Legal Limits for the ICC’s Jurisdiction over International Crimes Committed in Sudan

On 3 November 2025, the Workplace of the Prosecutor of the Worldwide Felony Court docket (ICC) introduced investigations into crimes allegedly dedicated in Darfur because the outbreak of hostilities in April 2023. This announcement comes as stories emerged from from El-Fasher, Northern Darfur, about mass killings, rapes, and different crimes.  On 7 November, UN Excessive Commissioner for Human Rights Volker Türk warned of extra atrocities in Darfur and referred to as for ‘a direct finish to the violence each in Darfur and Kordofan’ emphasising that ‘[b]outdated and pressing motion is required by the worldwide neighborhood.’ Clearly, the unspeakable horrors unfolding in Sudan requires decisive motion, together with by the worldwide neighborhood.

What’s much less clear is the authorized foundation for the investigations by the ICC in Sudan, which isn’t a state celebration to the ICC. Whereas the UN Safety Council (UNSC) referred the scenario in Darfur, Sudan to the ICC, this was in 2005 and in a distinct context. The 2005 referral was the primary time that Article 13(b) of the Rome Statute was triggered, which gives the authorized foundation within the ICC Statute for the Court docket to train its jurisdiction in non-party states.

The query arises as as to if authorized grounds for ICC jurisdiction (after twenty years because the referral) nonetheless exist contemplating the truth that Sudan has nonetheless not accepted the jurisdiction of the Court docket, and that the present battle shouldn’t be merely a continuation of the one which gave rise to the 2005 referral. 

This publish explores the temporal scope of the UNSC referral in mild of the apply of the Court docket examined towards the authorized nature of UNSC referrals underneath worldwide legislation. I argue that the related take a look at is that of a ‘ample hyperlink’ between the scenario ongoing on the time of the UNSC referral and the one at problem. That is      the take a look at adopted by the ICC previously, however views amongst judges differ as to its software in concrete circumstances.  For the reason that nature and context of the unique battle is completely different from the present one, I argue that the ICC doesn’t      in truth have jurisdiction over these crimes. A brand new UNSC referral could be required.

The Authorized Nature of the UNSC Referral

Since it’s the authorization by the UNSC that allows the ICC to lawfully train its jurisdiction (as I’ve defined intimately right here; see additionally Galand who additionally discusses the competing method primarily based on common jurisdiction, right here), the place to begin for an inquiry into its authorized limits is the referral itself.

Below Article 13(b) of the Rome Statute, the UNSC might refer a scenario to the ICC appearing underneath Chapter VII of the UN Constitution when it determines that worldwide peace and safety are threatened. The ICC then workout routines jurisdiction over crimes dedicated throughout the scope of that referral. As myself      (right here at 104-105) and others (see de Souza Dias at 85-86) have identified, the ICC, as a multilateral worldwide group, can solely train powers conferred to it by states. In my opinion, UNSC referrals are thus greatest seen because the conferral of powers to the ICC, so the authorized foundation for an train of jurisdiction (and the query of not solely the substantive legislation but in addition its temporal scope) is primarily decided by the UNSC decision (see right here at 49-53, equally de Souza Dias at 86-88). 

Sadly, Decision 1593 (2005) which contained the referral, is of quite restricted use. It merely decided that: 

‘[The] scenario in Sudan continues to represent a risk to worldwide peace and safety,’ and ‘Performing underneath Chapter VII of the Constitution of the United Nations, 1. Decides to refer the scenario in Darfur since 1 July 2002 to the Prosecutor of the Worldwide Felony Court docket.’ 

It didn’t specify an end-date. So learn how to decide the temporal boundaries of a ‘scenario’?

The ICC’s apply on the temporal scope of UNSC referrals

The ICC itself has solely dominated on the temporal scope of a UNSC referral in just a few cases. For instance, the Pre-Trial Chamber discovered with respect to the Arrest Warrant towards Al-Werfalli within the context of the 2011 Libya referral that the related ‘incidents occurring in Benghazi or surrounding areas between on or earlier than 3 June 2016 till on or about 17 July 2017 are related to the continuing armed battle underlying the referral by the Safety Council […].’ (Arrest Warrant para 23). In that ruling, it referred to a earlier determination the place it held that in referring a ‘scenario’, the UNSC      consists of ‘crimes dedicated after that point, in as far as they’re sufficiently linked to the scenario of disaster which was ongoing on the time of the referral’ (Mbarushimana para 16). 

Making use of that commonplace to the      Libyan context was not straight     ahead. The UNSC had referred the scenario in      the territory of Libya since 15 February 2011 with out an finish date. The crimes at problem befell 5 years after the referral which was triggered within the armed battle arising within the context of the revolution towards the Gaddafi regime. At the moment, the Gaddafi regime had already fallen. Nevertheless, the Chamber concluded that 

‘the Al-Saiqa Brigade [of which the accused      ha     d been a member and in the context of which the crimes were committed] has been concerned on this non-international armed battle ever because the days of the revolution towards the Gaddafi regime. Subsequently the Chamber concludes that the alleged crimes described within the Software are sufficiently linked with the scenario that triggered the jurisdiction of the Court docket by the Safety Council referral.’ (Arrest Warrant para 23)

Within the Al-Rahman determination of 17 Might 2021, this take a look at of ‘sufficiently linked to the scenario of disaster which was ongoing on the time of the referral’ was confirmed (para 25). Whereas that case arose out of the scenario in Darfur, Sudan, it didn’t pose any troublesome questions as to its temporal scope, because the crimes had occurred within the years 2003-2004,  so clearly lined by the referral that speaks of the scenario ‘since 1 July 2002’ and was adopted in 2005. 

Majority vs Dissent on the “ample hyperlink” requirement

Whereas the ‘ample hyperlink’ requirement has been utilized in choices to date, the bulk and dissent within the Njeem Arrest Warrant determination diverged sharply on its interpretation within the context of crimes dedicated in Libya lengthy after the preliminary scenario of disaster, as much as 2024. The bulk concluded that the alleged crimes had been sufficiently related to the scenario referred by the UNSC in 2011, emphasizing that Libya has skilled a steady state of disaster because the rebellion towards the Gaddafi regime, with persistent violence documented by UN stories (paras 4 et seq). They famous that the Particular Deterrence Forces (SDF/RADA) originated from revolutionary teams lively through the 2011 battle and later built-in into state constructions, and that Mitiga Jail—the place the crimes allegedly occurred—was established as a part of post-2011 safety preparations. The bulk additionally seen the continued reporting by the Prosecutor to the UNSC with out objection as reinforcing the ICC’s ongoing jurisdiction. 

In distinction, Choose Flores Liera dissented, arguing that the referral was triggered by particular acts of repression by the Gaddafi regime and can’t justify indefinite jurisdiction over unrelated subsequent conflicts. This was – in her view – obvious      from the textual content of the UNSC decision 1970(2011) which referred the scenario in Libya. In it, the UNSC 

‘condemn[ed] the violence and use of pressure towards civilians’; ‘[d]eplor[ed] the gross and systematic violation of human rights, together with the repression of peaceable demonstrators, categorical[ed] deep concern on the deaths of civilians, and reject[ed] unequivocally the incitement to hostility and violence towards the civilian inhabitants produced from the best stage of the Libyan authorities’. 

She additionally identified that the UNSC additional ‘[c]onsider[ed] that the widespread and systematic assaults [at the time] going down within the Libyan Arab Jamahiriya towards the civilian inhabitants might quantity to crimes towards humanity’. (Njeem Arrest Warrant Dissent para 5).

Flores Liera’s dissent additional burdened that later hostilities amongst new actors lack a direct temporal and contextual hyperlink to the unique scenario as required by the authorized commonplace developed by the ICC. She contrasted this to the Al-Werfalli determination, the place the ample hyperlink was discovered as a result of the Al-Saiqa Brigade was celebration to the ‘authentic’ battle, discovering that this was not the case right here (para 8). Moreover, she warned that an expansive interpretation dangers overstretching the Court docket’s mandate, significantly for non-state events in conditions referred by the UNSC. Particularly, she recognized      a extra expansive method adopted by the bulk on this case in comparison with previous findings within the context of State referrals. Right here, she contended (in my opinion appropriately) that 

‘[i]f something, jurisdiction triggered on the idea of referrals by the Safety Council, given their results, must be interpreted throughout the strict limits of the decision originating them, and never in a extra expansive kind in comparison with the Court docket’s jurisdiction triggered by a State referral.’ (para 13)

She additionally rejected the bulk’s interpretation that periodic stories by the Prosecutor to the UNSC, and the absence of objections thereto, indicate endorsement of an expanded jurisdiction for the Court docket. Choose Liera reasoned, additionally appropriately in my opinion,     that the reporting obligation stems solely from Decision 1970 (2011), which invited the Prosecutor to transient the Council on actions underneath that Decision. Periodic reporting neither alters its scope nor validates ongoing jurisdiction (paras 14-15).

Essential Analysis

According to the ICC’s choices to date, most commentators seem to have accepted the ‘ample hyperlink’ situation because the temporal restrict to a referral with out an end-date (see e.g. Galand, Prosperi). Whereas it isn’t solely clear whether or not the ICC distinguishes between a State Social gathering referral (so-called self-referral) and a UNSC referral, Choose Liera identified that the latter definitely doesn’t warrant a much less stringent take a look at of the ‘ample hyperlink’ requirement than the previous. 

Contemplating the truth that the UNSC referral is the authorized foundation for the ICC’s authority in conditions in non-party states (see above), the other may be true. As a result of the UNSC referral constitutes an distinctive mechanism that overrides the precept of consent, its scope must be interpreted extra narrowly, and strictly confined to the phrases of the originating decision, quite than expansively prolonged to subsequent, unrelated conflicts. 

Alongside these traces, Choose Liera clarified in her dissent that 

‘referrals by the Safety Council usually are not with out limits. They’re topic to the complete authorized framework of the Statute and can’t be interpreted in a vacuum. A referral underneath article 13(b) of the Statute is essentially linked to the context that originated it.’ (para 5)

In consequence, and in keeping with case legislation and scholarship, what must be decided is the ‘scenario’ that was ongoing on the time of the UNSC referral, and whether or not the present atrocities are sufficiently linked to it.

The ‘Enough Hyperlink’ in El Fasher and past

Within the case at hand, the underlying battle in Darfur that gave rise to the 2005 referral started in 2003 on account of long-standing ethnic tensions, political marginalization, and competitors over assets in Darfur, escalating when insurgent teams accused the Sudanese authorities of neglect and had been met with brutal counterinsurgency ways involving government-backed militias. The 2005 Report of the Worldwide Fee of Inquiry on Darfur concluded that severe violations of worldwide humanitarian and human rights legislation—together with struggle crimes and crimes towards humanity—had been dedicated, primarily by Sudanese authorities forces and allied Janjaweed militias. It additionally really useful a referral to the ICC. 

In some respects, the character of the battle and the actors concerned within the present battle have some similarities to the scenario in 2005 in Darfur, Sudan. The present violence in Darfur, significantly the Speedy Assist Forces’ (RSF) siege and seize of El Fasher in October 2025, has drawn comparisons to the atrocities of the early 2000s. The RSF, descended from the Janjaweed militias implicated within the authentic battle, continues to focus on non-Arab communities utilizing comparable ways—mass killings, rape, and hunger. This continuity in modus operandi, ethnic focusing on, and regional focus arguably helps the view that the scenario in Darfur is ongoing.

Alternatively, Sudan underwent a serious political shift in 2019 with the ousting of President Omar al-Bashir and the formation of a transitional authorities that included each the Speedy Assist Forces (RSF) and the Sudanese Armed Forces (SAF), even culminating within the formal declaration of the tip of the Darfur Conflict in August 2020. Then by 2023, a violent energy wrestle erupted between RSF and SAF, with the RSF—descended from the Janjaweed militias—rising as a central actor in renewed atrocities in Darfur. One might due to this fact additionally argue that there is no such thing as a such ample hyperlink to the unique scenario, because the RSF is a brand new actor and the context considerably modified and developed previously 20 years. 

In consequence, I argue that the ICC doesn’t get pleasure from jurisdiction over crimes dedicated in Darfur, Sudan on this more moderen armed battle. In an effort to have a strong authorized foundation, the UNSC would wish to undertake a brand new referral for the ICC to be approved to proceed with its investigations. Alternatively, Sudan would wish to simply accept the ICC’s jurisdiction underneath Article 12(3) of the Rome Statute, as Libya has carried out on 12  Might  2025 with respect to alleged crimes in its territory from 2011 to the tip of 2027.

Conclusion

The Darfur referral raises basic questions in regards to the temporal scope of the ICC’s worldwide felony jurisdiction. Whereas the Workplace of the Prosecutor      of the ICC has indicated that it views its mandate as persevering with, the absence of express temporal parameters in UNSC Decision 1593 creates authorized uncertainty. A lot of the ICC’s response will rely on its place as regards the authorized nature of UNSC referrals, as defined on this publish.      Totally different views seem to exist on this even among the many judges of the ICC. I’ve argued on this publish that contemplating basic rules of sovereign equality and consent, the ICC’s motion in Darfur should have a strong authorized foundation within the UNSC referral. 

As violence resurges in Darfur, the necessity for accountability is as pressing as ever. Nevertheless, one should not overlook that the ICC’s legitimacy closely depends on strict adherence to the rule of legislation, and it must be cautious to not overextend its jurisdiction past what’s legally justified. Any prosecutorial motion should be grounded in a demonstrable and legally sound connection to the unique scenario referred by the UNSC, lest the Court docket danger undermining its credibility and the fragile stability between worldwide justice and sovereign authorized boundaries.