Sudan Questions the ICC's Jurisdiction
According to this Reuters Article from last Thursday, Sudan is questioning the International Criminal Court’s jurisdiction over the alleged cases of genocide, crimes against humanity and war crimes (See Art. 5 et seq. ICC Statute).
Sudan’s Justice Minister Mohammed al-Mardi said that:
‘If they are here to discuss the progress of trials or the role of national justice then we are ready to give them whatever information they are looking for (…) but if the matter is about investigations, then they (...) don’t have the jurisdiction.’
This statement followed a report given by ICC chief prosecutor Luis Moreno Ocampo to the UN Security Council on Wednesday saying that the ICC’s investigation has documented thousands of killings of civilians, large scale massacres, and hundreds of rapes.
The argumentation of Sudan seems to be that Sudan is investigating and prosecuting all crimes that probably happened in Darfur, and that therefore the ICC has no jurisdiction.
In this case, the ICC’s chief prosecutor started his investigations in Darfur under Security Council Resolution 1593 (2005) referring the situation in Darfur to the Court, a possibility of inducing proceedings provided by Art. 13 b) ICC-Statute.
According to Art. 17, however, the ICC shall determine that a case is inadmissible where:
‘(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.’
The principle of complementarity expressed in a) is obviously the norm al-Mardi is referring to.
Considering Sudan’s argumentation and said norms of the ICC Statute, there seem to be different legal questions under the Rome Statute that should be raised here. Before the questions can be addressed, however, it has to be said that Sudan is obliged to cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to the Security Council Resolution, so that Sudan has no argument if the Rome Statute allows for investigations by the court.
First of all, the question arises whether Art. 17 refers also to the admissibility of investigations by the prosecutor. While Art. 13 refers to the exercise of jurisdiction by the Court, Art. 17 clearly addresses situations where a case is inadmissible. According to Art. 53, however, the prosecutor, in deciding to initiate proceedings, must also consider whether the case is admissible according to Art. 17. So Art. 17 plays a role also in the beginning of an investigation. however, according to Art. 53, it is the prosecutor who decides upon such investigations, not Sudan.
The second question is whether Art. 17 applies to cases where the Security Council referred a situation to the ICC. Under the wording of the Arts. 13 and 17, it seems clear that Art. 13 - the courts exercise of jurisdiction - and Art. 17 - the admissibility of a case, speak of different questions, and since there is no special limitation, Art. 17 is applicable to all cases of Art. 13. One could argue, however, that in cases where the Security Council under Chapter VII of the UN Charter refers a situation to the ICC, the question under Art. 17 if the concerned state is willing and able to prosecute has to be denied in any case. Would there otherwise be a threat to the peace or breach of the peace allowing the Security Council to act and to refer the situation to the court?
The third question is, if Art. 17 is fully applicable also in cases where a situation is referred to the Court by the Security Council, does the Security Council’s Resolution order the Court to investigate, giving it exclusive jurisdiction whether national courts are acting or not? It seems clear that the Security Council has the power to limit the states’ jurisdiction, thus going further than even the Rome-Statute does, making the ICC some kind of special tribunal. I can however not find any special passage clearly limiting Sudan’s jurisdiction, or in any other manner derogating from the principle of complementarity.
The fourth question then would be whether the Sudan really is willing and able to investigate and prosecute all crimes committed in Darfur, which can be doubted seeing the Report by Mr Ocampo and a Background Paper by Human Rights Watch, accusing Sudans Special Criminal Court of failing to accomplish its mission of prosecuting war crimes.
Sudan’s Justice Minister Mohammed al-Mardi said that:
‘If they are here to discuss the progress of trials or the role of national justice then we are ready to give them whatever information they are looking for (…) but if the matter is about investigations, then they (...) don’t have the jurisdiction.’
This statement followed a report given by ICC chief prosecutor Luis Moreno Ocampo to the UN Security Council on Wednesday saying that the ICC’s investigation has documented thousands of killings of civilians, large scale massacres, and hundreds of rapes.
The argumentation of Sudan seems to be that Sudan is investigating and prosecuting all crimes that probably happened in Darfur, and that therefore the ICC has no jurisdiction.
In this case, the ICC’s chief prosecutor started his investigations in Darfur under Security Council Resolution 1593 (2005) referring the situation in Darfur to the Court, a possibility of inducing proceedings provided by Art. 13 b) ICC-Statute.
According to Art. 17, however, the ICC shall determine that a case is inadmissible where:
‘(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.’
The principle of complementarity expressed in a) is obviously the norm al-Mardi is referring to.
Considering Sudan’s argumentation and said norms of the ICC Statute, there seem to be different legal questions under the Rome Statute that should be raised here. Before the questions can be addressed, however, it has to be said that Sudan is obliged to cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to the Security Council Resolution, so that Sudan has no argument if the Rome Statute allows for investigations by the court.
First of all, the question arises whether Art. 17 refers also to the admissibility of investigations by the prosecutor. While Art. 13 refers to the exercise of jurisdiction by the Court, Art. 17 clearly addresses situations where a case is inadmissible. According to Art. 53, however, the prosecutor, in deciding to initiate proceedings, must also consider whether the case is admissible according to Art. 17. So Art. 17 plays a role also in the beginning of an investigation. however, according to Art. 53, it is the prosecutor who decides upon such investigations, not Sudan.
The second question is whether Art. 17 applies to cases where the Security Council referred a situation to the ICC. Under the wording of the Arts. 13 and 17, it seems clear that Art. 13 - the courts exercise of jurisdiction - and Art. 17 - the admissibility of a case, speak of different questions, and since there is no special limitation, Art. 17 is applicable to all cases of Art. 13. One could argue, however, that in cases where the Security Council under Chapter VII of the UN Charter refers a situation to the ICC, the question under Art. 17 if the concerned state is willing and able to prosecute has to be denied in any case. Would there otherwise be a threat to the peace or breach of the peace allowing the Security Council to act and to refer the situation to the court?
The third question is, if Art. 17 is fully applicable also in cases where a situation is referred to the Court by the Security Council, does the Security Council’s Resolution order the Court to investigate, giving it exclusive jurisdiction whether national courts are acting or not? It seems clear that the Security Council has the power to limit the states’ jurisdiction, thus going further than even the Rome-Statute does, making the ICC some kind of special tribunal. I can however not find any special passage clearly limiting Sudan’s jurisdiction, or in any other manner derogating from the principle of complementarity.
The fourth question then would be whether the Sudan really is willing and able to investigate and prosecute all crimes committed in Darfur, which can be doubted seeing the Report by Mr Ocampo and a Background Paper by Human Rights Watch, accusing Sudans Special Criminal Court of failing to accomplish its mission of prosecuting war crimes.
posted by Nicki Boldt at 16:10
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