Written by: Ammar Mahmoud. Ammar Mohamed Mahmoud is a First Secretary in the Embassy of the Republic of the Sudan in Abuja, Nigeria. Prior to his current position, Mr. Mahmoud had been serving in the Department of International Law and Treaties at the Ministry of Foreign Affairs of Sudan.

As Sudan is not a party to Rome Statute^[1], the Security Council used Resolution 1593, which adopted under Chapter VII of the Charter on March 31, 2005, to trigger ICC jurisdiction in Darfur stating that 

“The Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, (…), urges all States and concerned regional and other international organizations to cooperate fully.”^[2]

Following the referral, the ICC Prosecutor received the document archive of the International Commission of Inquiry on Darfur along with the Commission’s sealed list of individuals possibly responsible for the violations in Darfur, though the “list reflects the conclusions of the commission and are not binding to him.”^[3]

On 1 June 2005 the Prosecutor determined that there was a reasonable basis to initiate an investigation regarding Darfur since 1 July 2002.^[4] Seven cases have been open by the office of the prosecution related to Darfur,^[5] including three high ranking central Government officials (among them president Al Bashir), one alleged Janjaweed leader, and three rebel commanders. “Sudan has repeatedly indicated that it will not allow any Sudanese citizen to be tried before the ICC or outside Sudan.”^[6] The Sudanese government created special courts in Darfur in order to prove its seriousness in going after the perpetrators of crimes allegedly committed in the course of Darfur’s conflict,^[7] and “the only ‘concession’ Sudan has made was allowing the ICC to visit its national courts in Darfur to assess national proceedings in relation to the alleged crimes.”^[8]

The Darfur Referral is the Security Council’s first use of its powers under Article 13(b) of the Rome Statute, and it is an application to the most important aspect of the relationship between the two institutions. The Resolution contains some points worth taking note of.

First, while the Security Council’s Resolution 1593, which referred the situation in Darfur to the ICC, aimed to trigger the Court’s jurisdiction over Darfur under Article 13 (b) of Rome Statute; it also included some limitations on the ICC jurisdiction in Darfur. The fourth preambular paragraph in the text of the resolution stated the Council was “taking note of the existence of agreements referred to in Article 98-2 of the Rome Statute”. This paragraph refers to the “United States bilateral agreements seeking to ensure the non-surrender of US personnel, including both US nationals and foreign contractors working for the United States, to the International Criminal Court.”^[9] As of April 2007, United States had concluded such agreements with over 100 nations. These immunity agreements are very controversial, and they had been opposed by the European Parliament which considered that ratifying such an agreement is incompatible with membership of the EU.^[10] Regrettably, the resolution provides some legitimacy to these agreements which intended to give blanket immunity from ICC jurisdiction, the impunity that the Court had been established to combat. Moreover, these agreements seem to contradict Article 27 (2) of the statute which provides” immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”

Secondly, the Resolution explicitly excluded from the ICC jurisdiction any acts of peacekeepers in Darfur, if they sent by non-party state to Rome Statute. In operative paragraph 6 of the resolution the Council:

“Decide[ed] 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”

This paragraph of the Resolution shields from jurisdic­tion of the ICC nationals of non-party states, concurrently the resolution triggers jurisdiction over Darfur, Sudan, which is a non- state party itself. A prominent international criminal lawyer is quite doubtful that “whatever the legality of paragraph 6 of the resolution, it is most certainly incompatible with the Rome Statute.”^[11]

Lastly, operative paragraph 7 of the Resolution provides no funding related to investigations or prosecutions in connection with Darfur referral shall be borne by the United Nations, and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily. The consistency of this paragraph with the Rome Statute is disputable as Article 115 (b) of the Statute indicates that UN should pay for referrals that made to the ICC by the Security Council. It states “funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council.” Therefore, the Security Council’s referrals should be financed by the council itself and not by ICC state parties as stipulated in resolution 1593.