UN Security Council Referrals to the ICC and the Principle of Legality

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On 1 November 2021, the Appeals Chamber (AC) of the International Criminal Court (ICC) rendered an interesting judgment relating to a jurisdictional challenge brought by the Defence in the case of Ali Muhammad Ali Abd-Al-Rhaman (“Ali Kushayb”). The challenge is noteworthy because it confronted the Court with novel issues of law relating to the basis and extent of its jurisdiction in cases of UN Security Council Referrals (as provided for in art 13(b) of the Rome Statute, RS). Even though it rejected all challenges, the AC did clarify important legal issues corrected some of the reasoning of the Pre-Trial Chamber II.

In essence, this decision is about the application of the principle of legality or nullum crimen sine lege before the ICC in situations in a non-party state referred to it by the UN Security Council (UNSC). The reasoning provided for in the judgment clarifies several pertinent issues regarding the basis, scope and extent of its jurisdiction in these cases. The fact that Judge Ibáñez’s expressed a separate opinion for the unanimous conclusion, as well as its broader implications for situations involving ad hoc declarations (Art 12 RS), illustrates the importance of a closer look. This is because in both situations, the UNSC referral as well as ad hoc declarations, the ICC is exercising jurisdiction over individuals who are neither nationals of a state party nor committed the alleged offence on the territory of a state party.

This post will focus on these issues in more detail. It will not review the rather uncontroversial findings regarding arguments around an alleged misinterpretation of the legal definition of “situation” in art 13 RS (paras 16-29), the issue of funding of UNSC referrals (paras 30-47), or the contention that UNSC Resolution 2559 (2020), which terminated the African Union-United Nations Hybrid Operation in Darfur, invalidated the referral and thus removed the ICC’s jurisdiction. All these challenges were rejected by the AC.

The Defence’s Argument: Sudan and UNSC Resolution 1593

The case is best understood against the backdrop of the first UNSC referral of a situation to the ICC. A UN fact-finding commission submitted a comprehensive report in January 2005, in which the authors ‘concluded that war crimes and crimes against humanity had been committed by members of the Government forces and the Janjaweed militia’ (para 78). For the first time, a referral to ICC was adopted in March of 2005 with UNSC Resolution 1593.

The judgment is the first in which the ICC had to directly deal with jurisdictional challenges brought in a case arising out of this referral (and not only address the controversial issue of immunities of heads of states, see discussions of the Jordan Appeal Judgement here).

The Defence contended that ‘the Court could not […] exercise the jurisdiction that the Security Council had intended to refer to it’ (para 79). The argument was essentially building on the absence of ratification of the Statute by Sudan. In light of the principle of nullum crimen sine lege, they argued that only crimes defined at the time of the offences in Sudanese national law, international law in force applied to Sudan or customary international law could be applied to Mr Ali Muhammad Ali Abd-Al-Rahman. Reviewing those sources of law, they found that none of those applicable sources of law defined the specific crimes stated in the warrants of arrest.

The AC rejected this argument as unpersuasive and used this opportunity to clarify some basic issues surrounding the ICC’s jurisdiction in situations referred to it by the UNSC.

Principle of Legality is Fundamental in International Law…

It first clarified that the general legal framework of the Statute also applies in situations referred to it by the UNSC under art 13(b) RS, referencing its statement in the Jordan re al Bashir Appeal (para 80). The AC also reiterated that it must do so ‘in a manner that is consistent with internationally recognised human rights as set out in article 21(3) of the Statute’ (para 83). In this respect, the doctrine of nullum crimen sine lege is fundamental in international law, the AC added and referred to art 11(2) of the UDHR and scholarly authorities on this question (para 84).

This line of reasoning follows what Marko Milanovic has concluded about the nature of the Rome Statute already in 2011 (here at 52). The article analysed the question of whether the provisions defining international crimes in the Statute are binding on individuals, i.e. whether they are substantive or jurisdictional in nature. Marko found that the Statute is best viewed to be substantively binding to individuals but only in cases of territoriality and nationality (see also AS Galand here). In cases where the ICC exercises jurisdiction on the basis of either a UNSC referral involving a non-party state or an ad hoc declaration, the Statute is only jurisdictional in nature (with respect to ad hoc declarations Talita de Souza Dias disagrees at 86). In those instances, the Court would need to establish whether the charges conform to custom (or have any other binding national or international source). As Talita pointed out, the nullum crimen principle prohibits substantive not (mere) formal retroactivity (here at 67). This means that only because the RS becomes binding formally after the relevant conduct, there is no violation of the principle in cases where its provisions are not interpreted beyond those of some other prior sources of law found, such as in CIL. To ensure the interpretation of the RS to this end, Marko suggests ‘reading down’ the Statute by reference to Art 21(3) and the principle of legality, just as the AC seems to have done in this case (For the issue of recharacterization of crimes and its consistency with the principle of legality see Talita de Souza Dias’ article here).

Invoking the requirement of legality under human rights law applying Art 21(3) RS, the AC adopts the standard that ‘a court may exercise jurisdiction only over an individual who could have reasonably expected to face prosecution under national or international law’ (para 85). Doing so, it explicitly refers to the jurisprudence of the ECtHR to place emphasis on the concepts of ‘foreseeability’ and ‘accessibility’ (para 85).

Customary International Law Status of Rome Statute is Not a Given

On this basis, the AC concluded that ‘for conduct that takes place on the territory of a State that is not a Party to the Statute, it is not enough that the crimes charged can be found in the text of the Statute.’ An interpretation consistent with human rights law requires a chamber to ‘look beyond the Statute to the criminal laws applicable to the suspect or accused at the time the conduct took place and satisfy itself that a reasonable person could have expected, at that moment in time, to find him or herself faced with the crimes charged’ (para 86). And because the accused is a national of Sudan, the alleged criminal conduct took place in Sudan and the fact that Sudan was not a Party to the ICC, ‘the crimes in the Statute were not directly applicable to Mr Abd-Al-Rahman at the relevant time’ (para 87). For the AC, the Pre-Trial Chamber’s erred in law when it found it unnecessary to ‘to make a determination as to whether and to what extent, at the time of their commission, the conducts charged against Mr Abd-Al-Rahman were criminalised by either Sudan’s national law or as a matter of international customary law’ (Pre-Trial Chamber decision para 42).

In conclusion, however, the AC did not find that the error of the Pre-Trial Chamber not to consider such a determination of the criminalized conduct as being in strict conformity with the principle of legality did have a material impact on the finding that the ICC may exercise jurisdiction. This is because, according to the AC, applying the foreseeability test, Mr Abd-Al-Rahman ‘was reasonably capable of taking steps to comprehend and comply with his obligations under international law, and he was capable of appreciating the attendant penal consequences’ (para 88, also 89). He was ‘in a position to know that his conduct could attract criminal proceedings relating to crimes under international law, which are represented in the Statute’ (para 91).

The reasoning of the AC is thus a bit ambiguous as regards the specific requirements to be satisfied regarding the principle of legality. The AC recognized that ‘only once a link is drawn with the charges in this case can the question of the legality of the charges be definitively answered’ (para 91). However, the AC did not have to go into any details as the Defence has not indicated any of the specific charges that Mr Abd-AlRahman faces that run afoul the principle of legality. So, it is not entirely clear what the AC’s bottom line here is. Must the Trial Chamber ascertain the CIL status of every charge as such (as suggested by AS Galand here at 955), or is the principle of legality satisfied when it was ‘reasonably foreseeable’ to the defendant that the respective conduct gives rise to international prosecutions of crimes within the jurisdiction of the Court, ‘even in relation to conduct occurring in a State not party to the Statute’ (para 89)?

Putting the AC’s arguments in context it seems to adopt some kind of presumption of foreseeability with respect to the crimes within its jurisdiction (depending on the specific circumstances of the conflict situation). The pronouncements cited above seem to suggest as much (‘relating to crimes under international law, which are represented in the Statute’). This is also why the AC emphasizes that the Statute’s definitions are ‘a product of a concerted effort to codify the developing state of international law so as to provide the clarity that was lacking in the preceding international tribunals’ intended to be ‘generally representative of the state of customary international law when the Statute was drafted’. This according to the AC ‘weighs heavily in favour of the foreseeability of facing prosecution for crimes within the jurisdiction of this Court, even in relation to conduct occurring in a State not party to the Statute’ (para 89). Still, the AC was uneasy to simply take the customary international law (CIL) status of the RS’s definitions of crimes as a given. Indeed, there are at least some aspects in those definitions where the CIL status is contested, that cannot be disregarded merely by reference to the intentions of the drafters.

However, the AC did not specify any particular CIL norm or other source of law with respect to the charges, so the standard to apply here seems to be a rather loose one. The AC simply and more generally stated that ‘[t]he charges subsequently brought by the Prosecutor against Mr Abd-Al-Rahman draw upon norms that were recognised globally, including in Sudan, and were fully ascertainable at the time of the conflict in Darfur’ (para 77). It thus does not seem to require a more detailed determination of the CIL status of specific charges.

Opinion by Judge Ibáñez

Interesting to note is the opinion by Judge Ibáñez, who disagreed with her colleagues on the question of the basis of jurisdiction of the ICC in this case. She takes the view that the referral merely ‘triggered’ the ICC’s jurisdiction because not only was the RS open to signature to all states, Sudan signed it on 8 September 2000 (para 92, 94). Therefore, the law was public and known for the accused and no issue of the principle of legality could arise. She also adds, for the sake of argument, that the prohibition of international crimes violating human rights has attained the status of a ius cogens norm (para 92).

This view seems to be based on the universal jurisdiction thesis, as proposed at the time to endow the ICC with universal jurisdiction. That this was rejected in Rome together with the reactions of states outside the Statute make this argument difficult to defend (See further on this here 110ff). As I (here at 104-105) and others (see de Souza Dias at 85-86) have pointed out the ICC as an international organization can only exercise powers conferred to it by states. In my view, UNSC referrals are thus best viewed as the conferral of powers to the ICC, so the legal basis for an exercise of jurisdiction (and the question of the substantive law) is determined by the UNSC resolution (see here at 49-53, similarly de Souza Dias at 86-88).

The issue of (retroactive) ad hoc declarations is more difficult to resolve. As Talita argues (at 88-89), there is a genuine norm conflict between the principle of legality and the substantive provisions of the RS in those situations, where ad hoc declarations seek to retroactively apply substantive provisions of the RS going beyond CIL. Here likewise Art 21(3) RS should be resorted to in order to solve this norm conflict.

Open Questions

Now that it is clear that the ICC recognizes this issue with the principle of legality, it will be interesting to see how it will approach the determination of CIL. This could be an important opportunity for the Court to authoritatively determine CIL in international criminal law, specifically taking into account developments regarding crimes against humanity and war crimes. Through it, the ICC will without a doubt contribute to the progressive development of international criminal law, which should be welcomed.

What the ICC did not resolve, however, is the question of prescriptive application of the Rome Statute for Sudan. Would the ICC still have to address the question of legality for crimes committed after 31 March 2005, the date the referral was adopted by the UNSC? The AC did not have to deal with this question as all confirmed charges against Mr Abd-Al-Rhaman deal with crimes allegedly committed before 2005. In case of ad hoc declarations this issue likewise does not arise because of the prescriptive jurisdiction of the delegating state leading to the acceptance of the substantive provisions in the RS as law binding on individuals. In the case of UNSC referrals, however, I have argued (here at pp 93-95 and 193-195) that would require interpreting the UNSC referral as legislating substantive international criminal law. For the reasons explained there, such an interpretation of the referral in question should not be assumed without any further basis in the text, especially because of the uncertainty about the UNSC’s powers to do so in the first place (similarly de Souza Dias at 86-88). To be sure, the ICTY in Tadic did not have any such concerns (see para 296), so the ICC will probably not question its competence on this either. But this would – at least potentially – constitute an ultra vires act by the UNSC and/or an ultra vires act by the ICC, as also Tladi seems to argue (here at 88).

In conclusion, I think this is a sensible approach by the AC to not just gloss over the issue of the principle of legality but to offer robust justifications for the exercise of the ICC’s jurisdiction in a non-party state. It also includes very welcome clarifications as regards the basis for its jurisdiction found in UNSC Resolution 1593 and not in a (difficult to construe) universal jurisdiction. With the opinion of Judge Ibáñez, however, it seems that this debate has not been fully laid to rest.

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DP190 says

November 14, 2021

Dear Gabriel,
Thank you very much for this tought proviking piece.
I just want to raise a comment, or should I say a concern of mine with resepct to the conclusion of the AC, according to which, in cases involving Non-state parties, resorting to the Rome Statue would not suffice. My concers is, that by resosrting to external legal resources, be it CIL or treaty law (such as the Geneva Conventions and the Additional Proctocol) - the ICC may de-facto create a dual legal system (the first applicable to state parties and their citiznes, the second for non-state parties). This, in my view, may undermine the coherence and unity of internaitonal criminal law, and the authority of the Court, which, in my view, shuold not look beyond the crimes enumerated in the Statute.

I would like to hear if you have any thoughts on this issues, and thank again for the informative and great piece.