A looming confrontation that will rock the world

(Courtesy of The Daily News)

The recent approach of the US to the UN and its agencies has left many shaking their heads. The US, under President Roosevelt, played a seminal role in creating the UN and its key agencies after WWII and subsequently nurturing them. The UN was intended by Roosevelt to bring lasting peace to the world raising itself from the dust and agonising over the thousands of graves, marked and unmarked and nursing the thousands separated from their families.

The Organisation that Secretary-General Dag Hammarskjold once said was created not with the intention of taking mankind to heaven but to prevent it from going to hell, is today mired in hellish doubts about its future, particularly, with the US, its physical host, biggest funder and the one remaining global super power in a foul mood, pulling out of the Human Rights Commission, the UNESCO, ceasing cooperation with the WHO and threatening brutal funding cuts, despite agreed and long standing commitments.

Many criticisms

The UN, despite the many criticisms levelled against it, has chalked up many global successes. To begin with, despite being unable to eliminate regional conflagrations, it has, inter alia, succeeded in avoiding a global war, contributed to improving living standards and advanced the rule of law and respect for human rights.

The US for its part, a key architect of the UN, has successfully manoeuvered the Organisation on countless occasions to achieve its global security agenda and policy goals, while maintaining a mantle of legal legitimacy and moral justification. The UN was a convenient silk curtain to achieve other goals. The fact that following the decolonisation process and the emergence of other economic and military power centres, especially China, that has not always been at the beck and call of the Western alliance has irked the West, in particular the US.

China’s emergence as a global power, in particular, has become difficult for the Western world to absorb, given its domination of the rest of humanity for centuries.

While using the UN and its agencies to castigate others, e.g., Sri Lanka, North Korea, Iran, Venezuela, over Human Rights issues, the US has had no qualms about using its muscle to block a resolution tabled by the 54 member African Group at the Human Rights Council on black deaths at the hands of the police in the US.

Allies, Australia and the Netherlands supported the US as it sought to suppress the international criticism. The US is not even a member of the HRC having pulled out in 2018 calling it a “cesspool of bias”.

As the Conversation commented n 2018, “Haley and Pompeo reassured that the US will continue to play a leadership role in human rights, despite its withdrawal from the HRC. And certainly, the US’ role on the HRC was in many ways positive.

For example, it took the lead in addressing impunity in Sri Lanka” Haley did say that the US will now pursue its Human Rights agenda at the UN and the Security Council.

The United States has also ceased cooperation and communication with UN Special Procedures mandate holders (experts appointed by the Human Rights Council to investigate specific human rights issues in both thematic reports and visits to States), including Special Rapporteurs, who have made official requests to visit the United States. These requests have been ignored.

Precedent

The precedent set by the US at the HRC may be difficult to manage in the future even when trying to raise genuine human rights issues around the world.

In addition the US has studiously used its long arm to block any action by the International Criminal Court (ICC) on violations of humanitarian standards by US or Israeli military personnel while readily supporting such action in the case of African leaders.

The Security Council, with US support, has referred the leaders of Libya (Libyan head of state, the late Muammar Gaddafi, his second son, Saif al-Islam Gaddafi, and Abdullah Senussi, Muammar Gaddafi’s intelligence chief) and Sudan (Former Head of State, Omar al-Bashir, Ahmed Haroun, Ali Kushayb, Abdallah Banda and Abdel Rahim Mohammed Hussein)to the International Criminal Court. The targeting of African leaders caused some African countries to threaten to leave the ICC.

The US may agree to refer others in the future and it is the veto wielding power of countries such as China and Russia that may operate as a constraint.

We are reminded that the US insisted on Article 98 of the Rome Statute which prohibits the ICC from requesting assistance or the surrender of a person to the ICC if to do so would require the state to ‘act inconsistently’ with its obligations under international law or international agreements unless the state or the third-party state waives the immunity or grants cooperation.

The US., having concluded over 120 bilateral immunity agreements (BIA) prohibiting such a transfer, even if the state is a member of the Rome Statute, has interpreted this article to mean that its citizens cannot be transferred to the ICC even if the state is a member of the Rome Statute.

The Bush Administration claimed that the BIAs were drafted out of concern that existing agreements—particularly the status of forces agreements or status of mission agreements (SOFAs or SOMAs)—did not sufficiently protect Americans from the jurisdiction of the ICC.

The United States, along with Israel and Sudan, having previously signed the Rome Statute has formally given notice of its intention not to ratify the Rome Statute. United States policy concerning the ICC has varied widely.

The Clinton Administration signed the Rome Statute in 2000, but did not submit it for Senate ratification. The George W. Bush Administration, the U.S. administration at the time of the ICC’s founding, stated that it would not join the ICC.

President Trump has said, “As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority.

The ICC claims near-universal jurisdiction over the citizens of every country, violating all principles of justice, fairness, and due process. We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.”

In April 2019, the United States revoked the visa of the Prosecutor of the International Criminal Court, Fatou Bensouda, in anticipation of a later investigation into possible war crimes committed by US forces during the War in Afghanistan.

The investigation was authorized in March 2020. In June 2020, Donald Trump authorized sanctions against ICC in retaliation.

ASPA

In 2002, the US Congress passed the American Service-Members’ Protection Act (ASPA), which contained a number of provisions, including authorization for the President to “use all means necessary and appropriate to bring about the release of any US or allied personnel being detained by, on behalf of, or at the request of the International Criminal Court”, and also prohibitions on the United States providing military aid to countries which had ratified the treaty establishing the court.

The US has, on occasion, also denied entry visas to certain individuals to attend meetings of the world body, including senior officials from Iran, Syria, Yemen, Libya, Venezuela, North Korea and Cuba, among others. The US will be severely challenged if it seeks to justify its actions as being consistent with its obligations under the Head quarters Agreement with the UN. (HQ Agreement, 11 UNTS 1).

With the US in the present confrontational mood, and the real risk of intractable conflict between the UN and the US, Covid19 provides a convenient way out with which the UN will be comfortable.

The members of the world body can now opt to address the organization through video link. An entry visa will no longer be a sine qua non for the purpose of entering the US and addressing the world body.

This mechanism, of course, will not sit comfortably with the New York hotels and restaurants, not to mention the hire car companies, but provides those who fall afoul of the US a way to address the international community.

The precedent set by the US at the HRC may be difficult to manage in the future even when trying to raise genuine human rights issues around the world.



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