Darfur and the International Criminal Court: Some Jurisdictional Issues

The International Criminal Court (ICC), dubbed by one leading commentator, William Schabas, as ‘arguably the most significant international organization to be created since the United Nations’, has ushered in a new era in the protection of human rights. The Rome Statute of the ICC puts in place individual criminal liability for those responsible for the most serious human rights violations, and creates an institution – on a permanent basis – to ensure the punishment of such individuals. The Court, no doubt, will serve as a painful reminder of the atrocities of the past century and the level to which humanity can stoop. International criminal law, if nothing else, is testimony to the fact that we appear doomed to repeat history. As Judge Richard Goldstone, former Chief Prosecutor at the Hague Tribunals has wryly commented, the hope of “never again” so often becomes the reality of again and again’. It is a sad reality that Africa is a continent which is home to many of the international human rights atrocities, both past and continuing, which haunt humanity in what appears to be repeating cycles. At the same time the International Criminal Court, with independent prosecutors putting tyrants and torturers in the dock before independent judges, reflects a post-war human rights aspiration come true, and one, which certainly signals hope for the African region.

Since its coming into effect in 2002 the International Criminal Court has been actively involved on the African continent. Africa both historically and contemporarily has been home to many conflicts. It has been and still is an egregious violator of human rights, which in effect has led to many commentators and scholars to regard it as a “hopeless continent”. Since the Rwanda genocide of 1994, numerous conflicts have arisen on the African continent with enormous negative implications to the continent’s attitude and commitment towards human rights protection. Sudan is one such country that has been on the limelight for quite sometime now especially since the atrocities of 2003-4. On 14 July 2008, after much advance publicity and fanfare, the prosecutor of the ICC applied for a warrant of arrest for the President of Sudan, Ommar Hassan Ahmad al-Bashir, on charges that include genocide, crimes against humanity and war crimes. Al-Bashir’s indictment by the Court has been received with mixed reactions around the world. Many have expressed fear that the move might have serious ramifications for the peace process in Darfur, and question its wisdom. Others, on the other hand, believe that this is indeed a good move that will render justice to the victims of the atrocities in Darfur, enhance the credibility of international criminal justice, and force the Sudanese authorities to make genuine progress in the peace process. Another important issue that has arisen is the jurisdictional aspect of the ICC’s involvement in Sudan in view of the fact that Sudan is not a party to the Rome Statute of the ICC. It is this last aspect that is the subject matter this article.

As noted above, Sudan is not a State Party to the Rome Statute of the ICC because it has not ratified the Statute. But does that mean that the ICC does not have jurisdiction over Sudan and other countries that are not State Parties to the Rome Treaty? In normal circumstances, the ICC cannot exercise jurisdiction over non-state parties like Sudan that have not ratified its statute. It is true that Article 4 of the Rome Statute gives the court an international legal personality with the authority to exercise its functions and powers on the territory of any State Party, or by special agreement, on the territory of any other state. But Articles 34 –37 of the 1969 Vienna Convention on the Law of Treaties (VCLT) exempt third parties (non-signatory parties) from any obligations or rights arising from treaties that they have not ratified, unless they expressly accept this obligation in writing. Article 35 of the Convention states this explicitly, even if the parties to the treaty intended some of its provisions to apply to third parties.

However, given Sudan’s membership to the United Nations (UN), if consideration is taken into account of the Charter of the United Nations and the close relationship between the ICC and the UN, particularly through the October 2004 agreement, it can be argued that the Court can directly exercise its jurisdiction over Sudan if the UN Security Council refers Sudan to it. There are three trigger mechanisms for the referral of situations and cases to the ICC according to the Rome Statute. One of these is the Security Council referral. Article 13 (b) of the Rome Statute entrusts the Security Council of the UN with the power to refer to the Prosecutor of the ICC any crimes falling under the Court’s jurisdiction, regardless of the status of the country that has jurisdiction over that crime. This means that the Council can refer situations arising in any country, regardless of that country’s membership of the ICC. The Council shall do this by passing a resolution under Chapter VII of the UN Charter.

It was indeed the Security Council, acting under this provision of the Rome Statute, which referred the situation of Sudan to the Prosecutor of the ICC in its Resolution 1593 (2005) of 31 March 2005. But given that the Security Council was only able to refer the situation in Sudan to the ICC thanks to this provision of the Rome Statute to which Sudan is not a party, the question may arise of why Sudan should be bound by that referral.

This makes it important to establish whether there is a binding link, even indirect, between Sudan and this provision of the Rome Statute. For that purpose, it is worth noting that Article 2 of the Rome Statute stipulates that ‘the Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties’. On 9 December 2003, the 72nd plenary meeting of the 58th session of the General Assembly of the UN, where Sudan is represented, passed Resolution 58/79 expressing its appreciation for the UN Secretary-General ‘for providing effective and efficient assistance in the establishment of the International Criminal Court’. It then invited the Secretary-General to ‘take steps to conclude a relationship agreement between the United Nations and the International Criminal Court and to submit the negotiated draft agreement to the General Assembly for approval’.

The President of the ICC, Philippe Kirsch, and the then Secretary-General of the UN, Kofi Annan, each representing his institution, finally signed this agreement on 4 October 2004. This came after both the Assembly of States Parties of the ICC and the General Assembly of the UN had approved the draft agreement, respectively on 7 and 13 September 2004. Article 2(3) of this Agreement commits both the UN and the ICC to respect each other’s status and mandate. One could therefore argue that all member states of the UN are bound by this agreement, which obligates them to respect the provisions of the Rome Statute. While this Agreement does not establish a direct ICC jurisdiction over UN members, it implies the acceptance, by the UN, of the provisions of Article 13(2) of the Rome Statute. Should the UN Security Council therefore refer to the ICC the situation arising from events in a member state, such as Sudan, in accordance with this prerogative it has accepted in the Rome Statute, that state has to respect and abide by that referral because of its membership of the UN.

Thus, one could argue that the Prosecutor of the ICC acted lawfully and in accordance with his powers within the Rome Statute when he initiated investigations into alleged crimes in Sudan after the UN Security Council referred the situation of Sudan to the Court. Sudan may not have any convincing argument to contest the legality of the process initiated by the Prosecutor. Of course one can criticise the ICC for having such a discriminatory provision in the Rome Statute, given that it exempts the three veto wielding powers on the Security Council that have not accepted the Statute (China, Russia and the US) from any possible referral to the ICC unless they accept this, which is inconceivable. But this is a totally different matter that can only be addressed through an amendment of the Rome Statute.