"Statement of Brazil on the referral of the International Commission of Inquiry on Darfur to THE International Criminal Court"


Statement by Ambassador Ronaldo Mota Sardenberg
 Permanent Representative of Brazil to the UN
 Security Council, New York, March 31st, 2005


Brazil is in favor of the referral of the situation in Darfur to the International Criminal Court (ICC). Nevertheless, Brazil was not able to join those members that voted in favor of the resolution. We remain committed to bringing to justice those accused of the crimes mentioned in the report of the Commission of Inquiry, and, in that sense, we are ready to fully cooperate whenever necessary with the International Criminal Court.

The maintenance of international peace and the fight against impunity cannot be viewed as conflicting objectives. Brazil reiterates that the ICC provides all the necessary checks and balances to prevent possible abuses and politically motivated misuse of its jurisdiction. Thus, efforts to secure broader immunities from the jurisdiction of the Court are both unwarranted and unhelpful, in our view.

This is the first time the Council has approved a referral of criminal matters to the International Criminal Court, and that approval offers a rare opportunity for the Council to act promptly in one of the most important issues on the international agenda.

However, from our point of view, the referral should not be approved at any cost. Brazil understands that there are limits to negotiating the approval of the referral within the Council, and they refer, first, to the responsibilities of the Council vis--vis an international instrument; secondly, to the integrity of the Rome Statute, which now has 98 ratifications; and thirdly, to the consistency of the position we have sustained since the negotiations on the Rome Statute. For those reasons, Brazil abstained in the voting on the resolution on the referral.

As recommended by the report of the International Commission of Inquiry, the ICC remains the only acceptable instance of criminal law for dealing with the issue of accountability in the Sudan. We have exhaustively negotiated a text that could better reflect both the concerns of countries non-parties to the Rome Statute, as well as the commitments of those countries that have ratified that instrument.

For the sake of the referral, Brazil painstakingly agreed during the negotiations upon provisions that presented a serious level of difficulty for my Government, such as the exemption from jurisdiction for nationals of those countries not parties to the Statute, even though considering the need to approve the referral Brazil acceded to such a limited immunity.

To go further would constitute an inadequate and risky interference of the Council in the constitutional basis of an independent judicial body and a position inconsistent with the principles we have defended in the past on this issue.

The text just approved contains a preambular paragraph through which the Council takes note of the existence of agreements referred to in article 98-2 of the Rome Statute. My delegation has difficulty in supporting a reference that not only does not favour the fight against impunity but also stresses a provision whose application has been a highly controversial issue. We understand that it would be a contradiction to mention, in the very text of a referral by the Council to the ICC, measures that limit the jurisdictional activity of the Court.

In addition, Brazil also was not in a position to support operative paragraph 6, through which the Council recognizes the existence of exclusive jurisdiction, a legal exception that is inconsistent in international law.

These are substantial issues that, in our view, will not contribute to strengthening the role of the ICC which is our aspiration. Brazil has consistently rejected initiatives aimed at extending exemptions of certain categories of individuals from ICC jurisdiction, and we maintain our position to prevent efforts that may have the effect of dismantling the achievements reached in the field of international criminal justice.

Both the acceleration and the format of negotiations during the last few days have prevented some delegations from balancing the clear objective of referral to the ICC against the hindrances imposed thereon. Insurmountable constraints thus prevented Brazil from voting in favor of a proposal that we have always understood would be the appropriate instrument to help curb violence and end impunity in Darfur.