The Tenth Year Anniversary of UNSCR 1593, which Referred the Situation in Darfur to the International Criminal Court

Ten years ago today, on March 31, 2005, the U.N. Security Council adopted resolution 1593, which referred the situation in Darfur, Sudan, to the Prosecutor of the International Criminal Court for investigation. Although not a party to the Rome Statute, the United States abstained on the resolution, marking the beginning of a shift by the Bush Administration towards a pragmatic approach of ad hoc cooperation with the ICC in the Administration’s second term.   UNSCR 1593 also marked the first time the Security Council had referred a matter to the ICC where the Court did not have jurisdiction under the Rome Statute. In this retrospective post, I discuss: 1) the status of the ICC’s decade-long investigation of the Darfur situation; 2) the Bush Administration’s second-term “pivot” to a cooperative approach towards the ICC in certain cases; and 3) the Security Council’s referral of situations to the ICC, including Darfur and Libya. The ICC’s Darfur Investigation The ICC prosecutor has indicted seven individuals, including Sudanese President Omar al-Bashir, several Sudanese ministers, and a militia leader, for war crimes, crimes against humanity, and genocide. The ICC has issued arrest warrants for al-Bashir and four others. The current Prosecutor, Fatou Bensouda, has written to the Security Council several times to ask for international assistance to arrest these five. Russia and China, however, which have close ties with the Sudanese government, have blocked Security Council efforts to adopt any additional resolutions requiring cooperation by Sudan or other governments. In December 2014, Bensouda announced that she was “left with no choice but to hibernate investigative activities in Darfur” because of the Security Council’s refusal to act.   Earlier this month, the Court itself issued a statement calling on the Security Council “to take the necessary measures it deems appropriate.” The Bush Administration’s Second Term Approach to the ICC As is well-known, the Bush Administration was highly skeptical of the ICC when it initially entered office in 2001. This skepticism followed strong concerns expressed about the ICC during the Clinton Administration.  Under President Clinton, the United States had been one of only seven countries to vote against the Rome Statute in 1998, and many Defense Department and uniformed military officials remained concerned about the Rome Statute’s purported application to U.S. military activities on the territory of Rome Statute members, even though the U.S. itself had not agreed to join the treaty. In December 2000, President Clinton had ultimately agreed to approve signature of the Rome Statute, but stated that the treaty was so flawed that he would not send it to the Senate, saying "I will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.” President Clinton emphasized that signing the Rome Statute would allow the United States to remain “in a position to influence the evolution of the Court”, and would “enhance our ability to further protect U.S. officials from unfounded charges.” In May 2002, President Bush authorized the State Department to notify the U.N. Secretary General that the U.S. did not intend to become party to the treaty, thus freeing the U.S. of any obligations it had as a signatory. This so-called “un-signing” of the Rome Statute was viewed by many around the world, especially in Europe, as an effort to undermine the fledgling Court, which began operations in July 2002.   This perception of Bush Administration hostility was exacerbated by the enactment by Congress in August 2002 of the American Servicemembers Protection Act (ASPA), a strongly anti-ICC statute that generally prohibited the Executive branch from cooperating with the Court and required the cut-off of U.S. foreign assistance (including military training) to countries that had not signed so-called “Article 98” agreements with the U.S. in which they refused to surrender U.S. nationals to the ICC for prosecution. The ASPA went so-far as to preemptively authorize the use of military force to free any American officials imprisoned by the ICC in the Hague (earning the statute the moniker in Europe of the “Hague Invasion Act”). Although the ASPA was attributed by other countries to the Bush Administration (which Europeans loved to hate), the legislation had been drafted by Republicans in Congress during the Clinton Administration and was later supported by many Senate Democrats, including then Senators Hillary Clinton and John Kerry (who, of course, could have voted against it had they chosen to do so). In its second term, the Bush Administration adopted a more pragmatic approach towards the ICC.   While continuing to emphasize its objections to the Rome Statute’s purported jurisdiction over U.S. nationals, Administration officials signaled that the U.S. was prepared to work with the Court and ICC members in appropriate cases. President Bush decided to agree to refer the Darfur situation to the ICC because he was more concerned about the atrocities in Darfur than the theoretical possibility of prosecutions of Americans in the future. As Legal Adviser, I gave numerous speeches and interviews (eg, here and here)  explaining that the Administration wanted to pursue a “modus vivendi” with the Court and “find practical ways to work with ICC supporters to advance our shared goals of promoting international criminal justice.” In March 2006, Secretary Rice commented that cutting off aid to countries involved in counter-terrorism and counter-drug cooperation was “”sort of the same as shooting ourselves in the foot.” President Bush subsequently waived ASPA restrictions on foreign assistance to two dozen countries that were cooperating in the War in Terror. In April 2006, I told ICC President Philippe Kirsch that the U.S. would not object if the Special Court for Sierra Leone used ICC facilities to prosecute Charles Taylor. In 2008, Secretary Rice stated that the U.S. was prepared to veto any effort by China and other Security Council members to ask the ICC to defer its Darfur investigation. Regrettably, despite the Bush Administration’s efforts to work with ICC members in certain cases in the second term, many ICC members -- especially in Europe -- had come to dislike the Bush Administration so much that they refused to reciprocate. Even when U.S. officials indicated that the U.S. was prepared to agree to refer the Darfur situation to the ICC, British and French officials refused to include preambular language in UNSCR 1593 noting “that not all Security Council members were parties to the Rome Statute.” Throughout the Bush Administration’s second term, EU members continued to insist on their ideological goal of “universality” -- membership in the ICC by all countries -- rather than agreeing to work with the Bush Administration on a more practical approach. In retrospect, this European ideological rigidity was a missed opportunity to engage with the United States on international justice issues.  As I explained in this 2008 speech entitled “The United States and the International Criminal Court: Where We've Been and Where We're Going,” “ICC supporters are more interested in fighting ideological battles than they are in finding common ground….ICC supporters will ultimately have to decide which they value more: hewing to an idealistic commitment to universality or pursing practical efforts to build an effective court.” I emphasized in these remarks that U.S. concerns about an ICC had remained fairly constant over three decades (since the Congress had passed a resolution in 1990 supporting creation of an ICC that "respected the sovereignty of individual states") and were unlikely to change in the future: “the next U.S. administration – even if it wanted to support the ICC – is likely to share the same basic concerns about the Rome Statute that its predecessors expressed.”   I ended with this:

The core concerns of the United States about the Rome Statute have not been resolved during the past decade, and are unlikely to be resolved in the next decade, unless the Statute is changed. Accordingly, as we look forward, the United States will very likely remain outside the Rome Statute regime. This is a reality that ICC supporters should accept. Agreeing to disagree about the ICC is the essential first step toward developing a more mature and productive relationship that can effectively advance our shared goal of promoting international criminal justice. This will involve seizing opportunities for cooperative efforts where they exist and avoiding pitfalls that risk reigniting past tensions. We should be guided in our efforts by the premise that the ends we seek are far more important than the means by which we seek them. The United States and ICC supporters can do more to prevent impunity for serious crimes by working together than either can achieve on their own, and it is in our mutual interest to develop a relationship that recognizes this.

My urging unfortunately fell on deaf ears. EU countries, in particular, apparently having forgotten the history of the ICC during the Clinton Administration, hoped that the next American President would be more supportive of the ICC and that the U.S. would join the Rome Statute. Six years later, ICC supporters appear finally to have accepted the reality that the U.S. will not join the ICC for the foreseeable future and that ICC members must find ways -- as I had urged -- to work with the U.S. in appropriate cases, while addressing longstanding U.S. concerns. Security Council Referrals to the ICC UNSCR 1593 was also the first time the Security Council had referred a situation to the ICC Prosecutor. Article 13(b) of the Rome Statute authorizes the Court to exercise jurisdiction over a situation on the territory of a country that is not a party to the Rome Statute if the matter has been referred to the Prosecutor by the Security Council acting under Chapter VII of the UN Charter. The U.S. delegation had supported this procedure during the Rome Conference for situations involving states that were not party to the Rome Statute or who had opted out of ICC jurisdiction. The procedure was used again in February 2011 in UNSCR 1970, when the Security Council unanimously referred the apparent human rights violations in Libya to the Prosecutor. Libya was not a party to the Rome Statute. In that case, the Obama Administration (which had adopted a warmer, but still cautious, approach to the ICC) voted for the resolution. In May 2014, Russia and China vetoed a similar resolution that would have referred the situation in Syria (also not a party to the Rome Statute) to the Prosecutor. Some ICC supporters have objected to provisions included at the request of the United States in the Sudan and Libya referrals (and that would have been included in a Syria referral) intended to limit the impact of the referrals on the United States as an ICC non-party. These provisions prohibit the ICC from exercising jurisdiction over the nationals of non-ICC-members who may engage in activities (eg, military or peacekeeping) on the territory of the referred country (ie, Sudan/Libya/Syria) and also require the cost of the ICC investigations to be borne by ICC members and others who may contribute voluntarily. These provisions have been necessary to address congressional concerns about the ICC and are reasonable accommodations to the fact that the US is not an ICC member and objects to purported ICC jurisdiction over  US nationals. Conservative groups have not opposed all Security Council referrals of international atrocities to the ICC.   Although it objected to the Libya referral as premature, the Heritage Foundation has recommended that the Executive branch not block Security Council referrals to the ICC in certain circumstances: “the U.S. should abstain if the resolution addresses issues critical to U.S. interests and would not directly or indirectly undermine the U.S. policy of opposing ICC claims of jurisdiction over U.S. military personnel and its nationals. Moreover, the U.S. should insist that all resolutions include language protecting military and officials from non-ICC states participating in U.N. peacekeeping operations.”