State Department Briefing on the ICC and Darfur; Some Thoughts on ICC Jurisdiction

Following is an excerpt from the State Department press briefing from April 1st in which Richard Boucher discussed Security Council Resolution 1593 (transcribed, along with state comments, here), referring the Darfur situation to the ICC (see also the press release from the ICC itself, with links to other resources, here).

Some of the questions focus on whether the Security Council referral is a novel basis for jurisdiction (see, especially the part I highlighted). While the Q&A on this was a bit muddled, I think the short answer is that such a referral is not a novel legal theory—it was contemplated in Article 13(b) of the Rome Statute. (I consider this further below the press briefing excerpt) The Security Council has always had significant powers under Chapter VII of the UN Charter, which covers threats to the peace. What we see here is how the Security Council may work together with the ICC to address such matters.

QUESTION: Can you explain why it is that the U.S. Government believes that citizens of Sudan, which signed the Rome Statute, but has not ratified it and therefore is not a state party to it, should be subject to its jurisdiction, when the crux of the American argument is that U.S. citizens should not be subject to its jurisdiction because the United States is not a state party to it?

MR. BOUCHER: You might understand that I think this is the third time you’ve asked this question today, and so my answer might be similar to the answer that previous officials, including the Secretary of State, have given to you to this question.

The United States believes very firmly in accountability for the crimes that have been committed in Sudan. We thought it was very important that the UN Security Council take action. As you know, we have explored, along with some of the Africans who have supported the idea, of an African-led tribunal that can do that, but all of us keeping to the fundamental point that it is vital to ensure accountability.

This is a Security Council action. This is an action where the Security Council has determined the crimes that have been committed need to be prosecuted, and the Security Council has determined what the appropriate forum is for those prosecutions. To that extent, it is similar to some of the other decisions that the Security Council has made; it’s just in a different court.

Second of all, I think the circumstances in Sudan, Darfur in particular, have been extraordinary and need to be addressed. Other states that are not party to this, including the United States, have appropriate judicial and legal vehicles to address crimes that might have occurred. The United States itself is in the process of prosecuting crimes or allegations against Americans who might have committed abuses in Iraq. And we’re demonstrating, I think, to the world now that we do follow up on our own on those things.

No such mechanism exists in Sudan. We explored whether a mechanism like that could be established in Africa. There wasn’t sufficient support for that. And there is a mechanism that many members supported in terms of doing that before the International Criminal Court. And so we abstained because we think it is very important that these crimes are prosecuted.

QUESTION: Did the Security Council stay within the rules when it did what it did last night? In other words, there’s a treaty here. I don’t think that the Security Council has the power to go beyond what the treaty says. Was there an overreach by the Council in this regard?

MR. BOUCHER: I think first of all, that would have to be a question the treaty would have to – treaty members, parties, would have to try to answer. If there is any legal question, I have not seen one raised. Certainly, the nine members of the Council, I think it is, or parties to the treaty, didn’t think so.

We have — I mean, it was important to us in this resolution to achieve two things, and that we did achieve: one was accountability for the crimes, and two was protection for Americans who are not party to the treaty.

The fact that this was done, and I think you’ll see this in the explanation of the vote we gave in the UN and other statements that we have made, the fact that this was done by the Security Council is important to us, but nonetheless, we still have our fundamental objections to the Rome Statute and the International Criminal Court, and therefore, we wanted to build in certain protections. Those are built in for nationals of states not party. The resolution also recognizes that absent the consent of the state involved or a Security Council referral that persons of states not party to the Rome Statute should not be subject to ICC jurisdiction.

The resolution also takes note of Article 98 agreements within the scope of the Rome Treaty. As you know, we signed a number of those, I think over 100 — or 99, sorry, Article 98 agreements the United States has already entered into.

QUESTION: Do you have one with Sudan?

MR. BOUCHER: No. The other thing that is recognized is that none of the expenses incurred in the referral on the prosecution would be borne by the UN members, but rather they’ll be borne by parties to the Rome Statute. So in that way it protects, I think, our position on the Rome Statute, the International Criminal Court, but fundamentally what it achieves is something very, very important to all of us, and that’s it achieves accountability for the crimes of Darfur.

QUESTION: But let me follow up. You note that the resolution states that states that are not party must give their consent; therefore, if Sudan does not give its consent, and I believe it has not yet, no Sudanese citizen could be tried and therefore there would be no accountability for Sudanese citizens at all. Why —

MR. BOUCHER: Well, I —

QUESTION: No — may I finish my question?

MR. BOUCHER: It’s based on a false premise. I can stop you there.

QUESTION: Oh? How?

MR. BOUCHER: I just said absent consent or referral by the Security Council —

QUESTION: Excuse me —

MR. BOUCHER: In this case, we have referral by the Security Council.

QUESTION: Excuse me, but to go to the rest of the question — and forgive me for that error — why should not Sudan continue to argue what is essentially your position, that because they’re not a state party their citizens shouldn’t be subject?

MR. BOUCHER: Because, first of all, Sudan doesn’t have a mechanism to show that there can and will be accountability for these crimes; and second of all, because the international community has looked at this situation and decided that this is the appropriate way to ensure prosecution of some horrible abuses and crimes, crimes that we have called genocide.

QUESTION: But, Richard, doesn’t this set precedent for the future in that, you know, any country that is not a party to the ICC at some point may be referred by the Security Council to the ICC? And there are certainly plenty of countries in the world that don’t have the internal mechanisms to deal with such an issue, like Zimbabwe, for example, or there are several others that I could name.

MR. BOUCHER: As I said, the resolution itself recognizes that absent consent from the state or referral from the Security Council that parties, persons from states that are not a party, won’t be subject to this. But under those circumstances, they could be. So it’s — yes, it establishes a practice. As I think many of you know, one of our fundamental problems the United States has had, going back to the previous administration, I would add, with the Rome Statute has been the lack of Security Council oversight to begin with.

QUESTION: And just one more. Do you have a reason to believe that Americans could be accused of involvement in crimes in Darfur, which is why you wanted to have this protection clause?

MR. BOUCHER: No, absolutely not. We have — I think if you go back to Security Council resolutions, if I remember correctly, Liberia might have been the first, but there have been several Security Council resolutions that one way or the other have dealt with this kind of protection, it’s been fundamental to the United States to achieve that when we deploy people overseas. But that in no way implies that we think Americans are committing crimes. And if they did, of course, they would be subject to American prosecution.

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.