The Security Council Referral of the Situation in Sudan to the International Criminal Court - Ultra Vires or Misapplication?

Abstract

Although the United Nations Security Council power to refer a situation to the International Criminal Court and the theoretical relationship between the two bodies are legal in principle, the referral made in Resolution 1593 has clear discrepancies with the model shaped by the Rome Statute in terms of financing, temporal jurisdiction and immunity clauses. This has set a dangerous precedent which undermines the Rome Statute and threatens to continue in future. Moreover, whilst a complete and concrete definition of the peace and security that the Security Council is tasked with maintaining does not currently exist, it can be seen that ameliorating a humanitarian crisis falls squarely within this responsibility. The effect upon the existing humanitarian crisis in Sudan caused by the Security Council''s failure to act after Resolution 1593 was detrimental, accentuating rather than improving the lives of those it sought to protect. Thus, the Security Council did not fulfil its role under the United Nations Charter to maintain peace and security.