"We concluded [...] that genocide has been committed in Darfur, and that the government of Sudan and the [Janjaweed militia] bear responsibility," then U.S. Secretary of State Colin Powell told members of Congress in September 2004. With one word - genocide - Powell catapulted the United States to the forefront of international efforts to end abuses in war-torn western Sudan. "Today we are calling on the United Nations to initiate a full investigation [...] into all violations of international humanitarian law [...] that have occurred in Darfur, with a view to ensuring accountability," he added. Six months later, those statements would compel the U.S. government to allow the UN Security Council to refer the Darfur situation to the International Criminal Court (ICC).
The Bush administration surprised the court's proponents and detractors alike this March when it abstained from the Security Council's vote on Resolution 1593 instead of using its veto power. To some, the United States' silence signaled an implicit recognition of the fledgling court as a valid international justice mechanism - a stark contrast with the three-year U.S. campaign to secure iron-clad exemptions from ICC jurisdiction. That campaign included the so-called "un-signing" of the court's founding treaty, threatening to veto UN peacekeeping operations unless exemptions for U.S. personnel were granted, authorizing the use of "all means necessary" to release U.S. or allied citizens detained by the Hague-based court, withholding U.S. military assistance to ICC supporters that refused to sign agreements promising never to hand over Americans to the court, and deleting ICC references from UN resolutions or demanding exemption from ICC jurisdiction where such references remained.

"What happened with the resolution [on Darfur] was that we were committed to seeing accountability. We still have a problem with the ICC and we're not going to become a party to it, but here we were not going to stand in the way of accountability for such atrocious acts given that jurisdiction for such an effort was available," former U.S. Ambassador-at-Large for War Crimes Issues Pierre-Richard Prosper told IJT. Yet for others involved in the resolution's negotiation, the U.S. decision was not so clear cut. The United States was in an "untenable position", a diplomatic source close to the Security Council said on the condition of anonymity. "They found themselves stuck between their overall policy on the ICC, and their wish and the need of the international community to do something in Darfur," he said.

ICC, "the only credible way"

In January 2005, the U.S.- requested UN Commission of Inquiry on Darfur concluded that abuses in Sudan constituted war crimes and crimes against humanity, but that with respect to central government authorities "no genocidal policy has been pursued and implemented." While stopping short of labeling the violence in Darfur genocide, the report unequivocally recommended an immediate Security Council referral of the matter to the ICC, citing the court as "the only credible way of bringing alleged perpetrators to justice."

"[U.S. officials] were the ones talking about genocide, even if it was not recognized as genocide by the UN," said a source close to the Security Council. "They needed on the one hand to have that resolution passed, but at the same time they had their ideological opposition [to the court]. They couldn't be against it, but they couldn't be for it" and so they abstained, he said.

"They got stuck," Richard Dicker, director of the International Justice Program at Human Rights Watch, concurred. "The United States presented this fantastic notion of transforming the Rwandan tribunal into an African Union court, but nobody was up for that because of a range of reasons. Members of the Security Council realized you couldn't just be creating new courts all the time - it would be costly and inefficient, and they already had a court to do this - it was the ICC."

William Pace, convenor of a global network of non-governmental organizations supporting the ICC, included domestic factors in the pressures created by the U.S. decision to label events in Darfur as genocide. "There is a theory that the faith-based groups in Washington played a role," Pace added. "[They] were very committed to stopping the violence [...] and that alone created a new dynamic wherein some in the extreme right found that their opposition to the ICC was not as great as their desire to end impunity in Sudan," he said.

Pace also considered individuals involved in the U.S. decision-making process. "The President's nominee [for UN ambassador] was not acceptable to the Senate, and there was a gap," he said, referring to the absence of current Ambassador John Bolton. An outspoken critic of the ICC, Bolton once said that the day the United States nullified its signature of the ICC treaty was the "happiest moment" of his government service. "There are some who mention [Secretary of State Condoleezza] Rice when they talk about the resolution," Pace added. "We were told that because she had a more constructive trust-based relationship with the President [...] she was allowed some flexibility," he said.

Protection for U.S. nationals

During eleventh-hour negotiations led on the U.S. side by Secretary Rice, carefully-worded exemptions were added to the resolution allowing ICC non-supporters other than Sudan to "opt out" of the court's jurisdiction in the case of Darfur. "We 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 Sudan, and because the resolution provides protection from investigation or prosecution for U.S. nationals and members of the armed forces of non-state parties," acting U.S. Ambassador to the United Nations Anne Patterson said in a statement explaining the U.S. decision to abstain.

The exemptions language enraged Sudanese officials, who oppose ICC jurisdiction like their American counterparts. Following the Security Council vote, Sudanese Ambassador to the United Nations Elfatih Erwa accused the international body of "double standards" by adopting a resolution that punished poor countries while providing immunity to the world's superpower.

"Formally the [Bush] administration has articulated a very proper attitude about the ICC but, in reality, led by ideologues like Bolton, they were out to kneecap the ICC," Dicker said. In November 2002, Bolton ridiculed the ICC before a conservative audience at the Federalist Society in Washington. "Why should anyone imagine that bewigged judges in The Hague will succeed where cold steel has failed? Holding out the prospect of ICC deterrence to the weak and vulnerable amounts to a cruel joke," he said.

But in the wake of the Darfur resolution, Deputy Secretary of State Robert Zoellick expressed a different perspective, saying that by referring the Darfur situation to the ICC, "in a way, even though [the ICC] hasn't proceeded to the investigation or [...] trial stage, it's a useful deterrence [...] and allows us to emphasize [...] the need to stop violence." At a July briefing in the Sudanese capital of Khartoum, Zoellick went a step further by suggesting that the U.S. might cooperate with the ICC. "[...] my country will cooperate as others will with that process [...] we believe that there should be accountability for criminal actions that rises up to the level of the ICC's jurisdiction."

According to Dicker, "it's too early to tell" whether the U.S. abstention signals a shift in its ICC policy. "One important measuring stick will be the extent to which the United States presses Sudan to cooperate with the ICC investigation," he said.

Tempered expectations

As Prosper would have it, the United States abstention does not signal a radical departure from earlier U.S. policy on the ICC. "We've always envisioned that the Security Council has the authority to grant jurisdiction over particular matters," Prosper said, alluding to the long-held U.S. position that the Security Council should have sole authority to trigger ICC jurisdiction. But in contemplating future U.S. cooperation with the ICC, former War Crimes Ambassador Prosper advised tempered expectations.

"The EU and other countries have primary responsibility to ensure that [the ICC] has sufficient resources and succeeds," he said. "We will watch as it develops and make decisions as it goes along, but one should not expect U.S. activity within this process." To mark the fourth Assembly of States Parties in The Hague from 28 November to 3 December, IJT reflects on the two major events the Court faced in 2005: the Security Council's referral of the Darfur case to the ICC in March, and the announcement of the first arrest warrants for Uganda in October. In this issue: how the USA was compelled to accept the ICC's jurisdiction over crimes committed in western Sudan. In the next issue: the Uganda file.