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United Nations Security Council Resolution 1593 (2005) on referring the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court, 31st March 2005 (UN Doc S/RES/1593 (2005)), OXIO 241

United Nations Security Council [UNSC]; International Criminal Court [ICC]; African Union

Subject(s):
International courts and tribunals, jurisdiction — Resolutions of international organizations

Core Issues

1. The legal issues raised by United Nations Security Council Resolution 1593 (2005) on referring the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court.

2. Determination of a threat to international peace and security and referral by the United Nations Security Council (UNSC) under Article 13(b) of the Rome Statute of the International Criminal Court.

3. The UNSC’s restriction of the scope of the International Criminal Court’s (ICC) investigations by excluding states which contributed peacekeepers from its jurisdiction, and subsequent criticisms of this action.

4. Expenses resulting from a criminal investigation initiated as a result of a UNSC resolution.

5. Relationship between the UNSC and the ICC.

6. Discretion of the ICC’s Office of the Prosecutor regarding UNSC referrals.

This headnote pertains to: United Nations Security Council Resolution 1593 (2005) on referring the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court, an act of an international organization. Jump to full text

Background

United Nations Security Council Resolution 1593 (2005) on referring the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court (‘Resolution’) was adopted by the United Nations Security Council (UNSC) on 31 March 2005. The Resolution is a unilateral act of the UNSC. The UNSC is empowered under Chapter VII of the United Nations Charter (‘Chapter VII’) to determine that a situation is a threat to international peace and security and to decide on the appropriate measures to maintain or restore international peace and security (Article 39 UN Charter).

According to the Rome Statute of the International Criminal Court (‘Rome Statute’), the International Criminal Court (ICC or ‘Court’) may exercise jurisdiction with respect to an ICC crime if the UNSC, acting under Chapter VII, refers a situation to the ICC Prosecutor in which one or more ICC crimes appear to have been committed (Article 13(b) Rome Statute). The UNSC referral mechanism is one of the novel aspects of the ICC jurisdictional regime, which makes it interesting for the study of the law of international organizations. The UNSC, acting pursuant to its Chapter VII powers, can extend the jurisdiction of the Court to situations involving states which are not parties to the Rome Statute, by reason of Article 13(b).

On 18 September 2004, the UNSC requested the United Nations (UN) Secretary-General to establish an international commission of inquiry (‘Commission’) ‘to investigate reports of violations of international humanitarian and human rights law in Darfur’ (UNSC Resolution 1564, para 12). The Commission found that many of the alleged crimes committed in Darfur met all the threshold requirements in the Rome Statute, and strongly recommended that the UNSC refer the situation in Darfur to the ICC (Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, para 647 (‘Commission Report’)). At the time of the adoption of the Resolution, the UNSC took note of the Commission Report. [ref 1]

The Resolution is an interesting act of an international organization because it was the first time that the UNSC referred a situation to the ICC. Hence, it marked an important development in UNSC practice and in the jurisprudence of the ICC. The UNSC determined that the situation in Sudan constituted a threat to international peace and security, and decided to refer the situation that had existed in Darfur since 1 July 2002 to the ICC Prosecutor. [para 1]

Summary

On 31 March 2005, the UNSC adopted the Resolution by a vote of eleven in favour and four abstentions—Algeria, Brazil, China and USA (United Nations Security Council 5158th meeting, Verbatim Record (‘UNSC 5158’), page 2). The UNSC, determining that the situation in Sudan was a threat to international peace and security, triggered action under Chapter VII. [ref 2 and ref 3] The UNSC decided to ‘refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court’. [para 1]

The UNSC decided 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 the resolution’. [para 2] At the same time, the UNSC urged all other states to cooperate with the Court. [para 2]

Significantly, the UNSC further decided that states contributing peacekeepers, and which are not States Parties to the Rome Statute, shall have exclusive jurisdiction over all acts and omissions of their ‘nationals, current or former officials[,] or personnel’ that arose in relation to UNSC or African Union operations in Sudan, except if the contributing state expressly waives such exclusive jurisdiction. [para 6] Notably, States Parties to the Rome Statute accepted the Court’s jurisdiction as regards conduct which takes place on their territory or by their nationals (Article 12(2) Rome Statute).

Lastly, the Resolution asserted that the UN shall not bear any of the expenses, such as expenses pertaining to investigations and prosecutions, incurred as a result of the referral. Rather, such expenses were to be borne by the States Parties to the Rome Statute, and those states that wished to make voluntary contributions. [para 7]

Analysis

A resolution is ‘a unilateral act, an expression of the organ adopting it’ (Thirlway 29). The legal effects of UNSC resolutions depend on the language used in a resolution, the discussions leading to its adoption, the UN Charter provisions, and ‘in general, all circumstances that might assist in determining the legal consequences’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), para 114). The same UNSC resolution may combine binding and non-binding provisions (Öberg 880).

The legal effects created by the Resolution relate to the express powers of the UNSC under Chapter VII. Under Chapter VII, the UNSC has the power to make binding decisions to maintain or restore international peace and security (Article 39 UN Charter). Significantly, Article 25 of the UN Charter provides that UN Member States ‘agree to accept and carry out the decisions of the [UNSC] in accordance with the present Charter’.

The Resolution only created obligations for the government of Sudan and the parties to the conflict. All other states, including UN Member States, were merely urged to cooperate with the Court. [para 2] Therefore, the cooperation obligations contained in the referral only concerned the state which was the subject of the referral, namely Sudan.

The Resolution brought to the fore the ICC’s weak enforcement regime. The Court has no police force and must rely on other actors for the surrender of suspects. States Parties to the Rome Statute have an obligation to ‘cooperate fully’ with the Court (Article 86 Rome Statute). Nevertheless, the Rome Statute does not provide for any sanctions if they fail to do so. The Rome Statute merely provides that the Court may make a finding of non-compliance against a State Party which has failed to comply with a cooperation request by the Court, and refer the matter to the UNSC, where the UNSC referred the matter to the Court (Article 87(7) Rome Statute). The UNSC is not bound to act on the referrals for non-compliance, and has not done so to date.

Questions were raised as to the legal effects of the UNSC’s decision to grant exclusive jurisdiction to the contributing states which are not States Parties to the Rome Statute (Trahan 449). The exclusive jurisdiction contained in the Resolution was widely criticised at the time, not least by a number of UNSC members. Most notably, Brazil, while being in favour of the referral, decided to abstain from voting. The Brazilian delegation considered that the text of the referral undermined the integrity of the Rome Statute; in particular, Brazil considered that the exclusive jurisdiction exception was ‘inconsistent with international law’ (UNSC 5158, page 11). Nevertheless, according to the United States delegation the US government decided not to oppose the referral, because the resolution provided protection to US nationals and troops from states which were not States Parties to the Rome Statute (UNSC 5158, page 3).

An international organization—such as the ICC—which enjoys independent legal personality is not bound by UNSC resolutions (Jain 253). The negotiated relationship agreement between the UN and ICC recognised that the Court was ‘established as an independent permanent institution in relationship with the [UN] system’ (Relationship Agreement between the United Nations and the International Criminal Court, preamble para 4). Consequently, the ICC is ‘not directly bound by resolutions of the Council addressed to [UN] Member States’ (Stahn 88).

The question raised was whether the ICC judges and Prosecutor were bound to respect the decision of the UNSC to exclude a category of people from its jurisdictional ambit. According to Article 13(b) of the Rome Statute, the UNSC shall only refer a ‘situation’. The UNSC’s decision to limit the Court’s jurisdiction ratione personae was inconsistent with Article 13(b) (Cryer 212). Hence, the ICC was not obliged to comply with a referral that contravenes the Rome Statute (Trahan 458). Moreover, in any case, the ICC Prosecutor enjoys a wide measure of discretion in deciding whether there is a reasonable basis to proceed with an investigation under Article 53 of the Rome Statute, including UNSC referrals (El Zeidy 1516).

The Resolution also provided that the UN was not responsible for the expenditure caused by the referral. While it was clear that the Rome Statute could not oblige the UN to bear the referral expenses, the decision was controversial not least because of the financial burden imposed on the Court’s already limited budget. Moreover, it was not clear if the UNSC had the power to refuse to contribute under the UN Charter (Cryer 206–207). According to the UN Charter, the UN General Assembly (UNGA) ‘shall consider and approve the budget of the Organization’ (Article 17(1) UN Charter). Furthermore, according to the Rome Statute, the funds of the Court shall be provided by the States Parties’ assessed contributions and by ‘the [UN], subject to the approval of the [UNGA], in particular in relation to the expenses incurred due to referrals by the [UNSC]’ (Article 115 Rome Statute). Nevertheless, according to the US delegate, any other decision with respect to the referral expenses ‘could result in our withholding funding or taking other action in response’ (UNSC 5158, page 4).

Impact

The adoption of the Resolution marked the first time that the UNSC made use of Article 13(b) of the Rome Statute. It was a turning point in the fight against impunity because it demonstrated that it was possible to bring within the ICC’s jurisdictional remit atrocity situations which would otherwise have remained completely outside the Court’s reach. Nevertheless, the prosecutions in the Darfur referral were hampered by lack of cooperation on the part of Sudan and other actors, including States Parties to the Rome Statute.

The challenges posed by the ICC’s reliance on other actors for the enforcement of its decisions were vividly demonstrated with respect to the ICC arrest warrants against Sudan’s President Al-Bashir. Importantly, the African Union decided that its Member States shall not cooperate with the Court for the arrest and surrender of Al-Bashir, pursuant to Article 98 of the Rome Statute which provides for the immunity of individuals from third states (Decision on the Meeting of the African States Parties to the Rome Statute of the International Criminal Court (ICC), para 10).

Over the years, the ICC Pre-Trial Chambers have issued non-compliance decisions against several African States Parties for failing to arrest and surrender the Sudanese president when he travelled to their territory. The immunities enjoyed by Al-Bashir as the head of a state which is not a State Party to the Rome Statute and the African Union position were cited as justification for the lack of cooperation (Situation in Darfur, Sudan, 13 December 2011, para 8; Situation in Darfur, Sudan, 9 April 2014, para 19).

The States Parties to the Rome Statute could not refuse to hand over suspects because of immunity’ (Article 27(2) Rome Statute). Nevertheless, the referred state, Sudan, was not a State Party to the Rome Statute. The question which arose was whether the referral resolution ‘puts Sudan in an analogous position to a party to the [Rome] Statute’ whereby the Rome Statute provisions, including Article 27, were binding on Sudan (Akande 342).

On 26 February 2011, the UNSC referred a situation to the ICC for a second time, this time in respect of Libya (United Nations Security Council Resolution 1970 (‘Resolution 1970’), para 4). Resolution 1970 replicated the exclusive jurisdiction and referral expenses provisions of the Resolution (Resolution 1970, paras 6 and 8). The second referral arguably demonstrated the precedential value of the Resolution, as regards the scope and legal effects of UNSC referral resolutions. However, it remains to be seen whether these two provisions have become standard practice in the context of UNSC referrals.

As regards the first two referrals, the ICC judges and Prosecutor did not challenge the exclusive jurisdiction provisions contained in the resolutions. It appeared that such an issue would not arise in the abstract; rather, an assessment as to whether the ICC would deem itself to be bound by the exclusive jurisdiction would remain theoretical until a concrete case came before the Court. The heavy financial burden of referrals imposed on the ICC as a result of the referrals presented a more pressing matter. During an open debate in the UNSC on the relationship between the UNSC and the ICC, the former ICC President, Judge Sang-Hyun Song, stated ‘it will be difficult to sustain a system’ in which the referral expenses burden exclusively the States Parties to the Rome Statute (Judge Sang-Hyun Song, President of the International Criminal Court: Remarks at United Nations Security Council Open Debate “Peace and Justice, with a Special Focus on the Role of the International Criminal Court, page 4).

Further Analysis and Relevant Materials

Materials Cited

Reporter(s): Demetra Loizou

Source text

Original Source PDF

The Security Council,

Taking note of the report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur (S/2005/60),

Recalling article 16 of the Rome Statute under which no investigation or prosecution may be commenced or proceeded with by the International Criminal Court for a period of 12 months after a Security Council request to that effect,

Also recalling articles 75 and 79 of the Rome Statute and encouraging States to contribute to the ICC Trust Fund for Victims,

Taking note of the existence of agreements referred to in Article 98-2 of the Rome Statute,

Determining that the situation in Sudan continues to constitute a threat to international peace and security,

Acting under Chapter VII of the Charter of the United Nations,

1.  Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court;

2.  Decides 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, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

3.  Invites the Court and the African Union to discuss practical arrangements that will facilitate the work of the Prosecutor and of the Court, including the possibility of conducting proceedings in the region, which would contribute to regional efforts in the fight against impunity;

4.  Also encourages the Court, as appropriate and in accordance with the Rome Statute, to support international cooperation with domestic efforts to promote the rule of law, protect human rights and combat impunity in Darfur;

5.  Also emphasizes the need to promote healing and reconciliation and encourages in this respect the creation of institutions, involving all sectors of Sudanese society, such as truth and/or reconciliation commissions, in order to complement judicial processes and thereby reinforce the efforts to restore long-lasting peace, with African Union and international support as necessary;

6.  Decides 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;

7.  Recognizes that none of the expenses incurred in connection with the referral including expenses related to investigations or prosecutions in connection with that 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;

8.  Invites the Prosecutor to address the Council within three months of the date of adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;

9.  Decides to remain seized of the matter.