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II. Darfur, the Security Council, and the International Criminal Court

Published online by Cambridge University Press:  17 January 2008

Matthew Happold
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Extract

On 31 March 2005 the Security Council made its first referral to the International Criminal Council (‘the ICC’). The Council referred the situation in Darfur to the Prosecutor of the ICC. Given the USA's stated opposition to the ICC, that there was a referral at all could be seen as a triumph for the Court.s supporters. However, Security Council Resolution 1593 has a number of problematic features. Its genesis was long and convoluted, and it has been seen by some as a substitute for effective action by the United Nations to end the humanitarian crisis and systematic atrocities being committed in Darfur.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 55 , Issue 1 , January 2006 , pp. 226 - 236
Copyright
Copyright © British Institute of International and Comparative Law 2006

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References

1 See Waal, Alex deFamine that Kills: Darfur, Sudan (OUP Oxford 2005) xiv; andGoogle ScholarPrunier, GérardDarfur: The Ambiguous Genocide (C Hurst and Co London 2005) 4–8.Google Scholar

2 Prunier (n 1) 99–100. Footnotes and paragraph break omitted.

3 House of Commons Library Research Paper 04/51 ‘Sudan: conflict in Darfur’ (23 June 2004) 11. The number of deaths is now believed to be much higher: see Russell Smith ‘How many have died in Darfur?’ BBC News (16 Feb 2005) <http://news.bbc.co.uk/1/hi/world/africa/4268733.stm> (6 Oct 2005).

4 See Amnesty International The Looming Crisis in Darfur (July 2003) and International Crisis Group Sudan's Other Wars (June 2003).

5 See Prunier (n 1) 125–8, for an analysis of media responses to the crisis.

6 Prior to that the African Union had taken the lead.

7 Statement of the President of the Security Council (26 May 2004) UN Doc S/PRST/2004/18*. The statement followed a report of the UN High Commission for Human Rights ‘Situation of human rights in the Darfur region of the Sudan’, UN Doc. E/CN.4/2005/3, 7 May 2004, in which the High Commissioner reported that massive and gross human rights violations were being committed in Darfur, possibly amounting to war crimes and crimes against humanity.

8 UNSC Res 1556 (2004) UN Doc S/RES/1556 para 6.

9 UNSC Res 1564 (2004) UN Doc S/RES/1564 para 1.

10 ibid para 12.

11 The US Administration, in Sept 2004, had characterised events in Darfur as amounting to genocide.

12 See, eg the contributions to the symposium ‘The Commission of Inquiry on Darfur and its Follow-up: A Critical View’ (2005) 3 JICJ 539 et seq.

13 Report of the International Commission of Inquiry on Darfur Pursuant to Security Council Resolution 1564 of 18 Sept 2004 (Geneva 25 Jan 2005) paras 2–10.

14 ibid 5 para 582.

15 ibid paras 573–81.

16 ibid para 573.

17 See Evelyn Leopold ‘U.S. lobbies United Nations for new Darfur court’ Reuters AlertNet (28 Jan 2005); and Crook, John R (ed) ‘Contemporary Practice of the United States Relating to International Law’ (2005) 99 AJIL 479 501–2.Google Scholar

18 US Department of State, Daily Press Briefing (1 Feb 2005).

19 Art 11(1), Rome Statute of the International Criminal Court UN Doc A/CONF.183/9* (1998).

20 For an NGO response, see Human Rights Watch ‘US Proposal for a Darfur Tribunal: Not an Effective Option to Ensure Justice’ (15 Feb 2005).

21 The resolution was one of three Security Council resolutions concerning Darfur adopted in Mar 2005: Resolution 1590 of 24 Mar 2005, Resolution 1591 of 29 Mar 2005 and Resolution 1593 of 31 Mar 2005. Originally it had been hoped that one portmanteau resolution could be adopted but divisions in the Security Council made that impossible.

22 UNSC Res 1593 (2005) UN Doc A/RES/1593 para 1.

23 ibid, para 2.

24 Resolution 1593 was adopted by 11 votes to none, with four abstentions (Algeria, Brazil, China, and the USA).

25 Art 34 of the Vienna Convention on the Law of Treaties 1155 UNTS 331 (1969).

26 Sudan signed the Rome Statute on 8 Sept 2000 but to date has not ratified it.

27 Security Council, Minutes, 5158th Meeting (31 Mar 2005) UN Doc S/PV.5158, 4.

28 (n 22) para 6.

29 A parallel can be made with Uganda's attempt to refer ‘the situation of the Lord's Resistance Army’ to the Court under Arts 13(a) and 14 of the Rome Statute The Prosecutor simply interpreted the reference as being a referral of the situation in northern Uganda, covering both parties (the Government of Uganda and the LRA) to the conflict. Indeed, it appears that the Government of Uganda was aware of and accepted this: see Akhavan, Payam ‘The Lord's Resistance Army Case: Uganda's Submission of the First State Referral to the International Criminal Court’ (2005) 99 AJIL 403 411.CrossRefGoogle Scholar

30 UNSC Res 1422 (12 July 2002) UN Doc S/RES/1422 para 1. UNSC Res 1487 (12 June 2003) UN Doc S/RES/1487 para 1 is in the same terms save that the relevant 12-month period is stated as beginning on 1 July 2003.

31 UNSC Res 1422 (2002) UN Doc S/RES/1422 para 2; UNSC Res 1487 (2003) S/RES 1487 para 2. It might be noted that had a new resolution not been necessary to renew the request, it would most likely still be in existence today. Repeal of the original resolution would have required Security Council members to adopt a new resolution doing so and adoption of the new resolution would have been subject to the veto.

32 UNSC Res 1497 (1 Aug 2003) UN Doc S/RES 1497 para 7.

33 See, eg Jain, Neha ‘A Separate Law for Peacekeepers: The Clash between the Security Council and the International Criminal Court’ (2005) 16 EJIL 239.CrossRefGoogle ScholarSee also Cryer, Robert and White, Nigel D ‘The Security Council and the International Criminal Court: Who's Feeling Threatened?’ (2002) 8 Yearbook of International Peacekeeping 141 and Carsten Stahn ‘The Ambiguities of Security Council Resolution 1422 (2002)’ (2003) 14 EJIL 85.Google Scholar

34 See the statements made by the representatives of Canada, New Zealand, Costa Rica, Liechtenstein, Brazil, Mexico, and Germany, UN Docs S/PV4568 and S/PV4568 (Resumption 1) (10 July 2002).

35 See Art 4(1) of the Rome Statute (1998) 9 EJIL 2, 13.

36 Sarooshi, Dan ‘The Peace and Justice Paradox: The International Criminal Court and the UN Security Council’, in Dominic, McGoldrick, Peter, Rowe, and Eric, Donnelly (eds) The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing Oxford 2004) 119.Google Scholar

37 Cassese, Antonio ‘On the Current Trend towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 EJIL 2, 13. Cassese was referring to the International Criminal Tribunal for the former Yugoslavia but his comments are equally, if not more, apposite with regard to the ICC.CrossRefGoogle Scholar

38 It has, of course, also been argued that the various resolutions are ultra vires Chapter VII of the Charter. Such arguments are, however, more theoretical than real. Security Council resolutions are prima facie lawful (Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151 at 168), with the Council being the initial judge of the legality of its own acts (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, 22, and there is no body qualified to make a definitive judgement on their legality.

39 See Brownlie, IanPrinciples of Public International Law (6th edn OUP Oxford 2003) 203–5.Google Scholar

40 (n 27) 11.

41 Although arguments can be made concerning the relationship between the Security Council's Chapter VII powers and norms of jus cogens. For discussion of the issue, see Alexander Orakhelashvili ‘The Impact of Peremptory Norms of the Interpretation and Application of United nations Security Council Resolutions’ (2005) 16 EJIL 59.

42 (n 22 para 7.

43 Art 17, UN Charter.

44 (n 22) para 8.

45 See Art 40(1) (‘The judges shall be independent in the performance of their functions’) and 42(1) (‘The Office of the Prosecutor shall act independently as a separate organ of the Court’).

46 (n 3) 11.

47 Art 31 of the UN Charter.

48 (n 27) 12.

49 ICC press release, ‘Prosecutor receives list prepared by Comission [sic] of Inquiry on Darfur’ (5 Apr 2005).

50 ICC press release, ‘List of Names of Suspects in Darfur opened by the ICC OTP’ (11 Apr 2005).

51 Some 50 independent experts were interviewed by the OTP: see ICC press release ‘The Prosecutor of the ICC opens investigation in Darfur’ (6 June 2005).

52 ICC press release, ibid.

53 Report of the Prosecutor of the International Criminal Court, Mr Luis Moreno Ocampo, to the Security Council pursuant to UNSCR 1593 (2005) (29 June 2005).