Security Council Resolution Referring the Darfur Situation to the ICC

The text of the resolution, as well as a summary statements of Security Council members on the resolution, is here.

The resolution passed 11-0-4. The four abstentions were Algeria, Brazil, China, and the U.S. The technique of not necesarily supporting something but not preventing it either by abstaining has been a technique that has become more common in the Post-Cold War Security Council.

The resolution was enacted under Chapter VII on the UN Charter, the section of the Charter concenring breaches of peace and sucurity, and consequently could require states to comply with the resolutions amndates. The text of the resolution was parsed by various speakers at this weekend’s Annual Meeting of the American Society of International Law. While it is clear that the resoltuin required Sudan and other parties to the conflict to cooperate, it is unlikely that third paty states (such as the U.S.) are actually required to do anything. Note, in particular, the wording of operative paragraph 2 (I have emphasized certain words:

“2. Decides that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

The contrast of saying Sudan shall do something while other satets are simply urged was quite possibly one of the key bargaining points. Regardless as to whether third party states are required to cooperate, one would hope that they would, as successful prosecutions are in everyone’s (including the U.S.’s) interest (well, except perhaps for those Sudanese who committed genocide or war crimes…).

Now that the ICC has received an important referral from the Security Council, it will need to show that it is up to the task of taking on such big cases. And let us hope it gets the cooperation it will need to achieve a just result.