a UN press conference earlier on Tuesday, Inner City Press asked Liechtenstein's Ambassador about the paragraph, and he pointed out the exemption is limited to “alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council.”

While in one reading mercenaries are “RELATED to operations in the Libyan Arab Jamahiriya established or authorized by the Council,” another reading would limit it to peacekeepers. That Susan Rice didn't advance this argument, but rather argued that mercenaries are small, is telling.

Inner City Press has asked Brazil about its opposition, and if the US ever sought a bilateral immunity agreement from Brazil. No, Brazil's Permanent Reprentative replied, smiling.

Inner City Press also asked Liechtenstein's Ambassador about a Wikileaked meeting between ICC Prosecutor Luis Moreno Ocampo and then US Deputy Permanent Representative Alejandro Wolff and Rice, at which Ocampo alleged that Sudan's Omar al Bashir has stolen and exported $9 billion from Sudan. (Rice has insisted she does not remember the meeting, but said she would look back into it).

Liechtenstein's Ambassador declined to comment beyond saying that the ICC Prosecutor has to meet states, even non ICC members. He also called “necessary” the UN's flying of ICC indictee Ahmed Haroun in Sudan, a matter on which France but not the US has complained. Watch this site.

Update of March 2, 2011, 11:52 am -- we have received the following, which we publish in full (and reply to)

From: Stefan Barriga [at] nyc.llv.li
Date: Wed, Mar 2, 2011 at 11:42 AM
Subject: yesterday's press conference with Amb. Wenaweser
To: "Matthew.Lee [at] innercitypress.com"
Cc: Christian Wenaweser [at] nyc.llv.li

Dear Matthew, regarding your reflection of yesterday’s press conference with Amb. Wenaweser under http://www.innercitypress.com/usun2merc030111.html, we would like to point out that the sentence “He also called “necessary” the UN's flying of ICC indictee Ahmed Haroun in Sudan, a matter on which France but not the US has complained.”

is not accurate. He only commented on the UN’s policy in general, as you can see on the webcast archive at 47.10. We would be grateful if you could make that correction.

Duly noted. Since Inner City Press asked Amb. Wenaweser as head of the Rome Statute State Parties to comment on the UN flying ICC indictee Haroun and all he recited was the UN's rule for dealing with indictees, it seemed fair to assume from his lack of criticism for the flight that he thought the flight met the UN's stated rule.

 We were also surprised by his lack of comment on Prosecutor Moreno Ocampo's Wikileaked meeting with the US Mission to the UN, and the lack of response what on mechanisms to control the ICC Prosecutor's behavior exist and are used. It would be helpful to know what Amb. Wenaweser actually thinks of the UN flying Ahmed Haroun around.

Update of 4:28 pm -- Amb. Wenaweser's office has replied on this that "Ambassador Wenaweser is not in a position to comment on the specifics of the question regarding Ahmed Haroun, mainly for two reasons: First it is primarily up to the UN to interpret and apply its policy; second it is difficult for him to judge from afar whether this was, under these concrete circumstances, indeed an essential contact or not." Nor has the UN been will to state who decided it was essential to provide a UN flight to an ICC indictee from a country with an air force which has bombed both Darfur and Southern Sudan...

Note that member states own and are free to assess what the UN does, and to ask for information from the UN in order to do that.

Footnote: Araud blaming the US position on "parliamentary constraints" seemed to some a way to try to blame a decision by Obama's executive branch on the Republicans who recently took over the House of Representatives. But it was an Obama administration decision. More nuanced apologists blame the Defense Department for pulling rank on State. But the result is mercenaries firing freely.