Can the ICC Investigate Crimes in South Sudan?

by Kevin Jon Heller

That’s the question asked by my friends at Wronging Rights, in response to a recent article in Time:

TIME claims to have obtained an internal ICC memo showing that the Court is “compiling evidence of possible recent war crimes in southern Sudan, allegedly directed by Sudanese Defense Minister Abdelrahim Mohamed Hussein.” Apparently, in addition to the Prosecutor’s request for a warrant for Hussein in connection with attacks on civilians in Darfur, “the ICC is separately building a case that Hussein may be behind the killing of civilians over the past year in Kordofan, Nuba Mountains, Blue Nile state and South Sudan.”

Internets, help us figure out what’s going on here. How can the ICC be investigating these events?

To review: There are three paths to an ICC case. The first is a referral of a situation by an involved state. The second is Security Council authorization. The third is that the Office of the Prosecutor can initiate its own investigation, but only into alleged events either (1) occurring on the territory of a state that’s accepted the ICC’s jurisdiction, or (2) perpetrated by a national of a state that’s accepted the ICC’s jurisdiction.

Sudan is not a member of the ICC, and President al-Bashir is not exactly besties with Moreno-Ocampo, so we think it’s unlikely Khartoum referred this situation to the Prosecutor.  The newly independent South Sudan has not signed up to the ICC yet, so they probably didn’t do it either. (Although there is a mechanism through which a non-signatory state can accept jurisdiction of the court over specific crimes occurring on its territory. In the case of South Sudan, this would likely only be possible for crimes occurring since July 9, 2011, when they assumed sovereign authority.)

The Security Council didn’t refer these events to the ICC either. While Security Council resolution 1593 expressly requested that the ICC take up the issue of Darfur, that referral was limited to events taking place in Darfur since 2002.  None of the new areas supposedly included in the memo are located in Darfur.  So, no jurisdiction there.

And as far as we can tell, the Prosecutor should also have been estopped from initiating his own investigation because of Sudan’s and South Sudan’s non-membership.

So, uh, what gives?

Kate and Amanda have asked me to weigh in, so I’ll give it a shot.  My best guess is — as they suggest — that the OTP has received assurances from the new South Sudanese government that it will either (1) ratify the Rome Statute and accept the Court’s jurisdiction retroactively, or (2) file a declaration under Article 12(3) of the Rome Statute accepting jurisdiction on an hoc basis over the crimes the OTP is investigating.  Either way, the issue would be how far back in time South Sudan could accept the Court’s jurisdiction.  Kate and Amanda suggest that the relevant date would be 9 July 2011, South Sudan’s chosen independence day.  That makes sense, but the issue is murky — as it always is when it comes to state formation and recognition. So I can imagine two arguments for more expansive retroactive jurisdiction.  To begin with, South Sudan could argue that, for purposes of acceptance of jurisdiction, the relevant date is 7 February 2011, when the results of the independence referendum were formally published by the referendum commission.  That would be enough to justify the OTP’s investigation, because the Time article notes that the investigation is focusing on crimes committed in late May 2011.

A second argument, however, is much more interesting.  South Sudan could invoke the Eichmann “precedent” and argue that a state should have the right to give the Court retroactive jurisdiction over any and all crimes committed against its citizens, even if the state did not formally exist at the time of their commission.  Both the District Court of Jerusalem and the Israeli Supreme Court accepted a similar argument (involving domestic jurisdiction) with regard to Eichmann’s crimes against the Jews during World War II, which obviously predated Israel’s formal existence as a state.  Would the Court buy an argument based on Eichmann?  I have no idea — but I don’t think it’s frivolous.

What do you think, Kate and Amanda?

http://opiniojuris.org/2011/12/07/can-the-icc-investigate-crimes-in-south-sudan/

5 Responses

  1. Oh, interesting point about Eichmann. Even if that argument worked, though, it would only apply to events (now) on the territory of South Sudan. So I remain puzzled about the investigation regarding Kordofan, Nuba Mountains, and Blue Nile. It seems like they would have to be anticipating a Security Council referral, right?

  2. I think the Eichmann argument is particularly strong with regard to allegations of genocide.  Although Eichmann is often read as a universal jurisdiction case, for me it is really a passive personality jurisdiction case.  This is particularly apt since Eichmann was charged with committing “crimes against the Jewish People” — that was one of the substantive crimes for which he was convicted.  This is often overlooked by scholars.  Although Israel did not exist at the time he committed the crimes, the Jewish people certainly did.
     
    Does the ICC investigation in this case include genocide?  See Schabas here.
     

  3. Nice article, but there is a problem with the line of argument. According to the Art. 11 (2) of the Rome Statute, “if a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.” In other words, upon ratification the state cannot retroactively accept the Court’s jurisdiction. The Statute is silent whether or not a non-state party can accept ICC’s jurisdiction retroactively under article 12, paragraph 3.

  4. Jens, I think the passive personality point would be persuasive if South Sudan were planning to prosecute these crimes (the ones involving their citizens, anyway) domestically. But as I read the Rome Statute, the ICC only inherits state parties’ territorial and active personality jurisdiction, so I’m not sure it could proceed with a case on this basis.

  5. Peeps – you’re all overlooking a key point:
    Geography lesson: The States of South Kordofan and Blue Nile both lie in SUDAN, NOT SOUTH SUDAN – so the reference to “Eichmann” is somewhat bizarre; aka ‘virtual Sudan’ (misinformation taken as FACT) at play again.
     
    I Adam
    Sudan
     

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