The referral of darfur crisis to the international criminal court
0
The referral of darfur crisis to the international criminal court
Ibrahim Mashhour Aljazy, Mahasen Mohammed Aljaghoub
ABSTRACT
On 31 March 2005, the United Nations Security Council adopted Resolution 1593 referring the situation in Darfur, since 2002 to the Prosecutor of the International Criminal Court ICC. Such a referral is unprecedented in the ICC's short history. On March 4, 2009 the ICC issued an arrest warrant for Sudan's president, Omar al-Bashir. This article argues that being the first referral and subsequently the first arrest warrant issued against a sitting Head of State have triggered concerns and therefore was received differently among the States of the international community. A further major concern is the undermining of the states' sovereignty and the immunity and privileges of the head of states which might create tension and lack of cooperation among states. The aim of this article is to examine the legal basis and the legitimacy of the Security Council referral of the Darfur case to the International Criminal Court (ICC), the possibility of requesting an advisory opinion from the International Court of Justice (ICJ) on the competence of the Security Council to refer a situation to the ICC, The article also examines the request of International Criminal Court’s prosecutor to issue the arrest warrant against the sitting Sudanese President and its legal consequences. The research attempts to offer legal layouts for the complex situation in Darfur.
KEYWORDS
The International Criminal Court; Darfur, Security Council; Referral; Arrest Warrant
إحالة أزمة دارفور إلى محكمة الجنايات الدولية: منظور قانوني
Ibrahim Mashhour Aljazy, Mahasen Mohammed Aljaghoub
ABSTRACT (AR)
في 31 آذار 2005، اصدر مجلس الأمن الدولي قراراً برقم 1593 بشأن الوضع في اقليم دارفور السوداني، وذلك بإحالة ملف هذا الاقليم إلى محكمة الجنايات الدولية. وفي 4/3/2009 قامت المحكمة بإصدار مذكرة اعتقال بحق الرئيس السوداني.
تعالج هذه الدراسة الردود الدولية تجاه هذه المذكرة لاسيما وان الرئيس السوداني مازال يتمتع بصلاحياته الدستورية كرئيس لدولة السودان. كما تركز هذه الدراسة على ما لهذه المذكرة من تأثيرات سليمة على سيادة الدول.
تستهدف هذه الدراسة بحث الأساس القانوني لشرعية مثل هذه الحالة وامكانية طلب رأي محكمة العدل الدولية في أهلية مجلس الأمن لإحالة هذا الملف إلى المحكمة الجنائية الدولية.
KEYWORDS (AR)
محكمة الجنايات الدولية، دارفور، مجلس الأمن، إحالة، مذكرة اعتقال
Dirasat, Shari’a and Law Sciences, Volume 38, No. 2, 2011
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The Referral of Darfur Crisis to the International Criminal Court:
Legal Perspective
Ibrahim Mashhour Aljazy and Mahasen Mohammed Aljaghoub*
ABSTRACT
On 31 March 2005, the United Nations Security Council adopted Resolution 1593 referring the situation in
Darfur, since 2002 to the Prosecutor of the International Criminal Court ICC. Such a referral is unprecedented in
the ICC's short history. On March 4, 2009 the ICC issued an arrest warrant for Sudan's president, Omar alBashir. This article argues that being the first referral and subsequently the first arrest warrant issued against a
sitting Head of State have triggered concerns and therefore was received differently among the States of the
international community. A further major concern is the undermining of the states' sovereignty and the immunity
and privileges of the head of states which might create tension and lack of cooperation among states. The aim of
this article is to examine the legal basis and the legitimacy of the Security Council referral of the Darfur case to
the International Criminal Court (ICC), the possibility of requesting an advisory opinion from the International
Court of Justice (ICJ) on the competence of the Security Council to refer a situation to the ICC, The article also
examines the request of International Criminal Court’s prosecutor to issue the arrest warrant against the sitting
Sudanese President and its legal consequences. The research attempts to offer legal layouts for the complex
situation in Darfur.
KEYWORDS: The International Criminal Court; Darfur, Security Council; Referral; Arrest Warrant
INTRODUCTION
The United Nations Organization (UN) has described
Sudan's western Darfur region as one of the world's worst
humanitarian crises.
1
The conflict started in 2003 when
rebels in Darfur took up arms, accusing the government
of neglecting the region. Since then, Darfur civilians have
come under attack from government troops, nomadic
militia and rebel groups. The UN says that as many as
300,000 people may have died in the conflict.
2
The
Government of Sudan denies accusations that it has used
Arab militias, known as Janjaweed, to crush the revolt.
3
The Government of Sudan and one rebel faction
signed a peace deal in May 2006, but two other factions
refused, and many new rebel groups formed since then.
Relief agencies explained that the continuing violence
makes it difficult to deliver aid in parts of Darfur. A
combined United Nations-African Union peacekeeping
force began deployment following a protracted wrangling
between the international community and the
Government of Sudan. The conflict also spilled over
Sudan's borders into Chad and Central African Republic.
4
Despite that, the Sudanese government and the most
formidable rebel group in Darfur along with the Justice
and Equality Movement, have signed a declaration of
intent paving the way for peace talks over the coming
months. Skip to next paragraph.
5
However, hostilities
resumed between the two countries days after the singing
of the agreement.
6
Security Council Referral to the ICC:
Historical background
In the early 1990s, the International Law Commission
of the United Nations started to take serious steps
towards the establishment of an international criminal
judicial entity following the issuance of three United
Nations General Assembly resolutions, in 1988 and 1989
in this respect.
7
Since the beginning of the serious study
of the subject in 1990, the prevailing perception was that
the activation of the jurisdiction of the Court under a
complaint filed to the prosecutor of the proposed Court is
an exclusive prerogative of states.
8
Accordingly, the idea of giving the Security Council,
* Faculty of Law, University of Jordan. Received on 29/6/2009
and Accepted for Publication on 22/4/2010.
© 2011 DAR Publishers/University of Jordan. All Rights Reserved.The referral of Darfur… Ibrahim Mashhour Aljazy and Mahasen Mohammed Aljaghoub
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the power to refer an issue to the Court was not
acceptable in this particular period of time. Some
considered this as a step beyond the powers of the SC
assessed under the UN's Charter.
9
However, it was not
logical to fully marginalize the role of the Security
Council and, therefore, the International Law
Commission proposed to give the SC a preventive role,
so if a state wanted to file a complaint to the Court it
would be subject to a prior approval from the SC, or in
the event of the crime of aggression or the threat of
aggression continuing the proceedings is conditional on
an advanced report of the occurrence of such crimes.
10
But since 1992, the International Law Commission
started to work towards giving the SC the power to refer
issues to the Court. The first sign emerged in the ILA
annual report to the General Assembly in the same year.
11
The idea was echoed in the year 1993
12
until an
agreement was reached to draft a special article on the
relationship between the Security Council and the Court
within the draft convention which has been achieved in
1994, and was presented to the General Assembly at its
forty-sixth session of the same year for examination and
to convene at an international conference for the
preparation of the final form of the Statute on the
establishment of the ICC.
13
Article 23 of the draft Statute granted the Security
Council three major powers: (1) The right of referral for
the crimes within the jurisdiction of the Court under
Chapter VII of the UN Charter, (2) A referral could not
be done on an act of the acts of aggression without a SC
report of the occurrence of that act, and finally the right
of arrest, which will be referred to in the conclusion of
this article.
With regard to the right of referral (Article 23/1), the
International Law Commission has made it clear that the
addition of the first paragraph is with a view to make the
jurisdiction of the Court available to resort to it when
necessary without the need to comply with the
preconditions to the exercise of jurisdiction, which apply
in respect of the referral by states.
14
Giving that role to the Security Council has been
subject to controversy in the discussions that took place
in the Interim Committee in 1995, which was established
under General Assembly Resolution of 9 December 1994
to study the draft Statute prepared by the International
Law Commission in 1994.
15
Despite the fact that several
delegations supported the idea of the activation of the
jurisdiction of the Court by the referral of the Security
Council, as it is in line with the SC key role in
maintaining international peace and security. This
proposal did not attract the support of other delegations.
The latter delegations had some reservations, including,
inter alia, to maintain the independence of the Court from
political influences, as well as granting the Security
Council this role, means granting it powers which are not
provided for in the UN Charter.
16
Discussions have
continued on this subject in the preparatory committee in
1996, which had also been established by a decision of
the General Assembly at the end of 1995, to replace the
Interim Commission in the preparation of the Statute on
the establishment of the Court.
17
However, several delegations felt that the granting of
this role to the Security Council is legitimate especially in
the light of practical experience, which proved the ability
of the Council to deal with cases which included
international crimes. This led to the establishment of the
International Fact-finding commission in Burundi, on
violations of international humanitarian law, as well as
the establishment of ad hoc tribunals for the prosecution
of war criminals in the former Yugoslavia and Rwanda
(ICTY and ICTR) under the terms of reference
established in Chapter VII of the UN Charter.
18
As well
as that this proposal would ensure that there is no need in
the future for the establishment of ad hoc tribunals.
19
Accordingly, the paragraph on the referral from the
SC was retained within the proposals prepared by the
Preparatory Committee since 1996, and up to the Rome
Conference in July 1998.
20
In Rome, the majority of
delegations confirmed the need to include in the Statute a
text which allows the Security Council to refer "the case
of" in accordance with Chapter VII of the UN Charter.
These delegations succeeded in passing the final version
of the Statute, including this power.
21
It must be
recognized that granting of this role to the SC has become
a reality which must be dealt with in the light of the
available legal framework.
Security Council Referral of the Situation in Darfur to
the ICC
Following the deterioration of the situation in Darfur
which continued to constitute a threat to international
peace and security, The Security Council by its resolution
1564 (2004),
22
requested the Secretary-General to
establish an international commission of inquiry to
investigate reports of violations of international
humanitarian law and human rights law.
23Dirasat, Human and Social Sciences, Volume 38, No. 2, 2011
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On 7 October, 2004 the Secretary-General decided to
establish a Commission of Inquiry.
24
The Commission
found "government forces and militias conducted
indiscriminate attacks, including killing of civilians,
torture, enforced disappearances, destruction of villages,
rape and other forms of sexual violence, pillaging and
forced displacement, throughout Darfur."
25
The Commission also found that "These acts were
conducted on a widespread and systematic basis, and
therefore may amount to crimes against humanity."
However, the commission said it does not believe the
atrocities committed amount to a policy of genocide.
"The crucial element of genocidal intent appears to be
missing, at least as far as the central government
authorities are concerned." With reference to the
accountability mechanism the Commission “strongly
recommended that the Security Council immediately
refers the situation of Darfur to the International Criminal
Court pursuant to Article 13(b) of the Statute.”
26
In the light of the above report the Security Council
in its Resolution number 1593 adopted on 31 March
2005, and acting in accordance with Chapter VII of the
Charter decided “to refer the situation in Darfur since 1
July 2002 to the Prosecutor of the International Criminal
Court.”
27
Article (13/b) reads that "the Court may exercise its
jurisdiction with respect to a crime referred to in Article
(5) in accordance with the provisions of this Statute if…a
situation in which one or more of such crimes appears to
have been committed is referred to the Prosecutor by the
Security Council acting under Chapter VII of the Charter
of the United Nations".
The impact of the referral of the Security Council for
the non-member states, is to create a jurisdiction or a
court mandate in case of crimes committed on the
territory of the non-party state or by one of its nationals.
28
This means for the special referral in Darfur that the
Court could exercise its jurisdiction under the Statute on
one of the nationals of the Sudan, the perpetrators of
crimes which took place in the Darfur province, in spite
of the fact that Sudan is not a party to the Rome Statute.
And this is an exception to the general rule set forth in
paragraph (2) of Article (12) of the Statute and in line
with the principle established by the First Pre-Trial
Chamber in its decision regarding the issuance of an
arrest warrant on Ahmad Harun and Ali Kheish where
Article 12(b) regarding the preconditions for the exercise
of jurisdiction does not apply to the referral of the
Council.
29
Therefore, it is not required to those
perpetrators of crimes to be nationals of one of the states
party nor that the crimes are committed in the territory of
a state party as stipulated under the mentioned
paragraph.
30
After a preliminary examination of the situation, an
investigation was opened on 1 June 2005 and after a
twenty-month investigation into crimes allegedly
committed in Darfur since 1 July 2002, the Prosecutor
presented evidence to the judges and a summon to two
named Sudanese officials; one being a government
minister Ahmad Muhammad Harun and the other a
military officer Ali Muhammad Ali Abd-Al-Rahman
(“Ali Kushayb”), to appear was issued with regard to
charges alleging the commission of war crimes and
crimes against humanity. Warrants of arrest were issued
on 27 April 2007 against the two officials by Pre-Trial
Chamber I.
31
The Legitimacy of the Security Council Referral of
the Situation in Darfur to the ICC:
With reference to the extent of the legitimacy of the
referral, as already have been mentioned, some states had
expressed its reservation to give the Council this role,
because it goes beyond its competence as stipulated -
exclusively - in Chapter VII of the UN Charter. But it
must be noted that, once the conditions stipulated in
Article 39 of the UN Charter are met, namely, the
Council decided in the light of its broad discretion
authority
32
of the occurrence of a threat to peace or
breach then it may determine what measures are needed,
with accordance of the provisions of Articles 41 and 42
of the UN Charter in order to maintain international peace
and security or to be restored to normal.
33
Article 41 includes measures that do not require the
use of armed forces to implement the resolutions of the
Council, and it does not explicitly provide for measures
of a judicial nature, but jurisprudence
34
and the
international judiciary had maintained that what appeared
in that article are mere examples for the arrangements
which the Council may take. This interpretation was
adopted by the ICTY in the Tadeetsh case when the
defense argued that this article failed to mention the
Council competence for establishing judicial entity. But
the ICTY refused the defense argument considering the
selection of suitable means to maintain international
peace and security and restore it to normal is a matter left
for the Council discretion.
35
The decision of the Security The referral of Darfur… Ibrahim Mashhour Aljazy and Mahasen Mohammed Aljaghoub
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Council to establish an international criminal tribunal is
one of the measures, which falls within the scope of
Article 41 of the Charter.
36
It could be argued that since it was established that
the Security Council has the power to establish a judicial
entity in order to maintain international peace and
security or to restore order, by analogy, it can also take a
decision to refer a matter to the ICC as one of the
measures that do not require the use of armed force,
pursuant to Article 41 of the UN Charter.
Since Articles 24 and 25 of the UN Charter establish a
legal obligation on all states members of the United
Nations to accept the decisions of the Security Council,
as it had entrusted it with primary responsibility for the
maintenance of international peace and security,
37
by
doing so, the Sudan -in principle- is bound by the referral
decision and the consequent of legal effects, provided for
in the ICC Statute, for being a state member of the United
Nations and without the requirement to be a party to the
ICC Statute.
This should not be effected by the fact that the general
rule set forth in Article 34 of the Vienna Convention on
the Law of Treaties provides that the international treaties
only obliges its parties.
38
As Article 103 of the Charter
provides that it was decided in the event of a conflict
between the obligations of states arises from the Charter
and those arising from any other convention, would be
the priority of the obligations of the Charter.
39
Therefore,
to argue to that the exercise of the ICC's jurisdiction over
a non-party state, within this context is contrary to the
law is unsound.
However, this does not mean that the Council enjoys
absolute authority without any restriction; its decisions
must be in line with the provisions of the Charter,
including the purposes and principles of the United
Nations.
40
The Security Council decisions must respect
the norms of international law, as the Council is one of
the main organs of the international organization
according to Article 7 of the UN's Charter operating
under the international legal system.
41
This is what was
reached by the Appeals Chamber of the International
Criminal Tribunal of Former Yugoslavia in the Tadić
case when it stated that the Security Council is an organ
of an international organization established under a
Convention which works as a constitutional framework
for the organization.
Therefore, the Security Council is subject to some of
the constitutional constraints, regardless of the extent to
which the breadth of the powers assigned to it under the
Charter.
42
One could argue that the competence of the
Security Council to refer matters to the ICC in general
terms, does not mean that the content of the referral
decision related to the Sudan is not spoiled with
contradiction.
43
It would be sufficient at this point to refer to one of
the most important points contained in the text of
Security Council's Resolution number 1539 on the
referral, which have outraged many scholars of
international criminal law.
44
The sixth clause of the said
resolution stipulates that "the council decides on the
subjugation of citizens of any states which are not a state
party to the Statute outside of the Sudan or its officials
outside or current or previous individuals to the exclusive
jurisdiction to that contributing state of all what is
claimed of committing or refrain from doing as or result
of the work of the operations aroused or allowed by the
Council, or the African Union, or what is related to these
operations as long as that the contributing state did not
renounce of this exclusive jurisdiction clearly.
45
The
addition of this paragraph of the text to the resolution is a
product of pressure from the United States to avoid that
its nationals from the peacekeeping forces would be
brought to the ICC. The US has succeeded in passing the
text itself in an earlier resolution on Liberia.
46
It is generally accepted that it would be sufficient for
the convening of the jurisdiction of the Court that the
crime took place on the territory of a state party or by
nationals of a state party, and this means that the Court
could exercise its jurisdiction over nationals of one of a
non-party state if the crime was committed on the
territory of a state party.
47
Thus, the subjection of the
nationals of the contributing states to the exclusive
jurisdiction of their state is not only a restriction on the
application of the principles of territorial and universal
jurisdiction, but also on the exercise of the ICC
jurisdiction established under Article (12/2) of the
Statute, which is considered an attempt to amend the text
of the Statute exceeding the Council mandate. This is not
affected by the text of Article 103 of the UN Charter
since that obligations only bind member states, and that
the ICC is not a state party to the Charter.
In addition to that Article 2 of the Convention on
Organizing of the relations between the United Nations
and the ICC provides that the UN is aware of the
independence of the Court as a permanent judicial entity,
and that each party to respect the status and the Dirasat, Human and Social Sciences, Volume 38, No. 2, 2011
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jurisdiction of the other, and thus the Council - as one of
the United Nations bodies - is committed to do so.
The issuance of the Security Council's resolution
contrary to the Statute does not mean that the Court is not
capable of carrying out by its own to examine the extent
of the resolution legitimacy and its compatibility with the
Statute. As the ICC is exercising its jurisdiction
"accidental" that would indicate whether it can exercise
its “inherent” jurisdiction or not.
48
The Court, however
avoided this, and accepted the referral decision relating to
Darfur, as stated by the Security Council. But this does
not prevent to argue that the lack of the Court's
jurisdiction since that the referral decision tainted
invalidity as a result of the Security Council exceeding its
prerogatives, and the Court is required to decide as it
deems.
Issuance of the Arrest Warrant
On 14 July 2008, the ICC's Prosecutor Luis MorenoOcampo filed an application to the Pre-Trial Chamber-I
requesting the issuance of an arrest warrant against Mr.
Omar Hassan Ahmad Al Bashir, the Sudanese President.
The Prosecutor alleged that his investigation had resulted
in the availability of reasonable grounds to believe that
the Sudanese President is criminally liable for the crime
of genocide, crimes against humanity and war crimes.
However, the Pre-Trial Chamber issued a warrant for the
arrest of Omar Al Bashir, for war crimes and crimes
against humanity only. The significance of the Chamber's
decision is that it is the first warrant of arrest ever issued
for a sitting Head of State by the ICC.
The Prosecution alleged that President Al Bashir
committed the crimes not physically or directly, but
through members of the Sate apparatus, including the
armed forces, the Militia Janjaweed, the Sudanese
intelligence services, the diplomatic and public information
bureaucracies and the Sudanese justice system.
On 4 March 2009, having examined the Prosecution’s
Application and the supporting material, and on the basis
of committing crimes against humanity and war crimes,
the ICC Pre-Trial Chamber I issued the said warrant.
Article 58 of the Statute is the path charted by the law
to issue an arrest warrant for anyone who is believed of
committing any of the crimes which falls within the
jurisdiction of the Court. Anytime after the initiation of
an investigation, the Prosecutor may turn to the Pre-Trial
Chamber to request issuing an arrest warrant.
It is to be noted that the request of the Prosecutor has
received negative reactions from the Arab states, and the
African Union, the League of Arab States and the
Organization of the Islamic Conference.
49
There is no doubt that what is sought by the
Prosecutor will pave the way for a critical step, especially
that the arrest of a current head of state to be tried before
an international tribunal would be difficult to be accepted
by the state or even to be understood. It must be
recognized that the rules of international law does not
deny criminal responsibility of the Heads of States in
international crimes. Although the application of
international law requires in most cases, taking into
account - to some extent - the political dimensions of the
case.
However, the ICC, as an international judicial and
independent entity specialized in international crimes, is
supposed to do not overcome the political side of the
legal side when making any decision, whether by the
Office of the Prosecutor or of the Trial Chambers. This
does not mean that the ICC operates within an isolated
framework from the outside world, but means that the
legal side is a dominant factor in the processes of taking
decisions.
It is to be noted that in accordance of Article 58 of the
ICC's Statute, there are three major controls to avoid
issuing arrest warrants indiscriminately and without legal
justification. The responsibility lays on the Pre-Trial
Chamber to verify the existence of "reasonable grounds
to believe" that the person has committed a crime of the
crimes which falls within the jurisdiction of the Court,
and to arrest him/her is necessary to ensure his/her
appearance before the trial, or to avoid hindering the
investigations or court proceedings or to endanger, or to
prevent that person from continuing with the commission
that crime or a crime relating thereto, which are within
the jurisdiction of the Court, arising from the same
circumstances.
50
The words "reasonable grounds" require a minimum
standard of proof,
51
from the words "substantial grounds"
enshrined in the paragraph on confirmation of charges of
the person concerned.
52
However, this does not mean
that issuing an arrest warrant in the light of the first
criterion is an easy process, in practice.
In the decision of the First Pre-Trial Chamber on the
prosecutor's request to issue an arrest warrant against Mr.
Thomas Lubanga in "the situation of the Democratic
Republic of the Congo", the Court affirmed in the reasons
that it would refuse to issue any arrest warrant only in the The referral of Darfur… Ibrahim Mashhour Aljazy and Mahasen Mohammed Aljaghoub
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case of its full conviction that the controls referred to it
are available.
53
In order to reach a sound and outcome, not only the
Statute obliged the chamber to examine the request
submitted by the Prosecutor, but also to examine the
evidence or any other information submitted by him.
54
As
a result of the application of the Court to a kind of
substantive oversight on the requests of the Prosecutor,
the Pre-Trial Chamber has responded to the request of the
Prosecutor on issuing an arrest warrant against Mr.
Thomas Lubanga, but refused at the same time a similar
request on the arrest of Mr. Bosco Natjanda in connection
with crimes stemming from the “same Situation.”
55
This demonstrates that the submission of the
prosecutor to the request to arrest the Sudanese president
does not assert in itself that the Pre-Trial Chamber will
approve it, and if it does, it is not necessary that the Court
will accept all of the charges received in the request and
the facts enumerated.
Accordingly it is important to note that the decision of
the Pre-Trial Chamber to respond to the prosecutor on his
request to issue an arrest warrant against the Sudanese
president falls within the discretion of the judges of the
Court and that the Prosecutor has no authority in that at
all. A question arises whether the arrest warrant in itself
or the decision issued by the Pre-Trial Chamber regarding
the request of the Prosecutor to issue an arrest warrant
shall challenged by appeal or not.
It is necessary to distinguish between the decision on
the request of the prosecutor to issue an arrest warrant
and the arrest warrant itself. The arrest warrant in itself
could not be subject to appeal, because it is not a decision
subject to challenge in procedural terms. While the
decision issued in connection with the request, the texts
on the methods to appeal did not include an explicit
reference to answer this question.
56
However, the
established Court precedents proves that appeal is
admissible if proved by one of parties that the decision
involves “a matter which shall strongly effect the fairness
and speed of procedures or the result of the trial and that
in the view of the Pre-Trial Chamber to take the an
immediate decision by the Appeals Chamber could lead
to achieving significant progress in the course of
proceedings.”
57
In the case of Joseph Kony and others, stemming
from "the situation of" the Democratic Republic of
Uganda democratic, the prosecutor requested from the
Second Pre-Trial Chamber to allow him to a partial
appeal of the Court's decision on the request of the
prosecutor to issue an arrest warrant against the
abovementioned persons. However, the Pre-Trial
Chamber did not accept that request. In order not to go
into the details of the merits, the Court converted to a
specific approach when dealing with this kind of appeals,
which is to ensure the availability of a balance between
the cases that call for effective intervention of the
Appeals Chamber in the preliminary stages of procedures
and the desire to avoid disruption of the proceedings
resulting from recourse to challenge by appeal.
58
By examining the conditions prescribed by the law
59
in the light of principle, which was approved by the
Chamber, it decided that the prosecutor could not prove
availability of the said conditions.
60
It is worth noting that
following the issuance of the arrest warrant against the
Sudanese president, that such warrant could be
challenged if it satisfies the above mentioned conditions.
The Possibility of requesting an Advisory Opinion
from the International Court of Justice:
61
It was reported in one of the Sudanese newspapers
that the Sudan is trying to request an advisory opinion of
the ICJ on the validity of the Council's referral to the
ICC, and whether that the latter have jurisdiction over
none party states or not.
62
The UN's Charter does not give states a direct right to
request an advisory opinion from the ICJ, but could take
that action by the General Assembly or the Security
Council.
63
Here, a practical difficulty may arise, because
in a situation where we seek the General Assembly, a
two-thirds majority votes must be obtained. As for the
Security Council, a distinction must be made between
two cases: if the Council's decision on the request of the
advisory opinion of the procedural matters, it is necessary
for the availability of nine votes, but if it is considered of
other issues, it must be nine votes including the votes of
the five permanent members.
64
With regard to the development in the Sudan, it is
unlikely that the Council shall approve this measure,
hence as it is the source of referral to the ICC , but it is
more likely that the Sudan can obtain these votes legally
required by the General Assembly. In this case, the GA
may request an advisory opinion related to any legal
question, even if abstract or live in mystery.
65
Provided
that the question stems from the scope of its activity.
66
The general principle, which was claimed by ICJ in its
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opinion, however, the possibility of refusal is still there
on the basis of what the Court ruled in some of its
decisions that, as the availability of compelling reasons
this request can be refused.
67
To check the availability of such compelling reasons
falls within the discretion of the Court.
68
Inevitably, that
the Darfur problem concerning the maintenance of
international peace and security, and therefore it does not
only fall within the jurisdiction of the Security Council,
but also in the jurisdiction of the General Assembly.
69
Here the question arises whether the intervention of the
General Assembly to request an advisory opinion is
incompatible with the main role of the Security Council,
and is contrary to Article (12/A) of the UN Charter,
which provides that "when the Security Council, in
connection with disarmament or a position, the posts that
were drawn in the Charter, it is not the General Assembly
to make a recommendation with regard to that dispute or
situation unless on the request of the Security Council.
70
This point has been raised recently in the case of the
Separation Wall, when Israel argued that the General
Assembly went beyond the borders of its authority, when
it issued a decision to request an advisory opinion from
the ICJ in violation of Article 12 of the UN Charter.
71
However, the Court found that the narrow interpretation
of the content of that article had evolved since 1961. Over
time, actual practice has proved that there was a tendency
to accept the role of each of the Security Council and the
General Assembly on the maintenance of peace and
security in parallel, and this was seen in a number of
problems, with reference to South Africa, South
Rhodesia, and Somalia.
Therefore, the request of the General Assembly for an
advisory opinion is not a breach to Article (12/1) of the
UN Charter.
72
Advisory opinions which are issued by the
Court are not binding, but it produces important legal
effects. All United Nations bodies are guided by these
advisory opinions, including the General Assembly,
which is used to issue decisions requiring the compliance
with the opinion of the Court. In addition to these,
advisory opinions have a major impact in the
development of international law.
73
Concluding Remarks
It can be noted from the above mentioned; that the
idea of referral by the Security Council is not the product
of conflict in Darfur, but it was an idea embedded in the
minds of many of those involved in the preparation of the
Statute. The possibility of such referral became a reality
which cannot be avoided with all its advantages and
disadvantages.
It should also be noted that the quest to request an
advisory opinion from the ICJ regarding the validity of
the Security Council to refer a matter to the ICC would
not solve the Sudanese crisis. It is inconceivable that the
ICJ will render an advisory opinion which shall doubts
the legality of the referral to the ICC, particularly that
practical experience has proved that the International
Court of Justice have always been cautious in issuing its
decisions and advisory opinions when dealing with the
decisions of the Security Council.
74
This stems from the ICJ conviction that the UN
Charter did not reveal the supremacy of a UN body over
other United Nations bodies, but each of the ICJ and the
Security Council has a role which complements each
other within its terms of reference.
75
On the international
judiciary level we find a close relationship between
international tribunal, regional and national courts
founded on understanding and respect to all judicial
entities for the jurisdiction of the other.
While in fact the Court due to its desire to avoid any
form of overlapping in jurisdiction that may arise from
the acceptance of the proceedings, as well as to request an
advisory opinion on the legitimacy of the referral from
the Security Council realistically represents indirect
request to consider the legality of the text of Article 13(b)
of the Statute. If the advisory opinion leads to the
illegality of the referral and the Security Council accepted
to apply this would lead to disruption, total or partial to
one of the mechanisms which activate the ICC
jurisdiction. The ICJ would not favor such a decision and
avoid bearing its consequences.
On 21 July 2008, the Council for Peace and Security
of the African Union issued a resolution requesting the
UN Security Council to use its powers under Article 16
of the ICC Statute to defer the proceeding related to the
Sudanese president.
76
The same idea was echoed n the
Enlarged Ministerial Meeting of the Executive
Committee of the Organization of the Islamic
Conference, held in Saudi Arabia on August 4, 2008.
77
Despite the lack of response of the Security Council, until
present time, to this request, however, in its Resolution
No. 1828 on the extension of the mandate of the mixed
Operation of the African Union and the United Nations in
Darfur, the SC pointed out that it has taken note of the
intention to continue considering these questions,
including the required request of deferral.
78The referral of Darfur… Ibrahim Mashhour Aljazy and Mahasen Mohammed Aljaghoub
- 728 -
This reference suggests the possibility of raising the
deferral issue in the future, particularly following the
decision of the Pre-Trial Chamber to issue the arrest
warrant of the Sudanese president. Article 16 grants the
Security Council the power to request to delay commence
or proceed in the investigation or prosecution for 12
months, renewable on a decision by the Council, pursuant
to Chapter VII of the Charter.
But the deferral is a temporary solution, and does not
lead to the droppings of the arrest warrants, that was
issued, or deny the criminal responsibility, if proven. As
well as that the deferral expires after 12 months.
Although that Article 16 does not put a constraint on the
number of extended times but from a legal perspective it
can not be extended indefinitely, being an action taken
under the umbrella of Chapter VII, and linked to the
conditions established by Article 39 of the UN Charter.
This means that any attempt for an extension would
require the SC to verify the existence of a case which
constitutes a threat to international peace and security or
breach, as well as to get nine votes, including, the votes
of the five permanent members, which is a difficult task
to achieve.
79
This is what has been proved in practice,
when the United States succeeded in passing the deferral
by a SC Resolution No. 1422 granting immunity of
nationals of non-States parties of the Statute, including
US citizens and which was extended under SC Resolution
No. 1487 in the following year, but failed to re-extended
for a third time.
80
In the sense of proceeding in procedures to achieve
true investigations by the Sudanese Government against
Ahmed Haroun and Ali Khsheep about the charges
against them in the arrest warrant and then argue for the
inadmissibility of the case before the Court.
81
Following
the ICC verification of the investigation measures or a
serious prosecution, then the ICC must abide by those
measures taken by the national judiciary. Hence that
Rule number 51 of the Procedural Rules and the
confirmation Rules of the Court grant the state the right
to submit any information it deems to benefit that its
courts exact the rules and the criteria the confessor
international judicial to pursuit independent and fair
prosecution regarding a similar attitude.”
As the ICC evaluates this information at the
examination of any defense related to the rejection of the
case according to Article 17 (2) of the Statute. This
measure even though that it does not directly lead to
determine the rejection of the lawsuit regarding the
Sudanese President. It is considered a step may on the
case if the Sudanese government decided to initiate or
start national investigations regarding what erupted
against the Sudanese President as an alternative to the
ICC procedures.
NOTES
(1) “UN Darfur mission within days” BBC, April 20,
2004 available at:
http://news.bbc.co.uk/1/hi/world/africa/3641457.stm
(2) For more up to date information on the current
humanitarian presence in Darfur see Darfur
Humanitarian Needs Profile No.34, January, 01,
2009 on
http://www.unsudanig.org/docs/090330%20DHP%2
034%20narrative%201%20January%202009.pdf
(3) For more details on the current situation in Darfur
see international crisis group website:
http://www.crisisgroup.org/home/index.cfm?id=306
0&l=1&gclid=CNfu8bHijpoCFYKB3godWTrBFQ
(4) In a recent development in Darfur the United
Nations secretary-general Ban Ki moon has urged
Khartoum to reinstate key international aid groups
that were expelled from Darfur last month following
an arrest warrant for Sudan's President on alleged
war crimes. See the UN Secretary General Report to
the Security Council issued on Wednesday, April
22, 2009.
(5) ‘Sudan and Darfur Rebel Group Agree to Peace
Talks’ in New York Times on 18 February 2009.
http://www.nytimes.com/2009/02/18/world/africa/1
8sudan.html
(6) Sudan: Chad 'launches fresh raid' found in
aljazeera.net on 16 May 2009.
http://english.aljazeera.net/news/africa/2009/05/200
951611362621423.html
(7) G.A Res. 164/43; G.A. Res. 44/39.
(8) 1990 YILC Vol. II, Part Two, Para. 135; Summary
Record of the 2207 the mtg., 191 YILC, Vol. I,
para. 3; Summary Record of the 2210 the mtg.,
Paras. 8-9; Summary Record of the 2210 the mtg.,
1991 YILC. Vol. I paras. 50; Summary Record of
the 2207 the mtg., 1991 YILC, Vol. I paras 8-9;
Summary Record of the 2213 the mtg., 1991 YILC,
Vol. I, para. 10.Dirasat, Human and Social Sciences, Volume 38, No. 2, 2011
- 729 -
(9) 1991 YILC, Vol. II, Part One, Para. 57.
(10) 1990 YILC, Vol, II, Part Two, paras. 136-137, 140;
Summary Record of the 2212 the mtg., 1990 YILC,
Vol. I., paras 8.; Summary Record of the 2213 the
mtg., 1990 YILC. Vol. I, para. 10.
(11) 1992 YILC, Vol. II, Part Two, paras 121.
(12) 1993 YILC , Vol. II. Part Two. Paras. 74, 18, 112.
(13) 1994 YILC. Vol. II, Part Two, Art. 23, p. 43.
(14) Ibid., p. 44.
(15) G. A. Res. 49/53.
(16) Report of the Ad hoc Committee on the
Establishment of an International Criminal court,
UNGAOR, 50th Sess., Supp. No. 22, UN Doc.
A/22/50 (1995), paras. 120-121 (hereinafter 1995
AD hoc Committee Report).
(17) G. A.Res. 46/50.
(18) Report of the Ad hoc Committee on the
Establishment of an International Criminal court,
UN GAOR, 51st Sess., Vol. I. Supp. No. 22, UN
Doc. A/22/51 (1996), paras. 120-121 (hereinafter
1995 , paras. 132-136 (hereinafter 1996 Preparatory
Committee Report, Vol. I)
(19) Ibid., para. 133.
(20) 1996 Preparatory Committee, Vol, pp. 75-76;
Decisions Taken By the Preparatory Committee at
its Session Held from 4 to 15 August 1997, (A/AC
249/1997/ January 1998 in Zutphen, The
Netherlands (A/AC249/1998/L13. 1998), (Art 10
(23), pp. Criminal Court, Draft Statue & Draft Final
Act (A/Conf 183/2/Add I., 1998) (Art 10). CONF
183 /SR2., pp. 65, 67 – 71, SR3., pp. 75, 72-78;
SR4., p. 83 (Syria against), pp 86 -87 favoured a
referral by the Security council, See p. 88; SR5., pp.
94-95; SR6., pp. 97/100, 98; and Summary
Rescored of the 6th -9 th mtgs. Of the Committee of
the Whole A/CONF183/C1/SR. 6-9.
(21) Rome Statute, Art 13 (b); P. Kirsch, J. Holmes.
“The Rome Conference on an International
Criminal Court; The Negotiating Process”, 93 AJIL,
8, 2 (1999) ; Lionel Yee, “The International
Criminal Court and the Security council; Article
13(b) and 16” in Roy S. Lee (Ed), The International
Criminal Court; The Making of the Rome Statute ,
(The Hague. London. Boston: Kluwer Law
International, 1999), pp. 147-148.
(22) UN Security Council Resolution 1564 adopted on
18 September 2004.
(23) On the UN International Inquiry Report see
Christine Byron, “Comment on the Report of the
International Commission of Inquiry on Darfur to
the United Nations Secretary-General” in Human
Rights Law Review 2005 5(2):351-360;
doi:10.1093/hrlr/ngi020.
(24) The international Commission was comprised of
five members: Antonio Cassese of Italy, as
Chairman; and the other members being
Mohammed Fayek of Egypt, Diego Garciá-Sayán of
Peru, Hani Jilani of Pakistan, and Thérèse Striggner
Scott of Ghana.
(25) Report of the International Commission of Inquiry
on Darfur to the United Nations Secretary -General,
Geneva 25 January 2005, p.3 found at
http://www.un.org/News/dh/sudan/com_inq_darfur.
(26) Report of the International Commission of Inquiry
on Darfur to the United Nations Secretary -General,
Geneva 25 January 2005, p.5 found at
http://www.un.org/News/dh/sudan/com_inq_darfur.
(27) UN Security Council Resolution Number 1593
adopted on 31 March, 2005.
(28) See also, S. A Williams, W. A. Schabas “Exercise
of Jurisdiction “, in O. Triffterer (ed), Commentary
on the Roms Statute of the International Criminal
Court – Observers. Notes. Article by Article, 2 nd.,
(United Kingdom Germany; C. H. Beck Hart
Normos, Council . in A. Casses et al. (eds) , The
Rome Statute for an International Criminal Court;
A Commentary (Oxford; OUP, 2002), p. 634.
(29) ICC -05/02-07/01-1- Court, Para, 16.
(30) M. H. Arasnjani, “The Rome Statute of the
International Criminal Court”, 93 AJIL 26, 22
(1993); M Scharf, “The ICC Jurisdiction over the
Nationals o Non-Party States; A Critique of the U. S
Position”, 64 Law and Contemporary Problems 79,
76, 67 (2001).
(31) See ICC-02/05-01/07-201-05-2007 1/16 CB PT and
ICC-02/05-01/07-3 01-05-2007/1/17 CB PT. See
also Schabas, International Criminal Court, pp.47.
(32) E. De Wet, The Chapter VII Powers of the United
Nations Security Council, (Oxford; Hart, 2004), PP.
134, 184; Frowein, Krisch, “Article 39” in B.
Simma et al. (eds), The Charter of the United
Nations; A Commentary, 2 nd ed., Vol. 1, (Oxford;
OUP, 2002), pp 717-718.
(33) De Wet, Supra note 32, pp. 179, 184.The referral of Darfur… Ibrahim Mashhour Aljazy and Mahasen Mohammed Aljaghoub
- 730 -
(34) B. Conforti, The Law and Practice of the United
Nations, 3 rd rev. ed.,
(35) See, UN Charter, Art 39.
(36) See the Equivalent decision upon which the
Yugoslavia Tribunal Partly built on its argument,
Effects of Awards of Compensation made by the
U.N.; Administrative Tribunal, Advisory Opinion,
ICJ Reports (1954),p. 61.
(37) UN Charter, Arts 24(1) and (2), 25; Delbrk, “Article
24” in B. Simma et al. eds. Vol. I, Supra note 32, p.
442 et seq.; Ibid., “Article 25” in Ibid, . 452 et seq.
(38) The leading authority on this rule (pacta teriis nec
nocent nec prosunt) is the Permanent Court of
International Justice in Free Zones of Upper Savoy
and The District of Gex, Judgment of 1932/06/7, P.
C. I. J, Series A./B., No. 46, p. 141.
(39) UN Charter, Arts 103: Bernhardt, “Article 103”, B.
Simma et al. (eds) Vol. II Supra not 32, p. 1293 et
seq.
(40) UN Charter, Arts 2,1; See also Preamble, para. 3
and G.A. Res. 2625 (XXV) developing those
purposes and principles; A. Orakhelashvili, “The
Acts of the Security Council: Meaning and
Standards of Review”, II Max Planck YUNL 143,
149 (2007).
(41) Interpretation of the Agreement of 25 March 1951
between the WHO and Egypt, advisory opinion, ICJ
Reports 1980, pp. 89-90 (“International
Organizations are subjects of International Law, and
as such, are bound by any obligations incumbent
upon them under general rules of International Law,
under their constitution or under international
agreements to which they are parties” ) ; also L.
Mart” nez, “The legislative Role of the Security
Council in its Fight Against Terrorism; Legal
Political and Practical Limits” 57 ICLQ 333, 345
(2008).
(42) See, supra note 36.,para 28.
(43) See also. R. Cryer. “Sudan. Resolution 1593, and
International Criminal Justice”. 19 Leiden JIL 195,
214 (2006).
(44) For further details on the inconsistencies, see L.
Condorelli, A. Caimpi “Comments on the Security
Council Referral of the Situation in Darfur to the
ICC” 3 JICJ 590 et seq. (2005); S. A. Wiliams, W.
A. Schabas, supra note 28, pp. 571-574.
(45) UN Doc. S/RES/1593 (2005).
(46) UN Doc. S/RES/1497 (2003)
(47) Rome Statute, Art, 12(2).
(48) See , S. A. Williams, W. A. Schabas supra not 28,
pp. 573-574; " Prosecutor's Stratgy in Seeking the
Arrest of Sudanese President Al Bashir on Charges
of Genocide", Andrew T. Cayley, JICJ, 829-840,
Oxford, 2008. The LegalConsequences for states of
the Continued presence of South Africa in Namibia
(South West Africa) Notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion,
ICJ Reports, P 45., para. 89.
(49) M. Abdellah, “Arab Ministres Criticize ICC Sudan
Charges”, Reuters, 19 July 2008; “Sudan Arrest
Warrant for Sudan” s Al-Bashir, Muslim States urge
UN” AFP, 4 August 2008; S. Al-Tamimi, “ICC
Indictment of Omar Bashir “unwarranted” , Arab
News, 5 August 2008 “Three Arab Ministers Slams
ICC move Against Sudan President” Sudan
Tribune, 22 August 2008, see also, "The Request for
an Arrest Warrant in Al Bashir", Journal of
International Criminal Justice, 841-851, Oxford
University Press, 2008.; "On the Application of a
tHeory of Indirect Perpetration in Al Bashir, JICJ,
853-869, 2008.
(50) Rome Statute, Art. 58 (1).
(51) The standard of proof is “reasonable grounds”
versus “substantial grounds” See ICC – 05/02-
07/01-1 Corr, para. 28 (where the Chamber
interpreted this criterion on the European
Convention on Human Rights.
(52) Rome Statute, Art. 61(5); ICC-04/01-06/01-803-
TEN, paras. 38-39.
(53) What is meant by the term “issue” is what the Court
receives in an “issue” includes committing crimes in
a territory without a reference to specific persons.
The prosecutor examines the evidence in order to
file particular personal accusation. It has been
agreed to use this term to guarantee that the Court
would be used for political purposes. ICC-04/1-
06/01-8- Corr, unsealed pursuant to the Decision
ICC-04/01-06/01-37, para,9.
(54) Ibid., para. 10.
(55) For the legal reasons of rejection, see ICC-04/01-
520- Anx2, Paras. 86-89. (The Appeals Chmper
overturned this decision on the basis of a request for
leave to appeal submitted by the prosecutor. In turn,
Pre-Trial Chamber 1 Later issued a warrant of arrest
against Natganda. Yet, this conclusion should not be
negatively received; rather it shows the high degree Dirasat, Human and Social Sciences, Volume 38, No. 2, 2011
- 731 -
of judicial scrutiny applied even among the
chambers (Pre-Trial and Appeal).
(56) Rome Statute, Arts. 81, 82.
(57) Ibid., Art, 82 (1) (d).
(58) ICC-04/02-05/01-20-US-Exp, unsealed pursuant to
Decision ICC-04/02/05/01-52, Para. 19.
(59) See, Rome Statute, Art, 82(1) (d).
(60) Ibid., Paras. 24-55.
(61) For detailed analysis of the ICJ's advisory opinion,
see, Aljaghoub, Mahasen, "The Advisory Function
of the International Court of Justice 1946-2005"
Springer, 2006.
(62) Sudan Tribune, “Sudan to Request ICJ Opinion on
UNSC Authority to Refer Case to the ICC” , 29 July
2008; Reuters, “Developing Nations worried by
Sudan Indictment”, 29 July 2008.
(63) UN Charter, Art. 96 (1); see also Art 96 (2) and Art.
65 of the Statute of the ICJ.
(64) UN Charter, Art. 27, 18; H. Molser. Oellers –
Frahm, “Article 96” in B. Simma et al (eds), The
Charter of the United Nations; A Commentary, 2
nd., Vol., II, (Oxford OUP, 2002), p. 1183.
(65) Conditions of Admission of a State to Membership
in the United Nations (Article 4 of the Charter),
Advisory Opinion, ICJ Reports (1948), p. 61.
(66) Legality of the Threat or Use of Nuclear Weapons,
ICJ Reports 1996 (1), pp. 232-233; International of
Peace Treaties with Bulgraia, Hungary and
Romania, ICJ Reports (1950), p. 70, contra,
Application for Review of Judgment No. 273 of the
United Nations Administrative Tribunal, Advisory
Opinion, ICJ Reports 1982, pp. 333-334.
(67) Application for Review of Judgment No. 333 of the
United Nations Administrative Tribunal, Advisory
Opinion, ICJ Reports 1987, p 31.
(68) S. Rosenne, The Law and Practice of the
International Court, 1920-2005, Vol. I, (Leiden
Boston; Martinus Nijhoff, p. 287/
(69) See for eg., UN Charter, Arts. 10-11.
(70) Ibid., pp. 148-150.
(71) Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, Advisory
Opinion, ICJ Reports 2004, p. 148.
(72) Ibid,. Pp. 148-150.
(73) Frowein, Oellers-Frahm, “Article 65” in A.
Zimmemrmarn et al. (eds), The Statute of the
International Court of Justice: A Commentary,
(OXFORD: OUP, 2006), pp. 1415-1416.
(74) Questions of Interpretation and Application of the
1971 Montreal Convention Arising from the Aerial
Incident at Lockebie (Lib yan Arab Jamahiriya v.
United Kingdome) Request for the Indication of
Provisional Measures. Order of 14 April 1992, ICJ
Reports 1992, pp. 14-15; Naibia Advisory Opini.
(75) Concurring, N. Elaraby, “The Role of the security
Council and the Independence of the International
Criminal Court (Aldershot; Ashgate, 2001), p 44.
(76) PSC/MIN/Comm (CXLII), p.2., see also "The
Proceedings against President Al Bashir and the
Prospects of their Suspension under Article 16 ICC
Statute", Annalisa Ciampi, 885-897, JICJ, Oxford,
2008.
(77) OIC/POL-03/EXE-COM/2008/FC/FINAL, p.2.
(78) UN Doc. S/RES/1828 (2008).
(79) M. EL Zeidy, “The United States Drpped the
Atomic Bomb of Article 16 of the ICC Statute;
Security Council Power of Deferral and Resolution
1422”, 35 Vanderbilt JTL 1503 (2002).
(80) UN Doc. S/RES/ 1422 (2002); UN Doc.
S/RES/1487 (2003).
(81) Rome Statute, Arts. 17 in Conjunction With 19 (2).
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States urge UN” AFP, 4 August 2008
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Internet resources
Current situation in Darfur see international crisis group
website:
http://www.crisisgroup.org/home/index.cfm?id=3060&l
=1&gclid=CNfu8bHijpoCFYKB3godWTrBFQ.
Darfur Humanitarian Needs Profile No.34, January, 01, 2009
on
http://www.unsudanig.org/docs/090330%20DHP%2034
%20narrative%201%20January%202009.pdf
International Crisis Group website: on:
http://www.crisisgroup.org/home/index.cfm?id=3060&1
=1&gclid=cnfu8bhijpoCFYKB3godWTrBFQ
‘Sudan and Darfur Rebel Group Agree to Peace Talks’ in Dirasat, Human and Social Sciences, Volume 38, No. 2, 2011
- 733 -
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ICC-05/02-07/01-1- Court.
ICC-04/1-06/01-8- Corr, unsealed pursuant to the Decision
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ICC-04/01-520- Anx2.
Interpretation of the Agreement of 25 March 1951 between
the WHO and Egypt, advisory opinion, ICJ Reports
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Legal Consequences for states of the Continued presence of
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إحالة أزمة دارفور إلى محكمة الجنايات الدولية: منظور قانوني
ابراهيم الجازي ومحاسن الجاغوب*
ملخص
في 31 آذار 2005، اصدر مجلس اﻷمن الدولي قراراً برقم 1593 بشأن الوضع في اقليم دارفور السوداني، وذلك بإحالة
ملف هذا اﻻقليم إلى محكمة الجنايات الدولية. وفي 2009/3/4 قامت المحكمة بإصدار مذكرة اعتقال بحق الرئيس السوداني.
تعالج هذه الدراسة الردود الدولية تجاه هذه المذكرة ﻻسيما وان الرئيس السوداني مازال يتمتع بصﻼحياته الدستورية
كرئيس لدولة السودان. كما تركز هذه الدراسة على ما لهذه المذكرة من تأثيرات سليمة على سيادة الدول.
تستهدف هذه الدراسة بحث اﻷساس القانوني لشرعية مثل هذه الحالة وامكانية طلب رأي محكمة العدل الدولية في أهلية
مجلس اﻷمن ﻹحالة هذا الملف إلى المحكمة الجنائية الدولية.
الكلمات الدالة: محكمة الجنايات الدولية، دارفور، مجلس اﻷمن، إحالة، مذكرة اعتقال.
1
2
3
4
5
6
7
G.A Res. 164/43; G.A. Res. 44/39.
8
9
1991 YILC, Vol. II, Part One, Para. 57.
10
11
1992 YILC, Vol. II, Part Two, paras 121.
12
1993 YILC , Vol. II. Part Two. Paras. 74, 18, 112.
13
1994 YILC. Vol. II, Part Two, Art. 23, p. 43.
14
Ibid., p. 44.
15
G. A. Res. 49/53.
16
17
G. A.Res. 46/50.
18
19
Ibid., para. 133.
20
21
22
23
24
25
26
27
28
29
ICC -05/02-07/01-1- Court, Para, 16.
30
31
32
33
De Wet, Supra note 32, pp. 179, 184.
34
B. Confons, 3 rd rev. ed.,
35
See, UN Charter, Art 39.
36
37
38
39
40
41
42
See, supra note 36.,para 28.
43
44
45
UN Doc. S/RES/1593 (2005).
46
UN Doc. S/RES/1497 (2003)
47
Rome Statute, Art, 12(2).
48
49
50
Rome Statute, Art. 58 (1).
51
Th
52
Rome Statute, Art. 61(5); ICC-04/0
53W
54
Ibid., para. 10.
55
56
Rome Statute, Arts. 81, 82.
57
Ibid., Art, 82 (1) (d).
58
ICC-04/02-05/01-20-US-Exp, uns
59
See, Rome Statute, Art, 82(1) (d).
60
Ibid., Paras. 24-55.
61
For detaile
62
Suda
63
UN Charter, Art. 96 (1); see also Art 96 (2) and Art. 6
64
UN Cha
65
Conditi
66
Leg
67
Applicatio
68
S.
69
See for eg., UN Charter, Arts. 10-11.
70
Ibid., pp. 148-150.
71
Lega
72
Ibid,. Pp. 148-150.
73
Frowein
74
Questions
75
Concurri
76
PSC/MIN/Comm (CX
77
OIC/POL-03/EXE-COM/2008/FC/FINAL, p.2.
78
UN Doc. S/RES/1828 (2008).
79
M. EL Zeid
80
UN Doc. S/RES/ 1422 (2002); UN Doc. S/RES/1487 (2003).
81
Rome Statute, Arts. 17 in Conjunction With 19 (2).
________________________________________________
* كلية الحقوق، الجامعة اﻷردنية. تاريخ استﻼم البحث 2009/6/29، وتاريخ قبوله 2010/4/22. .
المواضيع المتشابهه:
رد مع اقتباس
المفضلات