Ministry of justice
II. Jurisdiction of The International Criminal Court over crimes committed in Darfur, Sudan
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| II. Jurisdiction of The International Criminal Court over crimes committed in Darfur, Sudan.
According to Article 13 on the exercise of jurisdiction, the four crimes referred to in Article 5 shall fall under the jurisdiction of the ICC, on condition that: (i) a State Party refers the alleged crime(s) to the Prosecutor under Article 14; (ii) the United Nation Security Council (UNSC) acting under Chapter VII of the UN Charter refers such crime(s) to the Prosecutor; (iii) the Prosecutor has initiated an investigation proprio motu by Article 15. Lacking such a legal basis, the ICC cannot exercise its jurisdiction concerning the mentioned crime. Regarding the case at hand, although Sudan is not a State Party to the Rome Statute4 The ICC may exercise its jurisdiction over the crimes committed in Darfur, Sudan, since the UNSC referred the situation in Darfur to the ICC in Resolution 1593 (2005) on 31st March 2005. To offer insight, international law is generally considered consent-based, and states must ratify a treaty to be bound by its provisions5. Under President Al-Bashir, Sudan signed the Rome Statute on 8th September 2000 but has not yet ratified it, therefore Sudan is not a State Party to the Rome Statute. Without the state’s acceptance, Sudan would not normally be subject to the ICC’s jurisdiction and its judiciary is qualified to try those accused of violations there. Nevertheless, Article 13(2) Rome Statute would make allowance for the Court to assert jurisdiction over crimes committed by an individual who is not a national of a State Party and when offenses are committed in the territory of a non-State Party if the Security Council refers the matter to the Court6. After the report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur (S/2005/60), the UNSC determined that “the situation in Sudan continues to constitute a threat to international peace and security”, and referred this situation to the ICC on 31st March 20057. According to Security Council Resolution 1564, the Commission aims to “investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred and to identify the perpetrators of such violations to ensure that the those responsible are held accountable”8. Although UNSC’s referral clashes with sovereignty doctrine, it is noteworthy that Sudan’s membership in the UN requires it to submit to the UN’s Charter, specifically the measures decided upon by the UNSC under Chapter VII9. With that in mind, it cannot object to the UNSC’s authority to refer Sudan to the ICC, thus giving the Court jurisdiction to try its President. All in all, the situation in Darfur was the first to be referred to the ICC by the UNSC, and the first ICC investigation on the territory of a non-State Party to the Rome Statute10. That being said, the jurisdiction of the ICC over the Darfur situation is not without controversy. The investigation in Sudan also encountered a major barrier due to the non-compliance of the African Union (AU). These countries consider themselves victims of continental discrimination as the ICC focuses only on crimes committed in Africa whilst making light of others. Thus, even when allowed to have Al-Bashir arrested, they refused to turn him over. Sudanese officials pointed to the US case as justification to oppose the ICC's investigation (the ICC has previously expressed an interest in investigating the US for crimes against humanity and war crimes). The US, in response, has threatened the ICC with sanctions and canceled the visas of ICC investigators11. Despite all this, It is still impossible to neglect or deny the intervention of an international authority, the situation in Sudan had escalated far beyond a simple matter and Sudan’s government had been proven to be incompetent in handling the situation and would potentially affect the international community. With that in mind, ICC must take action rather than just “sit and wait it out”. tải về 1.09 Mb. Chia sẻ với bạn bè của bạn:
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