International: Update on the International Criminal Court

Women’s Initiatives for Gender Justice
On March 31st the UN Security Council adopted Resolution 1593, referring the situation in Darfur, Sudan, to the Prosecutor of the International Criminal Court. Four states, the USA, Algeria, China and Brasil abstained from voting on the resolution.
The resolution was passed two days after the Security Council adopted a resolution strengthening a previous arms embargo and imposing an asset freeze and travel ban on those who are considered responsible for the atrocities in Darfur, or who were violating the ceasefire agreement.
Given the United States’ active opposition to the ICC, their decision to abstain from, rather than veto, the resolution, was unexpected, and based on significant concessions. The concessions demanded by the United States include a paragraph stating that anyone who is a citizen of a country that has not ratified the Rome Statute of the ICC may only be prosecuted by their own national courts, and as such, can not be prosecuted by the ICC. Many countries were unhappy with this proposal because of the deliberate limitations it places on the ICC, and also because a number of countries have national jurisdictions that enable them to prosecute foreign nationals who have committed crimes against their own citizens. This includes the United States, which is currently detaining people of 35 different nationalities in Guantanamo Bay, Cuba. The detainees are labelled by the US Administration as ‘terrorist suspects devoted to killing millions of Americans’.

The US concession ensures that their citizens can only be prosecuted by the United States for actions in Darfur, and can not be prosecuted by the ICC or any other state.

It is estimated that over two million people in Darfur have been killed, raped, tortured and forcibly evicted from their homes since the conflict broke out in Darfur in February 2003. While all parties to the conflict have participated in the violence, the Sudanese government and the government backed Janjaweed militia are primarily responsible. The Report of the International Commission of Inquiry on Darfur delivered to the UN in January 2005 details widespread rape and sexual violence, including deliberate aggressions against women and girls during attacks on villages, gang rapes, abductions, torture and sexual slavery and continued attacks during flight and further displacement.

Because the Darfur conflict has been referred to the ICC by the Security Council, under Article 16 of the Rome Statute the ICC cannot begin investigations or prosecutions in Darfur for 12 months from the date of this referral.