The Referral of Darfur Crisis to the International Criminal Court: Legal Perspective

On 31 March 2005, the United Nations Security Council adopted Resolution 1593 referring the situation in Darfur, since 2002 to the Prosecutor of the International Criminal Court ICC. Such a referral is unprecedented in the ICC's short history. On March 4, 2009 the ICC issued an arrest warrant for Sudan's president, Omar alBashir. This article argues that being the first referral and subsequently the first arrest warrant issued against a sitting Head of State have triggered concerns and therefore was received differently among the States of the international community. A further major concern is the undermining of the states' sovereignty and the immunity and privileges of the head of states which might create tension and lack of cooperation among states. The aim of this article is to examine the legal basis and the legitimacy of the Security Council referral of the Darfur case to the International Criminal Court (ICC), the possibility of requesting an advisory opinion from the International Court of Justice (ICJ) on the competence of the Security Council to refer a situation to the ICC, The article also examines the request of International Criminal Court’s prosecutor to issue the arrest warrant against the sitting Sudanese President and its legal consequences. The research attempts to offer legal layouts for the complex situation in Darfur.