To begin, the jurisdiction of the ICC in Sudan should be affirmed. To expand upon the explanation presented above, the ICC is granted jurisdiction in states by one of three methods:

1) The country is party to the 2002 Rome Statute, which created the court [1]
2) A government can ask the ICC to prosecute perpetrators [2] of genocide, crimes against humanity, war crimes, or the crime of aggression [3]
3) When the country is not party to the Rome Statute and has not requested the court to prosecute, the Security Council may refer crimes to the ICC under Chapter VII of the U.N. Charter [4,5]

Sudan is a member state of the U.N. [6] However, Sudan is not party to the Rome Statute: it did sign, but failed to ratify the document. As a result, the ICC was granted jurisdiction through the third method, where the Security Council referred the conflict to the ICC in 2005. [7]

The ICC clearly has rightful jurisdiction in Sudan. This fact, however, does not clearly indicate that the ICC does not undermine the sovereignty of the state. Sovereignty, as defined by Black’s Law Dictionary, or similarly in any other source, is “supreme dominion, authority, or rule.” If the ICC operates in Sudan, in spite of the Sudanese state’s rejection of its jurisdiction [8], the ICC clearly violates the “supreme dominion, authority, or rule” of the Sudanese state. In fact, the discussion of myth number three from PILPG states that, “the ICC does not unjustifiably undermine the sovereignty of Sudan. Rather, the ICC and this Application enforces the rights of African citizens and victims of the Darfur conflict.” PILPG therefore directly validates myth number three, that the “ICC undermines the sovereignty of African states,” instead of disproving it.

The myth PILPG should have set out to disprove is that the ICC “does not unjustifiably undermine the sovereignty” of African states. [Emphasis added.] If this had been the argument propagated by PILPG, the discussion about African states that have ratified the Rome Statute, requests by African states to investigate crimes, and the support of other African states and Sudanese organizations, groups, and citizens would have been relevant. However, in the discussion of whether or not the ICC undermines the sovereignty of African states, these supporting arguments are mere anecdotes and rationalization for a court that does, in fact, undermine the Sudanese state.

Determining when undermining a state is justifiable is a complex issue. In the case of Sudan, it would be quite difficult to make an argument against justification, considering the abuses of human rights that are evident there. One could even question Sudan’s sovereignty at a more basic level, as Sudan is generally considered to be a failed state, or at least nearing failed status. [9,10] If a state is failed, does it have sovereignty? Can its sovereignty be undermined? PILPG could and should have investigated these issues in its analysis.

[1] Rome Statute, Art. 12(1), available at http://www.icc-cpi.int/library/about/
officialjournal/Rome_Statute_English.pdf
[2] Id., Art. 13(a)
[3] Id., Art. 5
[4] Id., Art. 13(b)
[5] John Boonstra, How the ICC Came to Sudan. 23 July 2008, U.N. Dispatch, available at http://www.undispatch.com/archives/2008/07/how_the_icc_cam.php
[6] U.N. Member States, available at http://www.un.org/members/list.shtml#s
[7] Opheera McDoom, Sudan delays trial of Darfur suspect wanted by ICC. 8 March 2007, Reuters, available at http://uk.reuters.com/article/worldNews/idUKL0866461520070308?pageNumber=1&virtualBrandChannel=0
[8] Aziz El-Kaissouni, Sudan rejects ICC jurisdiction, says one suspect held. 27 Feb 2007, Reuters, available at http://www.alertnet.org/thenews/newsdesk/L27385823.htm
[9] Sudan Tops ‘Failed State Index’. BBC, 2 May 2006, available at http://news.bbc.co.uk/2/hi/africa/4964444.stm
[10] Opheera McDoom,ANALYSIS-Sudan a failed state? Depends where you live. 19 June 1007, Reuters, available at http://www.alertnet.org/thenews/newsdesk/L19515002.htm