So this one really threw us for a loop.
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 occuring 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? Did the TIME reporter get an Enough Project report and mistakenly conclude it was an internal ICC memo? Or is there some other reason why the ICC, a court of limited jurisdiction and limited resources, would be spending the latter on an investigation that is clearly outside of the former?
Help us, Kevin Jon Heller, you’re our only hope!