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Journal of International Criminal Justice 2008 6(5):871-884; doi:10.1093/jicj/mqn067
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© Oxford University Press, 2008, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org

Editorial Comments

Obtaining Cooperation from Sudan — Where is the Law?

Göran Sluiter*

* Professor of International Law of Criminal Procedure, University of Amsterdam and judge at the district courts of Utrecht and The Hague; Member of the Editorial Committee of this Journal. [g.k.sluiter{at}uva.nl]


  Abstract

While much indignation has been expressed in respect of Sudan's almost total lack of cooperation with the International Criminal Court (ICC) in the Darfur prosecution, a legal analysis has yet to be conducted. It is submitted that both the procedural and substantive aspects of the cooperation law pertaining to Sudan are problematic. The ICC Prosecutor has waited too long with the application for a judicial finding of non-compliance and has thereby unnecessarily jeopardized the enforcement process. Regarding the substantive cooperation law, to date, neither the Prosecutor nor any other ICC organ has shed light on three vital issues for the determination that Sudan has violated its cooperation duties. First, what is the applicable cooperation law? Second, does Security Council Resolution 1593 (2005) amount to an unacceptable discriminatory investigation and prosecution, invalidating the referral? Third, if one applies the ICC Statute to Sudan, how effective is this instrument in relation to an uncooperative state non-party?


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