Although Sudan is not a party to the Rome Statute, Darfur fell under ICC jurisdiction in March 2005 after the UN Security Council referred the situation to the ICC prosecutor. The investigation has led to five ICC cases and heightened tensions.
Situation phase: 
Investigation – ongoing
Regions: 
Africa
Sudan is not a party to the Rome Statute and has had an increasingly fraught relationship with the International Criminal Court (ICC) since the 2005 UN Security Council referral of the situation in Darfur, Sudan to the ICC prosecutor. This referral was to investigate alleged crimes against humanity, war crimes and genocide committed since 2002 by Sudanese officials, Janjaweed militia and rebel forces.

Non-cooperation has prevented the ICC from executing arrest warrants for senior figures in the Sudanese government, including President Omar al-Bashir, who has sought to undermine the Court through the African Union. The UN Security Council has also consistently failed to provide the necessary support for the ICC investigation and has failed to take action on findings of non-compliance by ICC judges. While some civil society groups operate under repressive conditions in the country, the Darfuri diaspora is a driving force in the push for accountability. 

 

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Background
Humanitarian crisis as al-Bashir fights southern rebels Ethnic, religious and regional tensions set the stage for Omar al-Bashir to take power and declare Sudan an Islamic state after 1989, and from 2003 to at least 2008 an armed conflict took place in Darfur between the Sudanese government, its Janjaweed militia allies, and rebels in the Sudanese Liberation Movement/Army (SLM/A) and Justice and Equality Movement (JEM). In 2010, the UN estimated that up to 300,000 people had died due to the humanitarian crisis, and that 2.7 million had been displaced to camps in Darfur with another 200,000 driven to refuge in neighboring Chad. The two sides signed the Comprehensive Peace Agreement in 2005, creating an autonomous south for six years followed by a referendum on independence. South Sudan became an internationally recognized independent state in 2011. Meanwhile, the al-Bashir regime is alleged to be responsible for the commission of grave international crimes in the Blue Nile and South Kordofan states in its ongoing battle for control of the country. UN International Commission of Inquiry calls for ICC investigation of grave crimes in Darfur Allegations of grave international crimes have been made against all parties to the Darfur conflict. In January 2005, the UN Security Council received a report from the UN International Commission of Inquiry on Darfur establishing that Sudan, allied with Janjaweed militias, likely committed crimes against humanity, including murder, torture, enforced disappearance, sexual violence, pillaging, forced displacement and large-scale destruction of villages. It also found cases of murder and pillaging allegedly committed by southern rebel forces. The Commission recommended that the Security Council refer the situation in Darfur to the ICC prosecutor to investigate and identify cases for prosecution.
ICC situation

Darfur: first ICC situation 

In March 2005, UN Security Council Resolution 1593 (2005) determined that the situation in Darfur, Sudan constitutes a threat to international peace and security and referred the situation to the ICC—the first ever such referral to the Court. The ICC prosecutor received evidence as well as a sealed list of suspects identified by the UN International Commission of Inquiry on Darfur. After examining thousands of documents from a variety of sources, as well as interviews with over 50 independent experts, the prosecutor officially opened an investigation on 6 June 2005 into Rome Statute crimes committed in Darfur since 1 July 2002.  

Resolution 1593 garnered 11 votes in favor, none against, and four abstentions (Algeria, Brazil, China and United States) and “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the ICC. The prosecutor has been providing the Security Council with progress reports every six months. 

ICC issues arrest warrants for senior government officials and rebel leaders 

ICC arrest warrants have been issued for Sudanese government officials—including one charging President Omar al-Bashir with genocide—along with a Janjaweed commander. Summonses to appear have also been issued for high-ranking opposition rebels. Security risks in the country have largely limited the ICC's investigation to Darfuri diasporas.

Cooperation

Governments failing to arrest ICC suspects 

In reports to the Security Council, the ICC prosecutor has underscored the Council's failures to enforce the warrants arising from its referral. In 2014, the prosecutor announced the 'hibernation' of the investigation due to the lack of cooperation provided by the Council and UN member states. 

While several ICC member states have invited and welcomed al-Bashir in in their territories since his arrest warrants were issued, the Sudanese president's international travel has been greatly curtailed. ICC judges have referred several failures of ICC member states to comply with arrest and surrender requests regarding Darfur suspects to the Security Council as well as the ICC's governing body, the Assembly of States Parties. However, no further action has been taken by either body.  

Civil society advocacy

Darfuri activists and civil society have been at the forefront of a campaign throughout the Darfuri diaspora for accountability for grave international crimes in Darfur. International and local civil society groups have consistently called for the arrest of those wanted by the ICC, raising awareness among key global actors of their obligations under the UN Security Council referral and as ICC member states. 
 
Civil society has also called for the Security Council to follow-up on its ICC referral by ensuring cooperation between UN member states and the ICC and ensuring that the ICC has sufficient resources to undertake investigations and prosecutions. To this end, the Coalition urges states that are members of both the Security Council and ICC to lead the initiative to promote responsibility-sharing between the two institutions.

Campaign for global justice

ICC Rome Statute

Signed but not ratified (non-ICC member state)
08 September 2000

Kampala Amendments to Rome Statute

Crime of agression
Not ratified
Article 8
Not ratified

Agreement on Privileges and Immunities of the ICC

Neither signed nor ratified/acceded

National ICC legislation

Cooperation: 
No known efforts underway
Complementarity (national prosecutions): 
In progress, but stalled