UN Security Council – 1st Referral to ICC

In an update to the earlier post on the Sudan, the UN Security Council voted 11-0 to refer the war crimes of Darfur in western Sudan to the International Criminal Court (ICC) located in The Hague in the Netherlands. The 15-member council adopted Resolution 1593 just before midnight on 31 March 2005, more than two months after the International Commission of Inquiry 176-page report called upon the Security Council to “immediately refer” the situation to the ICC (p.148). The referral to the Prosecutor of the ICC applies to war crimes committed in Darfur since the entry into force of the Rome Statute of the International Criminal Court on 1 July 2002. This landmark decision represented the first time the Security Council voted to refer a case to the ICC and involved two controversial issues: the jurisdiction of the Court over a state not party to the Rome Statute and an immunity clause extended to states not party to the Rome Statute. Rather than veto the resolution, four countries abstained from the vote: Algeria, Brazil, China, and the United States.

Jurisdiction of the ICC
Must a country not party to the Rome Statute accept mandatory jurisdiction of the ICC? Yes, according to the Security Council majority vote, but the vote was not unanimous and both supporters and opponents of the vote expressed concern over jurisdiction. Lauro Baja of the Philippines defended the referral to the ICC as an urgent matter to protect human rights and the Security Council’s role and authority in regards to international humanitarian law. However, he raised the question of whether the Council has the prerogative to mandate the jurisdiction of the Court. Anne Woods Patterson, speaking for the United States, reiterated the fundamental objection by the US “to the view that the Court should be able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute.” Neither the Philippines nor the United States is party to the Rome Statute.

Moreover, the enforcement of jurisdiction is hindered by political and practical difficulties. The Sudan, which signed the Rome Statute on 8 September 2000 but did not ratify it, is incompliant with the procedures to grant permissive jurisdiction over the Darfur crimes (Rome Statute, art. 12 (3)):

3. If the acceptance of a State which is not a Party to this Statute is required under 
paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise 
of jurisdiction by the Court with respect to the crime in question. The accepting State 
shall cooperate with the Court without any delay or exception in accordance with Part 9.

Sudanese President Omar el-Bashir maintains that Sudanese nationals should not be subject to trial by the ICC since the Sudan has not accepted the ICC treaty. Under the Vienna Convention on the Law of Treaties, a state is not obligated to abide by a treaty unless it accepts and becomes party to that treaty. President el-Bashir asserts that the crimes of Sudanese nationals should be brought to justice within the territorial jurisdiction of the Sudan. The perpetrators were not nationals of countries party to the ICC treaty nor were the crimes committed within the boundaries of any country party to the ICC treaty. The crimes were conducted by Sudanese nationals within the territorial boundaries of the Sudan.

The ICC, in exercising its jurisdiction over the Sudan, would seemingly appear to violate the Law of Treaties, and hence, violate international law and the principle of pacta sunt servanda, “pacts must be respected.” However, one may argue that some crimes are so egregious and heinous that no nation or individual may derogate from a preemptory international norm and subsequent accountability to the international community. Can the world trust the Sudanese government to hold accountable top government officials and government-protected individuals within Sudanese courts? The answer moves the Sudanese civil war, once termed the “forgotten war of Africa,” to the forefront of a contentious legal and political debate involving implicit customary international law, explicit treaty-based international law, and the rights of a sovereign nation.

Is there an implicit consent of all countries in the world to accept jurisdiction of the ICC for certain crimes and to abide by the rulings of the ICC? Does the recent Security Council’s vote establish precedent of compulsory laws and ICC jurisdiction governing all nations in the world, regardless of consent? Who and what defines the exact nature of the types of crimes granted universal, compulsory jurisdiction by the Court? While the Rome Statute defines genocide, crimes against humanity, war crimes, and aggression as crimes under the jurisdiction of the ICC, it fails to define or to provide guidance on the definition of “aggression.” With such broad interpretive powers granted to the Court, should the ICC possess the scope of power to exercise extraterritorial jurisdiction on sovereign states, particularly given the potential for politicized prosecutions?

The United States, which strongly opposes the jurisdiction of the ICC over non-party states, recently called upon the Sudan to accept the Security Council’s ruling and hence, the ICC jurisdiction. In his daily briefing on 7 April 2005, US Department of State Spokesman Richard Boucher responded to a press inquiry about the ICC referral by replying, “I know the Sudanese Government has said various things about the accountability issue, but the simple fact is that the resolution requires all parties, all governments, to cooperate with the UN and that’s what the UN Security Council as a whole expects of the Sudanese Government. There needs to be accountability for these crimes and we all agree on that. The resolution passed because of that, even though the U.S. and a few others abstained.” So if in the future the UN Security Council passes a resolution mandating the jurisdiction of the ICC over the crimes committed by the United States, will the US comply? Or were these words of advice intended as part of a political campaign to persuade the Sudan to accept permissive jurisdiction of the Court?

Immunity Clause â€“ Paragraph 6
The second controversial inclusion in UN Security Council Resolution 1593 involved an immunity clause, known as paragraph 6. The clause was introduced as a political compromise to appease the United States which had threatened to veto the resolution. It provides immunity to nationals of countries, like the United States, not party to the ICC acting in the Sudan:

6. Decides that 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 for all
alleged acts or omissions arising out of or related to operations in Sudan established or
authorized by the Council or the African Union, unless such exclusive jurisdiction has
been expressly waived by that contributing State;

In an unexpected abstention on Resolution 1593, Brazil, a supporter of the ICC, cited concerns over the implications of this controversial immunity clause. Brazil felt the clause weakened the strength and role of the Court. The UN Ambassador from Brazil, Ronaldo Mota Sardenberg, stated, “From our point of view, this referral should not be approved at any cost.” Argentina, France, and Greece, while voting in support of the resolution, joined Brazil in expressing concerns with paragraph 6. In explanations of their votes, they expressed that the immunity clause was a necessary exemption in this situation and should not be treated as precedent for the future.

What’s Next?
Invariably, no international court will find the initial cases to be easy to administer, monitor, and adjudicate. To complicate matters, the fledgling ICC finds itself challenged by the UN Security Council to assert its authority, yet in doing so, the Court risks injuring global confidence in a fragile judicial framework. On one hand, the Court seeks to impose justice for crimes committed by those hiding behind sovereign immunity. On the other hand, the Court is acting as a “supranation” pursuant to superior orders defined and imposed by a few nations on the global community. Does this approach complement national sovereignty and provide for independent international justice, or does it create powers for an unaccountable prosecutor?

The humanitarian crisis in Darfur continues. Nearly 1.5 million people remain internally displaced and another 200,000 refugees are living over the border in Chad.

On Friday, the World Food Program announced it must cut the food rations of one million people in Darfur due to drastic shortages in funds. The warning comes three days before an international aid conference.

On April 11-12, Norway is hosting the Oslo’s Donor Conference on Sudan. The focus of the conference is to identify efforts and funding sources to reinforce the peace efforts in southern Sudan. Sixty countries and international aid organizations will be in attendance including UNHCR’s Acting High Commissioner Wendy Chamberlin. The conference comes one week before her visit to the Sudan, including a visit to Darfur on April 19-20. While Darfur is not on the Oslo agenda, a conference on the financial aid obligations to southern Sudan is certain to include discussions of assistance to Darfur. The UNHCR has been seeking $60 million for aid programs in southern Sudan and $31 million for Darfur, having received less than $7 million to accomplish its goals. US Deputy Secretary of State Robert Zoellick will be attending and is expected to announce a US commitment of $1.8 billion in aid over the next two years. Following the conference, Zoellick is scheduled to visit the Sudan to “emphasize the need for Sudanese parties to move ahead with implementation of the peace accord as well as to end the violence in Darfur.”

The ICC Prosecutor received a sealed list prepared by Commission of Inquiry on Darfur and is proceeding with establishing the admissibility of the case.

Sudan awaits the visits from the UNHCR’s Acting High Commissioner and the US Deputy Secretary of State. The Sudan has expressed interest in participating in ICC trials conducted within the Sudan. Perhaps the in-person diplomatic discussions can ease tensions while identifying the means to achieve a sense of justice, a path for reconciliation, and the road to an enduring peace in the Sudan.

Additional Resources on the Sudan

Legal Resources