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France and the United Kingdom worked together during
the last ICC Preparatory Committee meeting and introduced a
joint proposal on reparations to victims of war crimes.
Although the two countries had slightly different positions
on the court's power to order reparations, the two govern-
ments held extensive consultations with nongovernmental
organizations to discuss their proposals.
Reparations language was ultimately included in Article
73 of the ICC draft statute. But allowing the ICC to award
reparations could easily destabilize peacekeeping opera-
tions. For instance, if the court decides that one formerly
warring faction must pay reparations or return conquered
territory to another, peacekeeping troops could find them-
selves in the messy situation of either carrying out or
refusing to carry out the court's judgment. Either way, one
faction will be upset and the peacekeepers will be caught in
the middle.
There is also the more subtle possibility that the
court will indirectly interfere in how peacekeeping opera-
tions are conducted by changing the dynamics of military
decisionmaking and the focus of command responsibility. In
December 1997, for example, a dispute broke out between
France and the Yugoslavia tribunal. French defense minister
Alain Richard stated that France would refuse to permit its
officers who served in the multinational peacekeeping force
during the war in Bosnia to answer subpoenas and testify
before the tribunal. He said that France is unwilling to
expose its officers to possibly adversarial questioning that
could implicate French military personnel in not stopping
the war crimes they witnessed.46 As the French realized,
allowing an international tribunal to subpoena peacekeeping
troops could interfere with how peacekeeping commanders make
their decisions in the future; that is, commanders would
feel pressure to put their soldiers in harm's way when they
otherwise would not, or risk being second-guessed if they or
their soldiers were called before an international court to
provide testimony about crimes they witnessed but did not
stop. As a result, peacekeeping troops could find them-
selves effectively forced into combat situations to avoid a
court-induced perception that they were negligent bystand-
ers.
Finally, there is the added concern that charging a
nation's political and military leaders with war crimes will
undermine efforts to resolve international conflicts.