At the last minute the decision was complicated by the request of the African Union (S/2008/481 [PDF]) for the Security Council to use its power to suspend a possible International Criminal Court (ICC) indictment of Sudanese President al-Bashir for genocide, saying that prosecuting Sudan's president might set back the Darfur peace process. Subsequent proposals to include a reference to Article 16 of the ICC statute in the resolution, which allows the Security Council to defer ICC investigations or prosecutions for a period of 12 months, resulted in differences among Council members.
Resolution 1828 (2008) was finally adopted with 14 votes in favour and an abstention by the United States.
Nearly half the Council had made the reference to the ICC a condition for renewing the peacekeeping mandate. The US ambassador to the UN said that, while his country supported the UNAMID mission, it was abstaining because the language on the ICC would send the wrong message when trying to eliminate the climate of impunity and there should be no compromise on the issue of justice.
In paragraph 9 of the preamble of the resolution the Council refers to the African Union's communiqué without mentioning the request:
“Taking note of the African Union (AU) communiqué of the 142nd Peace and Security Council (PSC) Meeting dated 21 July, having in mind concerns raised by members of the Council regarding potential developments subsequent to the application by the Prosecutor of the International Criminal Court of 14 July 2008, and taking note of their intention to consider these matters further”After the vote was taken, the ambassador of the UK, the resolution’s sponsor, stated that "no position has been taken by the Security Council on the question of whether to take any action on the proposal by the Prosecutor of the International Criminal Court to indict President Al-Bashir." He continued to say that it would not be right to discuss that issue as part of the UNAMID peacekeeping resolution. Although it was the SC itself that had decided in resolution 1593 (2005) that the situation in Darfur warranted an investigation by the ICC, the discussion on whether to invoke Article 16 of the ICC Statute in this case would "raise profound questions about the relation between peace and justice. It is not something the Council should rush into.”
On this issue, see the recent article by Priscilla Hayner: Seeking Justice as War Crimes Rage on. See also the blog by Alex de Waal: Ocampo’s Gauntlet to the UN Security Council.