ICC Jurisdiction Within & Beyond Darfur: Mapping the Limits of Resolution 1593

[Danielle Flanagan is an International Disputes & Litigation Associate at Hogan Lovells LLP and former Judicial Fellow at the International Court of Justice.

Mariana Goetz is the Director of Rights for Peace, a U.K. registered human rights organization working to strengthen the rights and resilience of conflict-affected communities to prevent identity-based violence.]

Amid renewed atrocities in Sudan since April 2023, the Rapid Support Forces (the “RSF”), the Sudanese Armed Forces (the “SAF”), and their respective allied militias have continued to wage a campaign of identity-based violence and widespread human rights abuses against the civilian population of Sudan in a bid to maintain control of the country.

While Sudan is not a State Party to the Rome Statute (the “Statute”), the International Criminal Court (the “ICC” or “Court”) may nonetheless exercise its jurisdiction over crimes committed in its territory or by its nationals where the UN Security Council (“UNSC”) refers a situation to the ICC Prosecutor. In March 2005, the UNSC referred the situation in Darfur, Sudan to the Prosecutor in accordance with article 13(b) of the Rome Statute. Absent another UNSC referral, the Court’s jurisdiction in Sudan derives solely from Resolution 1593, necessitating an examination of the territorial and temporal parameters defining the situation.

This submission contends that based on (i) the plain language of Resolution 1593, (ii) the Court’s jurisprudence interpreting the parameters defining situations under investigation, and (iii) the design and purpose of the UNSC referral mechanism, Resolution 1593 provides jurisdiction over crimes committed after April 2023 in Darfur and other regions of Sudan, insofar as there is a sufficient link between the situation referred in the Resolution and the crimes alleged.

The Plain Language of Resolution 1593

Resolution 1593 uses the territory of Darfur to immediately define the territorial scope of the Court’s referral-based jurisdiction. The plain language of Resolution 1593 provides, in relevant part, that the UNSC, “[d]etermining that the situation in Sudan continues to constitute a threat to international peace and security […] decides to refer the situation in Darfur”. The question therefore arises as to whether the Court’s referral-based jurisdiction applies to crimes committed in parts of Sudan beyond Darfur.

While the text of Resolution 1593 refers to Darfur, it does not expressly limit jurisdiction to conduct occurring solely within the region. Even as the Resolution makes several specific references to Darfur, the same referral calls attention to “the situation in Sudan” and the need to create reconciliation-centred institutions “involving all sectors of Sudanese society”.

Resolution 1593 also leaves open the question of the duration of the Court’s referral-based jurisdiction. The plain language of the Resolution again provides that the UNSC referral applies to events “since 1 July 2002”. Notably, the Resolution does not provide a corresponding end date, appearing to permit the Court to exercise its jurisdiction over crimes committed from 1 July 2002 onwards. Other framing language in the Resolution—such as “the situation in Sudan continues to constitute a threat” and the UNSC “decides to remain seized of the matter”—reinforces the continuing nature of the situation and the crimes committed therein. Subsequent UNSC Resolutions have also continued to cite to this crisis situation, including during the 39-month political transition period and as recently as 2024, further evidencing how Sudan “has been under constant examination by, and a continuing source of deep concern for, the [UNSC] since at least the early 2000s” (Para 50).

The Court’s Jurisprudence Interpreting the Temporal & Territorial Parameters Defining Situations under Investigation

In addition to the Resolution’s plain language, the Court has taken an expansive interpretive approach to temporal and territorial jurisdiction across all mechanisms used to trigger its jurisdiction: (a) UNSC referrals (article 13(b) of the Statute), (b) State Party referrals (article 13(a)), and (c) proprio motu investigations (article 13(c)). While UNSC referrals are most relevant to the instant discussion, the Court’s expansive interpretative approach across all mechanisms suggests that it has achieved broad acceptance among ICC Pre-Trial Chambers and may be establishing itself as the prevailing standard.

Regarding UNSC referrals, the Pre-Trial Chamber in The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”)—evaluating the scope of the Situation in Darfur—addressed only the start date of jurisdiction, without imposing or otherwise referencing an end date. In the absence of express language to the contrary, the Chamber indicated that restrictions on jurisdiction should not be inferred. In particular, when rejecting the defence’s argument that a subsequent UNSC Resolution retroactively abrogated jurisdiction conferred by Resolution 1593, the Chamber stressed that unless a UNSC referral or other triggering mechanism does so explicitly, “the very idea that the effect of an act triggering the jurisdiction of the Court could be simply taken away by a subsequent act runs counter to fundamental and critical features of the system governing the exercise of the Court’s jurisdiction” (Para 33).

The Ali Kushayb Chamber’s decision confirms that unless and until the UNSC imposes an express temporal limit on the Court’s jurisdiction, the plain language of Resolution 1593 controls and jurisdiction remains ongoing for crimes linked to the referred situation. It is critical to note, however, that the Chamber’s interpretative approach to temporal jurisdiction was adopted within the context of crimes allegedly committed between 2003 and 2004, i.e., crimes with close temporal proximity to, and predating, Resolution 1593. Considering that the crimes here postdate April 2023, this post reviews the interpretative approach undertaken by the Court across other triggering jurisdictional mechanisms, where the alleged crimes spanned a wider timeline.  

Regarding State Party referrals, the Pre-Trial Chamber in The Prosecutor v. Callixte Mbarushimana—evaluating the scope of the Situation in the Democratic Republic of the Congo—noted that, as a threshold matter, where “the situation of crisis referred was ongoing at the time of the [r]eferral… the boundaries of the Court’s jurisdiction can only be delimited by the situation of crisis itself” (Para 27). Thus, in the absence of a specific timeframe provided within a referral, the Court may exercise jurisdiction where there is a “link” between the situation referred and the crimes allegedly committed (Para 41–43). The above-referenced “link” has generally been established where the alleged crimes occur in the context of hostilities or patterns of violence that underlie the referral to the Court and which “can stretch over a number of years” (Para 50).

As applied to Sudan, the “link” between crimes committed in the early 2000s and 2023–onwards lies in the continuity of actors, affected communities, and patterns of violence. First, the RSF, a key actor in the post-April 2023 violence, traces its origins to the Janjaweed, who were accused of a range of atrocities committed in Darfur in the early 2000s under the pretext of a counterinsurgency campaign. While the RSF officially formed in 2013, it emerged from, and is primarily composed of, members of the Janjaweed following their integration into formal Sudanese government structures. General Abdel Raheem Hamdan Dagalo (“Hemedti”) (the current RSF commander), for instance, was allegedly implicated in crimes committed against civilians in Darfur, Southern Kordofan, and Blue Nile in the early 2000s. Likewise, General Abdelfattah al-Burhan (the current SAF commander) allegedly oversaw the Janjaweed from 2002–05 in his previous role as commissioner of Jebel Mara. Both of these actors have once again surfaced as perpetrators of post-April 2023 violence across multiple regions of Sudan. Second, the Situation in Darfur at the time of the referral was marked by the systematic targeting of non-Arab communities, particularly the Fur, Masalit, Zaghawa, among others (Para 289). In 2023, incidents of identity-based violence and hate speech against these same communities have been reported across Darfur and other regions, reflecting the same pattern of targeting that characterized the situation of crisis at the time of the referral. Third, the use of the same means of violence, namely, house-to-house killings, summary executions, sexual violence, mass looting and burning of property, further corroborates the existence of such a “link”.

Regarding proprio motu investigations, the Pre-Trial Chamber—evaluating the scope of the Situation in Côte d’Ivoire—similarly adopted an expansive interpretative approach towards jurisdiction when grouping continuing crimes within the same situation. In such case, the Chamber authorised an investigation into various crimes, including “continuing crimes that may be committed in the future” (Para 212). For these “continuing crimes”, the Chamber explained that an investigation is authorised “as part of the ongoing situation”:

insofar as the contextual elements of the continuing crime are the same as for those committed prior to 23 June 2011. They must, at least in a broad sense, involve the same actors and have been committed within the context of either the same attacks… or the same conflict (Para 179) (emphasis added).

In a subsequent decision, the Chamber went on to note that events occurring between 2002 and 2010, “although reaching varying levels of intensity at different locations and at different times, are to be treated as a single situation”(Para 36). Critical to the Chamber’s reasoning was the protracted nature of the underlying “power struggle”.

As applied to Sudan, the protracted nature of the underlying power struggle—evidenced by the same perpetrators (albeit reconstituted under different militia names), target communities, and patterns of violence—support that the alleged crimes form part of the same situation originally referred in 2005. While the Court has indeed identified a limiting principle on the bounds of its jurisdiction (i.e., a “link” or shared contextual element), this principle was introduced only “with a view to avoiding that referrals become instruments permitting a State to abdicate its responsibility for exercising jurisdiction over atrocity crimes for eternity” (Para 21).

The Design and Purpose of the UNSC Referral Mechanism

Finally, the UNSC referral mechanism, unlike the other mechanisms used to trigger the Court’s jurisdiction, maintains several design features that facilitate a broad construction of the Court’s jurisdiction.

One design feature pertains to how article 13(b) referrals permit the UNSC to bypass the Court’s conventional jurisdictional limits, namely the preconditions of territoriality and nationality. In other words, Resolution 1593—similar to all article 13(b) referrals—acts to extend the Court’s jurisdiction beyond article 12(a)’s preconditions, neither requiring that the alleged crimes be committed by nationals of a State Party nor occur on State Party territory. This feature effectively serves as “a tool suitable to potentially broaden the jurisdictional reach of the Court” (Para 41), such as by permitting the Court’s exercise of jurisdiction over crimes committed in the territory of a Non-State Party such as Sudan.

A second design feature pertains to how article 13(b) referrals refer “situations” rather than particular “matters”, “cases”, or “crimes” to the Court’s jurisdiction. The Court has generally defined a situation as a “specific set of events in respect of which credible allegations of crimes are made” (Para 25). The Statute’s travaux préparatoires confirm that while the drafters considered terms such as “matter” and “case” alongside that of “situation”, they nevertheless selected the term “situation” with a view to minimize, among other things, the UNSC’s agenda-setting power over the Court, the politicization of the referral procedure if referrals were to be made with regard to specific individuals or crimes, and undue restrictions on prosecutorial discretion and the effective functioning of the Court. Consistent with the Statute’s drafting history and the general prerogatives of the Court, the term “situation” was intended to provide an initial frame under which the Prosecutor could investigate and prosecute certain crimes, rejecting the notion that a referral mechanism could limit the focus of the Prosecutor’s activities by reference to a particular crime, location, time, or suspect (Para 27). Accordingly, unlike a “matter” or “case”, a “situation” encompasses a range of crimes committed by multiple suspects in multiple locations, so long as the crimes are sufficiently linked to the originally-referred situation. These features support a liberal reading of Resolution 1593’s referral of the Situation in Darfur to the Court.

Conclusion

The foregoing review of Resolution 1593’s plain language, the above line of case law, and the design and purpose of UNSC referrals reinforces the idea that situations, like the Situation in Darfur, only mark the beginning of the Court’s jurisdictional analysis; that is, they function to draw the Court’s attention to crimes arising within a given context but do not impose fixed territorial or temporal limits. Therefore, Resolution 1593 should not limit the focus of the Prosecutor’s activities by reference to Darfur. Instead, it offers an initial frame for the Prosecutor to investigate and prosecute crimes with a sufficient “link”.

Photo Attribution: “United Nations Security Council” by Patrick Gruban is licensed under CC BY-SA 2.0