Countries that are not party to the International Criminal Court can be referred to the tribunal when they lack an internal justice system capable of prosecuting war crimes properly, the Bush administration said yesterday.
That “practice” was established with a U.N. Security Council resolution that authorized the ICC late Thursday to try crimes in Sudan’s Darfur region, even though Khartoum has not ratified the court’s Rome Statute, administration officials said.
The United States did not block the measure despite its opposition to The Hague-based court in what officials described as a “very difficult decision” made in order to ensure that war criminals in Darfur are brought to justice.
“It establishes a practice,” said State Department spokesman Richard Boucher.
“Sudan doesn’t have a mechanism to show that there can and will be accountability for these crimes,” he said. “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.”
Several senior officials yesterday tried to explain why the administration demanded a special provision in the resolution that exempts nationals of nonparties to the ICC from prosecution while referring a nonparty to the court.
“Sudan is an extraordinary circumstance,” said Secretary of State Condoleezza Rice. “The international community has to act on Darfur. It has to act with great speed.”
Nicholas Burns, undersecretary of state for political affairs, said Washington did not veto the measure because it “felt strongly that we had to join the international community in a serious effort to see that justice was done in Darfur.”
“It was very important the international community speak with a single voice,” he said.
The United States and its Security Council partners “went through volumes of language” before they agreed on a text that was acceptable to both sides, Mr. Burns said.
The measure passed with 11 votes. The U.S. abstention was joined by those of China, Brazil and Algeria.
“Nationals, current or former officials or personnel from a contributing state outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing state,” the document said.
“We achieved precedent-setting assurances” that American citizens are exempt from the jurisdiction of the ICC, Mr. Burns said.
Mr. Boucher said the United States still has “fundamental objections to the Rome Statute and the International Criminal Court and, therefore, we wanted to build in certain protections.”
“But that in no way implies that we think Americans are committing crimes,” he said. “And if they did, of course they would be subject to American prosecution.”
Several officials indicated that there had been a heated debate in the administration on the issue, but those who lost the battle preferred to keep quiet.
In Khartoum, Sudanese hard-liners vowed to defy the council resolution.
“We will not allow any arrest or trial of a Sudanese official, unless they will arrest the 30 million Sudanese people and try them,” Abdul Galeel Nazeer Karori, a leading Islamist and member of Sudan’s ruling National Congress Party, said on state-run TV.