How “Similar” is US Exemption on Draft UNSC Referral of Syria to the ICC?

[Editor’s Note: Check out Ryan’s updated post, “Update: French Text Referring Syria to ICC Said to Replicate Standard Exemptions for US.”]

Yesterday I posted some thoughts on the draft Security Council resolution referring Syria to the International Criminal Court. One aspect I did not discuss is the potential dissimilarity of the exemption for US personnel compared to past exemptions in Security Council resolutions. Other commentators have suggested that the proposed exemption is (or would be) similar, if not a “copy-and-paste” job, from the previous Security Council referrals to the Court. I am not so sure.

Instead, the exemption in the Syria resolution may be much broader—another word for it is “unprecedented.” The Obama administration may thus be asking for something more than the Bush administration ever secured at the Council.

1. What does the exemption say?

The New York Times reports:

“[I]t exempts ‘current or former officials or personnel’ of countries that have not ratified the Rome Statute — except Syria. That way, if American soldiers are ever involved in the Syrian conflict, they would be immune from prosecution.”

2. Same old, same old?

If there are any meaningful differences between the exemption in the Syria resolution and past Security Council resolutions, you would not know it from what’s been said so far.

The New York Times, for example, ends its story reminding readers that the Security Council resolution referring Libya to the Court “also had language that specifically protected American soldiers from potential prosecution.” Likewise, John Bellinger, over at Lawfare, writes: “Similar language exempting U.S. personnel was also included in UNSCR 1970 (2011), which referred Qadaffi’s human rights abuses in Libya to the ICC, and in UNSCR 1593, which referred the human rights atrocities in Darfur to the Court.” And Mark Kersten, over at Justice in Conflict, writes: “In all likelihood, it will be a copy-and-paste job from previous Security Council referrals” which he says, “included precisely this unfortunate stipulation.”

3. The difference.

It is difficult to tell what is different, of course, because the draft text has not been made public. But here’s the crux: the past resolutions exempted US personnel (and other nationals of states not party to the ICC) only if they were acting pursuant to UN authorized or approved operations. The Syria exemption may have to go much further to meet US interests–because the White House is surely not assuming that any future US military action in Syria would be approved by the UN. (And if the exemption is to cover Israel, it will have to be de-linked from UN approved operations for that purpose too.)

That broader type of exemption for US personnel would be unprecedented.

Consider the texts of the prior Security Council referrals:

Libya resolution 1970 (2011):

“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”

Darfur resolution 1593 (2005):

“Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State”

Additional prior precedents worth considering are Security Council resolutions exempting US personnel from the ICC, but once again only as part of UN authorized operations. Here are three cases:

Liberia resolution 1497 (2003):

“Decides that current or former officials or personnel from a contributing State, which is not a party to the Rome Statute of the International Criminal Court, shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to the Multinational Force or United Nations stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived by that contributing State” (op. para 1 of the resolution authorized the establishment of the Multinational Force)

UN operations resolution 1422 (2002):

“Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise.”

UN operations resolution 1487 (2003):

“Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a 12-month period starting 1 July 2003 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise”

In sum, assuming the Times report is accurate, the administration is presumably asking for a broader exemption for the Syria referral–an exemption that is not tied to UN authorized operations. That means the administration has a tougher road ahead politically and legally. It also means that even if the resolution fails to pass the Council due to Russia’s veto, the White House will nevertheless have pulled off a remarkable success by having obtained other countries’ support for such a broad exemption. 

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Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.