Vanderbilt Law Review

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In 2003, the world was shocked and horrified to hear of the widespread killing, torture, forced displacement, and other atrocities visited upon the people of Darfur in the Sudan by the Sudanese Armed Forces ("SAF") and Arab Janjaweed militias. The SAF and Janjaweed allegedly were fighting organized rebel groups, but instead of targeting the rebels, they attacked civilian towns and villages based on the rationale that the civilians supported rebel forces. The United States defined the killings as genocide and pushed the United Nations to develop a court to try and punish those who committed these terrible crimes. However, instead of creating a tribunal, similar to those created to prosecute the perpetrators of crimes in the Former Yugoslavia and Rwanda, in 2005 the United Nations Security Council chose to refer the crimes committed in Darfur to the International Criminal Court for investigation and possible prosecution. Although the situation in Darfur was not the International Criminal Court's first referral, it was the first initiated by the Security Council-which meant that, for the first time, the International Criminal Court could act with the full power of the Security Council behind it.

Three years earlier, in 2002, the International Criminal Court ("ICC") received its sixtieth ratification, empowering it to try those accused of "the most serious crimes of concern to the international community as a whole." These "serious crimes" consist of genocide, crimes against humanity, war crimes, and the crime of aggression. Despite the appalling pervasiveness of these crimes, the ICC has jurisdiction in only three instances: (1) if a State Party to the ICC refers a situation to the ICC Prosecutor, (2) if the Prosecutor initiates an investigation proprio motu, or (3) if the Security Council refers a situation to the Prosecutor pursuant to its authority under Chapter VII of the United Nations Charter.11 If the Security Council does not refer the situation to the ICC, then the ICC depends entirely on the cooperation of states to conduct investigations and trials.