UN Commission’s Report on Violations of International Humanitarian Law in Darfur
Security Council Referral to the International Criminal Court By Frederic L. Kirgis
April 5, 2005
On March 31, 2005, the United Nations Security Council adopted Resolution 1593, in which it decided to refer the situation in Darfur since July 1, 2002, to the Prosecutor of the International Criminal Court (ICC). The Security Council acted under Chapter VII of the U.N. Charter, which gives the Council the authority to deal with threats to the peace, breaches of the peace or acts of aggression. Article 13(b) of the ICC Statute authorizes, but does not require, the ICC to exercise its jurisdiction if the Security Council, acting under Chapter VII, refers to it a situation in which one or more of the crimes covered by its Statute appears to have been committed. Crimes covered by the Statute include genocide, crimes against humanity and war crimes.
This is the first time the Security Council has referred a situation to the ICC. Initially, the United States resisted doing so, but it ultimately abstained from voting on the resolution when paragraph 6 was inserted. Under longstanding practice in the Council, an abstention by a permanent member of the Security Council does not amount to a veto.
In paragraph 6, the Security Council “Decides that [persons] 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.” Article 16 of the ICC Statute bars investigation or prosecution under the Statute for 12 months after the Security Council, in a resolution adopted under Chapter VII of the U.N. Charter, “has requested the Court to that effect; that request may be renewed by the Council under the same conditions.” In the preamble to Resolution 1593, the Security Council “recalled” article 16 of the ICC Statute, apparently relying on it in paragraph 6.
Resolution 1593 did not literally “request” the Court to refrain from exercising its jurisdiction; instead, the Security Council “decided” that the persons it designated would be subject to the exclusive jurisdiction of their contributing states. Apparently, the Security Council, at the behest of the United States, was taking no chances. In the current situation, the Council seems not only to have intended to make an Article 16 “request” in emphatic terms, but also – by making a “decision” in paragraph 6 – to pre-empt any U.N. member states that might try to refer the Darfur situation to the ICC under Articles 12-14 of the ICC Statute (a possible referral that, if it were properly done, could lead to ICC jurisdiction over U.S. nationals or other persons covered by paragraph 6). Security Council decisions under Chapter VII are binding on all U.N. member states. Under Article 103 of the U.N. Charter, if there is a conflict between the obligations of U.N. member states under the Charter and their obligations under any other international agreement (which would include the ICC Statute), their obligations under the Charter prevail.
About the Author:
Frederic L. Kirgis is Law Alumni Professor at Washington and Lee University School of Law. He has written books and articles on international law, and is an honorary editor of the American Journal of International Law. The author is grateful to José Alvarez for his extremely helpful comments on a draft of this Insight. Any error or omissions are the author’s own.
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