Case Explained: Legal Limits for the ICC’s Jurisdiction over International Crimes Committed in Sudan – EJIL: Talk! – Legal Perspective

On 3 November 2025, the Office of the Prosecutor of the International Criminal Court (ICC) announced investigations into crimes allegedly committed in Darfur since the outbreak of hostilities in April 2023. This announcement comes as reports emerged from from El-Fasher, Northern Darfur, about mass killings, rapes, and other crimes.  On 7 November, UN High Commissioner for Human Rights Volker Türk warned of more atrocities in Darfur and called for ‘an immediate end to the violence both in Darfur and Kordofan’ emphasising that ‘[b]old and urgent action is required by the international community.’ Clearly, the unspeakable horrors unfolding in Sudan requires decisive action, including by the international community.

What is less clear is the legal basis for the investigations by the ICC in Sudan, which is not a state party to the ICC. While the UN Security Council (UNSC) referred the situation in Darfur, Sudan to the ICC, this was in 2005 and in a different context. The 2005 referral was the first time that Article 13(b) of the Rome Statute was triggered, which provides the legal basis in the ICC Statute for the Court to exercise its jurisdiction in non-party states.

The question arises as to whether legal grounds for ICC jurisdiction (after two decades since the referral) still exist considering the fact that Sudan has still not accepted the jurisdiction of the Court, and that the current conflict is not simply a continuation of the one that gave rise to the 2005 referral. 

This post explores the temporal scope of the UNSC referral in light of the practice of the Court tested against the legal nature of UNSC referrals under international law. I argue that the relevant test is that of a ‘sufficient link’ between the situation ongoing at the time of the UNSC referral and the one at issue. This is      the test adopted by the ICC in the past, but views among judges differ as to its application in concrete cases.  Since the nature and context of the original conflict is different from the current one, I argue that the ICC does not      in fact have jurisdiction over these crimes. A new UNSC referral would be required.

The Legal Nature of the UNSC Referral

Since it is the authorization by the UNSC that enables the ICC to lawfully exercise its jurisdiction (as I have explained in detail here; see also Galand who also discusses the competing approach based on universal jurisdiction, here), the starting point for an inquiry into its legal limits is the referral itself.

Under Article 13(b) of the Rome Statute, the UNSC may refer a situation to the ICC acting under Chapter VII of the UN Charter when it determines that international peace and security are threatened. The ICC then exercises jurisdiction over crimes committed within the scope of that referral. As myself      (here at 104-105) and others (see de Souza Dias at 85-86) have pointed out, the ICC, as a multilateral 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 not only the substantive law but also its temporal scope) is primarily determined by the UNSC resolution (see here at 49-53, similarly de Souza Dias at 86-88). 

Unfortunately, Resolution 1593 (2005) which contained the referral, is of rather limited use. It simply determined that: 

‘[The] situation in Sudan continues to constitute a threat to international peace and security,’ and ‘Acting under Chapter VII of the Charter of the United Nations, 1. Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court.’ 

It did not specify an end-date. So how to determine the temporal boundaries of a ‘situation’?

The ICC’s practice on the temporal scope of UNSC referrals

The ICC itself has only ruled on the temporal scope of a UNSC referral in a few instances. For example, the Pre-Trial Chamber found with respect to the Arrest Warrant against Al-Werfalli in the context of the 2011 Libya referral that the relevant ‘incidents occurring in Benghazi or surrounding areas between on or before 3 June 2016 until on or about 17 July 2017 are associated with the ongoing armed conflict underlying the referral by the Security Council […].’ (Arrest Warrant para 23). In that ruling, it referred to a previous decision where it held that in referring a ‘situation’, the UNSC      includes ‘crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis which was ongoing at the time of the referral’ (Mbarushimana para 16). 

Applying that standard to the      Libyan context was not straight     forward. The UNSC had referred the situation in      the territory of Libya since 15 February 2011 without an end date. The crimes at issue took place five years after the referral which was triggered in the armed conflict arising in the context of the revolution against the Gaddafi regime. At that time, the Gaddafi regime had already fallen. However, the Chamber concluded that 

‘the Al-Saiqa Brigade [of which the accused      ha     d been a member and in the context of which the crimes were committed] has been involved in this non-international armed conflict ever since the days of the revolution against the Gaddafi regime. Therefore the Chamber concludes that the alleged crimes described in the Application are sufficiently linked with the situation that triggered the jurisdiction of the Court through the Security Council referral.’ (Arrest Warrant para 23)

In the Al-Rahman decision of 17 May 2021, this test of ‘sufficiently linked to the situation of crisis which was ongoing at the time of the referral’ was confirmed (para 25). While that case arose out of the situation in Darfur, Sudan, it did not pose any difficult questions as to its temporal scope, since the crimes had occurred in the years 2003-2004,  so clearly covered by the referral that speaks of the situation ‘since 1 July 2002’ and was adopted in 2005. 

Majority vs Dissent on the “sufficient link” requirement

While the ‘sufficient link’ requirement has been applied in decisions so far, the majority and dissent in the Njeem Arrest Warrant decision diverged sharply on its interpretation in the context of crimes committed in Libya long after the initial situation of crisis, up to 2024. The majority concluded that the alleged crimes were sufficiently connected to the situation referred by the UNSC in 2011, emphasizing that Libya has experienced a continuous state of crisis since the uprising against the Gaddafi regime, with persistent violence documented by UN reports (paras 4 et seq). They noted that the Special Deterrence Forces (SDF/RADA) originated from revolutionary groups active during the 2011 conflict and later integrated into state structures, and that Mitiga Prison—where the crimes allegedly occurred—was established as part of post-2011 security arrangements. The majority also viewed the continued reporting by the Prosecutor to the UNSC without objection as reinforcing the ICC’s ongoing jurisdiction. 

In contrast, Judge Flores Liera dissented, arguing that the referral was triggered by specific acts of repression by the Gaddafi regime and cannot justify indefinite jurisdiction over unrelated subsequent conflicts. This was – in her view – apparent      from the text of the UNSC resolution 1970(2011) which referred the situation in Libya. In it, the UNSC 

‘condemn[ed] the violence and use of force against civilians’; ‘[d]eplor[ed] the gross and systematic violation of human rights, including the repression of peaceful demonstrators, express[ed] deep concern at the deaths of civilians, and reject[ed] unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government’. 

She also pointed out that the UNSC further ‘[c]onsider[ed] that the widespread and systematic attacks [at the time] taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’. (Njeem Arrest Warrant Dissent para 5).

Flores Liera’s dissent further stressed that later hostilities among new actors lack a direct temporal and contextual link to the original situation as required by the legal standard developed by the ICC. She contrasted this to the Al-Werfalli decision, where the sufficient link was found because the Al-Saiqa Brigade was party to the ‘original’ conflict, finding that this was not the case here (para 8). Furthermore, she warned that an expansive interpretation risks overstretching the Court’s mandate, particularly for non-state parties in situations referred by the UNSC. In particular, she identified      a more expansive approach adopted by the majority in this case compared to past findings in the context of State referrals. Here, she contended (in my view correctly) that 

‘[i]f anything, jurisdiction triggered on the basis of referrals by the Security Council, given their effects, should be interpreted within the strict limits of the resolution originating them, and not in a more expansive form compared to the Court’s jurisdiction triggered by a State referral.’ (para 13)

She also rejected the majority’s interpretation that periodic reports by the Prosecutor to the UNSC, and the absence of objections thereto, imply endorsement of an expanded jurisdiction for the Court. Judge Liera reasoned, also correctly in my view,     that the reporting obligation stems solely from Resolution 1970 (2011), which invited the Prosecutor to brief the Council on actions under that Resolution. Periodic reporting neither alters its scope nor validates ongoing jurisdiction (paras 14-15).

Critical Evaluation

In line with the ICC’s decisions so far, most commentators appear to have accepted the ‘sufficient link’ condition as the temporal limit to a referral without an end-date (see e.g. Galand, Prosperi). While it is not entirely clear whether the ICC distinguishes between a State Party referral (so-called self-referral) and a UNSC referral, Judge Liera pointed out that the latter certainly does not warrant a less stringent test of the ‘sufficient link’ requirement than the former. 

Considering the fact that the UNSC referral is the legal basis for the ICC’s authority in situations in non-party states (see above), the opposite might be true. Because the UNSC referral constitutes an exceptional mechanism that overrides the principle of consent, its scope should be interpreted more narrowly, and strictly confined to the terms of the originating resolution, rather than expansively extended to subsequent, unrelated conflicts. 

Along these lines, Judge Liera clarified in her dissent that 

‘referrals by the Security Council are not without limits. They are subject to the entire legal framework of the Statute and cannot be interpreted in a vacuum. A referral under article 13(b) of the Statute is necessarily linked to the context that originated it.’ (para 5)

As a result, and in line with case law and scholarship, what needs to be determined is the ‘situation’ that was ongoing at the time of the UNSC referral, and whether the current atrocities are sufficiently linked to it.

The ‘Sufficient Link’ in El Fasher and beyond

In the case at hand, the underlying conflict in Darfur that gave rise to the 2005 referral began in 2003 as a result of long-standing ethnic tensions, political marginalization, and competition over resources in Darfur, escalating when rebel groups accused the Sudanese government of neglect and were met with brutal counterinsurgency tactics involving government-backed militias. The 2005 Report of the International Commission of Inquiry on Darfur concluded that serious violations of international humanitarian and human rights law—including war crimes and crimes against humanity—had been committed, primarily by Sudanese government forces and allied Janjaweed militias. It also recommended a referral to the ICC. 

In some respects, the nature of the conflict and the actors involved in the current conflict have some similarities to the situation in 2005 in Darfur, Sudan. The current violence in Darfur, particularly the Rapid Support Forces’ (RSF) siege and capture of El Fasher in October 2025, has drawn comparisons to the atrocities of the early 2000s. The RSF, descended from the Janjaweed militias implicated in the original conflict, continues to target non-Arab communities using similar tactics—mass killings, rape, and starvation. This continuity in modus operandi, ethnic targeting, and regional focus arguably supports the view that the situation in Darfur is ongoing.

On the other hand, Sudan underwent a major political shift in 2019 with the ousting of President Omar al-Bashir and the formation of a transitional government that included both the Rapid Support Forces (RSF) and the Sudanese Armed Forces (SAF), even culminating in the formal declaration of the end of the Darfur War in August 2020. Then by 2023, a violent power struggle erupted between RSF and SAF, with the RSF—descended from the Janjaweed militias—emerging as a central actor in renewed atrocities in Darfur. One could therefore also argue that there is no such sufficient link to the original situation, since the RSF is a new actor and the context significantly changed and evolved in the past 20 years. 

As a result, I argue that the ICC does not enjoy jurisdiction over crimes committed in Darfur, Sudan in this more recent armed conflict. In order to have a solid legal basis, the UNSC would need to adopt a new referral for the ICC to be authorized to continue with its investigations. Alternatively, Sudan would need to accept the ICC’s jurisdiction under Article 12(3) of the Rome Statute, as Libya has done on 12  May  2025 with respect to alleged crimes in its territory from 2011 to the end of 2027.

Conclusion

The Darfur referral raises fundamental questions about the temporal scope of the ICC’s international criminal jurisdiction. While the Office of the Prosecutor      of the ICC has indicated that it views its mandate as continuing, the absence of explicit temporal parameters in UNSC Resolution 1593 creates legal uncertainty. Much of the ICC’s response will depend on its position as regards the legal nature of UNSC referrals, as explained in this post.      Different views appear to exist on this even among the judges of the ICC. I have argued in this post that considering fundamental principles of sovereign equality and consent, the ICC’s action in Darfur must have a solid legal basis in the UNSC referral. 

As violence resurges in Darfur, the need for accountability is as urgent as ever. However, one must not forget that the ICC’s legitimacy heavily relies on strict adherence to the rule of law, and it should be careful not to overextend its jurisdiction beyond what is legally justified. Any prosecutorial action must be grounded in a demonstrable and legally sound connection to the original situation referred by the UNSC, lest the Court risk undermining its credibility and the delicate balance between international justice and sovereign legal boundaries.