Journal of International Criminal Justice Advance Access originally published online on July 6, 2005
Journal of International Criminal Justice 2005 3(3):590-599; doi:10.1093/jicj/mqi051
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Comments on the Security Council Referral of the Situation in Darfur to the ICC
* Professor of International Law, University of Florence; Honorary Professor, University of Geneva; luigi.condorelli{at}unifi.it. ** Assistant Professor of International Law, University of Florence; Ph.D., University of Rome La Sapienza; LL.M. (Harvard); annalisa.ciampi{at}unifi.it.
Recently, the United Nations (UN) Security Council (SC) decided to refer the situation in Darfur to the International Criminal Court (ICC), following the suggestion of the UN Commission of Inquiry established by the Secretary-General pursuant to SC Res. 1564 (2004). The authors discuss four main problematic issues raised by the first SC referral of a situation to the ICC. First, they emphasize that States Parties to the ICC and non-States Parties have different obligations to cooperate with the Court, irrespective of the adoption of a SC Resolution. Secondly, they discuss the question of immunity granted to nationals of non-States Parties. Thirdly, the puzzling reference contained in the SC Resolution to exemption agreements is commented upon. Finally, the paper concludes with a criticism of the lack of any measure providing for compensation to victims.
1 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General. Pursuant to SC Res. 1564, 18 September 2004. UN doc. S/2005/60, 25 January 2005, available online at http://www.un.org/News/dh/sudan/com__inq__darfur.pdf (visited 20 April 2005) (the Report).
2 SC Res. 1564 (2004), 
12 (emphasis added).
3 See the reasons stated in the Report, 10.
6 The Commission ruled out other accountability mechanisms. In particular, the Commission strongly advised against the setting up of an ad hoc International Criminal Tribunal, the expansion of the mandate of one of the existing ad hoc International Criminal Tribunals and the establishment of mixed courts. For a thorough examination of the reasons justifying the involvement of the ICC, see 571–572 of the Report.
7 The Report, 600 (emphasis added). In addition to measures that should be taken by the Security Council, the Commission recommended a number of other measures to be taken by other bodies (the Commission on Human Rights and the High Commissioner for Human Rights), the Sudanese authorities and other states (including, for the latter, the exercise of universal jurisdiction).
8 The following states are the non-permanent members of the Security Council: Algeria, Denmark, Philippines, Japan, Argentina, Greece, United Republic of Tanzania, Romania, Benin and Brazil. For the record of the meeting of the Security Council, see Press Release SC/8351, available online at http://www.un.org/documents/presssc.htm (visited 20 April 2005).
9 See the first paragraph of the Preamble, where the Security Council takes ‘note of the report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur’.
10 See 5 and 6 of the Preamble. For previous determinations that the situation in Darfur is—or continues to constitute—a threat to international peace and security, see SC Res. 1547 (2004) of 11 June 2004, SC Res. 1556 (2004) of 30 July 2004, SC Res. 1564 (2004) of 18 September 2004, SC Res. 1574 (2004) of 19 November 2004, SC Res. 1585 (2005) of 10 March 2005, SC Res. 1588 (2005) of 17 March 2005, SC Res. 1590 (2005) of 24 March 2005 and SC Res. 1591 (2005) of 29 March 2005.
11 On the conditions for the referral by the Security Council, see L. Condorelli and S. Villalpando, ‘Referral and Deferral by the Security Council’, in A. Cassese et al. (eds), The Rome Statute for an International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 627–664, at 630 ff.
12 On the meaning to be attributed to this reference, see infra.
13 See Arts 12 (3) and 87(5) of the Rome Statute.
14 See Art. 87(5) of the Rome Statute.
15 For this view, see A. Ciampi, ‘The Obligation to Cooperate’, in A. Cassese et al. (eds), The Rome Statute for an International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 1607–1638, at 1611.
16 See Art. 115(a) and (b), respectively (emphasis added). Moreover, the Court ‘may receive and utilize, as additional funds, voluntary contributions’ (Art. 116).
17 Article 13 of the Negotiated Relationship Agreement between the ICC and the United Nations of 4 October 2004, entered into force on the same date, available online at http://www.icc-cpi.int/library/asp/ICC-ASP-3-Res1__English.pdf) (visited 20 April 2005).
18 Statement of the US representative speaking in explanation of her country's position after the vote on SC Res. 1593 (2005), supra note 8.
19 The quote is taken from the Report, 571.
20 For the mandate of UNMIS, see 4(a)–(d) of SC Res. 1590 (2005).
21 Because the crimes were allegedly committed in the territory of a State Party or the situation was referred to the Prosecutor by the Security Council. See Art. 12 of the Rome Statute in connection with Art. 13.
22 For a summary of these reasons, see the statement of the US representative speaking in explanation of position after the vote on SC Res. 1593 (2005), supra note 8.
23 This Resolution authorized Member States to establish a multinational force in Liberia and envisaged the subsequent deployment of a UN stabilization force in Liberia. To this end, 7 of SC Res. 1497 (2003) provided that ‘current or former officials or personnel from a contributing State, 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 the Multinational Force or United Nations stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived by that contributing State’.
25 For the problems raised by these Resolutions and their implications, see C. Stahn, ‘The Ambiguities of Security Council Resolution 1422 (2002)’, 14 European Journal of International Law (2003) 85–104; S. Zappalà, ‘The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements’, 1 Journal of International Criminal Justice (2003) 114–134, at 114.
26 In the absence of an agreement among the members of the Security Council, the draft resolution proposed by the United States, which would have extended the deferral for a second time, was withdrawn in order ‘to avoid a prolonged and divisive debate’. See the statement of the US Deputy Representative to the UN Ambassador, James B. Cunningham, released on 23 June 2004, available online at http://www.un.int/usa/04__111.htm (visited 20 April 2005).
27 See supra note 13 and corresponding text.
28 Given their identical formulation on this point, most of the critique developed in the text in relation to SC Res. 1593 (2005), 6 could be extended to SC Res. 1497 (2003), 7. A part of the argument would also apply in relation to SC Res. 1422 (2002) and SC Res. 1487 (2003) (see supra note 25).
29 This critique would also apply more generally to SC Res. 1422 (2002) and SC Res. 1497 (2003)—a point which cannot be developed here.
30 This is a view which is generally shared. See Condorelli and Villalpando, supra note 10.
31 Article 2(3), supra note 17.
33 A view to this effect was apparently advanced by the French representative, M. Jean-Marc de la Sablière: ‘Je dois que l’immunité de juridiction prévue par le texte que nous venons d’adopter ne saurait évidemment aller à l’encontre d’autres obligations internationales des Etats et sera sujette, le cas échéant, à l’interprétation des tribunaux de mon pays’, available online at http://www.diplomatie.gouv.fr/actu/bulletin.asp?liste=20050401.html#Chapitre4 (visited 20 April 2005).
34 Among measures recommended in the Report—not specifically to the Security Council, but to the Sudanese authorities, eventually ‘with the help of the international community’—was that action be taken to create ‘a truth and reconciliation commission once peace is established in Darfur’. In this respect, the Security Council merely encourages ‘the creation of institutions, involving all sectors of Sudanese society’ in SC Res. 1593 (2005), 5.
35 In implementation of this provision, a Victims Trust Fund was actually established. It is administered by the Registrar and supervised by a Board of Directors. See http://www.icc-cpi.int/vtf.html (visited 20 April 2005).
36 See ‘Béchir jure fidélité à son peuple’, Le Soir, 5 April 2005.
37 On the UNCC, see D. Campanelli, ‘The United Nations Compensation Commission (UNCC): Reflections on its Judicial Character’, 4 The Law and Practice of International Courts and Tribunals (2005), 107–139.