The U.N. Security Council voted yesterday to refer the situation in Darfur to the International Criminal Court prosecutor. The United States, in a reversal of its previous position on the matter, decided not to block the referral. The U.S. was one of four Security Council members to abstain on the vote.
The Security Council press release on the vote includes the text of the resolution by which the referral was accomplished and this description of the U.S. representative's explanation of the American abstention:
Following the vote, ANNE WOODS PATTERSON (United States) said her country strongly supported bringing to justice those responsible for the crimes and atrocities that had occurred in Darfur and ending the climate of impunity there. Violators of international humanitarian law and human rights law must be held accountable. Justice must be served in Darfur. By adopting today’s resolution, the international community had established an accountability mechanism for the perpetrators of crimes and atrocities in Darfur. The resolution would refer the situation in Darfur to the International Criminal Court (ICC) for investigation and prosecution.
While the United States believed that a better mechanism would have been a hybrid tribunal in Africa, it was important that the international community spoke with one voice in order to help promote effective accountability. The United States continued to fundamentally object to the view that the Court should be able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute. Because it did not agree to a Council referral of the situation in Darfur to the Court, her country had abstained on the vote. She decided not to oppose the resolution because of the need for the international community to work together in order to end the climate of impunity in the Sudan, and because the resolution provided protection from investigation or prosecution for United States nationals and members of the armed forces of non-State parties.
The United States was and would be an important contributor to the peacekeeping and related humanitarian efforts in the Sudan, she said. The language providing protection for the United States and other contributing States was precedent-setting, as it clearly acknowledged the concerns of States not party to the Rome Statute and recognized that persons from those States should not be vulnerable to investigation or prosecution by the Court, absent consent by those States or a referral by the Council. In the future, she believed that, absent consent of the State involved, any investigations or prosecutions of nationals of non-party States should come only pursuant to a decision by the Council.
Although her delegation had abstained on the Council referral to the Court, it had not dropped, and indeed continued to maintain, its long-standing and firm objections and concerns regarding the Court, she continued. The Rome Statute was flawed and did not have sufficient protection from the possibility of politicized prosecutions. Non-parties had no obligations in connection with that treaty, unless otherwise decided by the Council, upon which members of the Organization had conferred primary responsibility for the maintenance of international peace and security.
She was pleased that the resolution recognized that none of the expenses incurred in connection with the referral would be borne by the United Nations, and that instead such costs would be borne by the parties to the Rome Statute and those that contributed voluntarily. That principle was extremely important. Any effort to retrench on that principle by the United Nations or other organizations to which the United States contributed could result in its withholding funding or taking other action in response.
The Council included, at her country’s request, a provision that exempted persons of non-party States in the Sudan from the ICC prosecution. Persons from countries not party who were supporting the United Nations’ or African Union’s efforts should not be placed in jeopardy. The resolution provided clear protection for United States persons. No United States person supporting operations in the Sudan would be subject to investigation or prosecution because of this resolution. That did not mean that there would be immunity for American citizens that acted in violation of the law. The United States would continue to discipline its own people when appropriate.