On 7 January 2025, US Secretary of State Anthony Blinken determined that genocide has been committed in the ongoing conflict in Sudan. The last time the USA made such a determination in Sudan in 2004, it only covered Darfur. Following this, Security Council Resolution 1593 (2005) referred the Darfur situation to the International Criminal Court. However, even then, widespread ethnic persecution was being committed across Sudan in areas such as South Kordofan and the Nuba Mountains. Will this determination change anything with regards to international accountability for ethnically motivated atrocities being committed across Sudan?
The US genocide determination was accompanied by long-awaited sanctions against RSF leader Mohammad Hamdan Daglo Mousa, known as Hemedti as well as seven RSF-owned companies located in the United Arab Emirates. But, the International Criminal Court still continues to only have jurisdiction over just Darfur.
Victims of past crimes as well as the current ones agree that this conflict was enabled by a failure of accountability for the Darfur genocide 20 years ago. Lack of accountability has emboldened perpetrators, fomenting an ever-enabling environment for ethnically motivated violence.
The continued limitation of the ICC's jurisdiction to Darfur seems quite arbitrary in the context of the ongoing conflict that broke out on 15 April 2023. Beyond Darfur, civilians are being targeted as a result of a power struggle between the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF) .
Despite the actrocities and concerns about the intensifying famine in the Zamzam, Al Salam, and Abu Shouk camps in Darfur and the Nuba Mountains, all progress on Sudan at the Security Council has been stalled.
In November 2024, attempts to adopt a resolution on Sudan to protect civilians - penned by the United Kingdom and Sierra Leone - were blocked by Russia. The draft resolution did not go as far as to seek to establish a protection force, as the Council once had for Sierra Leone in Resolution in 1270 (1999). It merely sought to provide access measures to protect civilians. While China and the US both voted in favour of the draft resolution, which they deemed well founded, Russia found the proposal was "nothing short of an attempt [...] to interfere in Sudan’s affairs and engage in further political and social engineering, urging the UK to "abandon that neo-colonial thinking and not to try to contrive chaos in countries that are pursuing independent policies". Sudan's de facto government upheld its national sovereignty and asserted its would have its own plans to protect civilians.
While the impasse between Security Council permanent members is nothing new, support for the International Criminal Court is even less likely with the incoming Trump administration. A referral to the ICC, once possible for Darfur, is not even being raised.
In 2005, Security Council Resolution 1593, which referred the Darfur Situation to the ICC, was adopted with four abstentions, including the USA and China (along with Algeria and Brazil). The United States, then under President George W. Bush, was not a likely supporter of the ICC and undertook numerous anti-ICC measures, including over 100 Bilateral Immunity Agreements with other States, committing them to not surrender US nationals to the ICC if they were to be indicted.
US anti-ICC measures during the Bush era were largely protective of US service personnel, denying the Court's jurisdiction over non-party state nationals. The Trump administration is set on a much more destructive course. The Illegitimate Court Counteraction Act, adopted by the US House of Representatives on 9 January 2025 establishes a regime of sanctions against those "engaged in any effort to investigate, arrest, detain, or prosecute any protected person of the United States and its allies".
This applies to personnel, support or provision of services through freezing or seizure of assets, denial of visas or penalties. The administration's sanctions against the ICC, which would designate the Court as an organisation contrary to the national interests of the United States, are a response to the Court's arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Secretary Yoav Gallant for war crimes in Gaza. In 2020, the Trump administration issued sanctions against the ICC, protesting against the Court's investigation into war crimes committed in Afghanistan, where claims of torture perpetrated by American citizens were a defining feature.
Unfortunately, the Illegitimate Court Counteraction Act appears to be on course to becoming law, posing a direct threat to the ICC's ability to operate independently. This means that there will be no further Security Council referrals for the time being.
If we are to see the ICC's jurisdiction extended to the whole of Sudan, other legal routes will need to be identified. There is a remote possibility that the de facto Sudan government would want to see RSF leaders prosecuted and could itself accept the Court's jurisdiction. Alternatively, a third State could also refer Sudan to the ICC. A last resort could be a creative extension of the crimes committed in Darfur by the ICC Prosecutor, linking these to other parts of Sudan. In all scenarios, there still needs to be much more progress and international cooperation on arresting those already indicted by the Court for genocide in Darfur 20 years ago.