Darfur: the ambiguities of the US exemption

11 April 2005 by HEIKELINA VERRIJN STUART

The Security Council's referral of the situation in Darfur to the International Criminal Court (ICC) has been hailed as a giant step in the history of international humanitarian law. It has also been criticised for applying double standards by exempting the United States from the ICC's jurisdiction.

Washington had little choice but to vote [by abstention] for the referral as it was one of the first countries to label the violence in Darfur 'genocide'. Had the US taken a principled stance against ICC jurisdiction over Sudan, it might have found itself branded an accomplice to genocide. In the end, America turned this delicate situation to its advantage. Voted by the Security Council on 31 March, Resolution 1593 contains a dangerous exception. It affirms the exclusive jurisdiction of states that are not party to the ICC statute over their own nationals, both for current and former officials, as well as for their personnel employed in operations in Sudan on mandates from the Security Council or the African Union. This is precisely what the US wanted and had been at the heart of heated debates in Rome in 1998 when the ICC treaty was negotiated. With such a guarantee in hand, Washington was free to vote for the resolution by abstention.

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