Three years of atrocities in Sudan - can the ICC prosecute beyond Darfur?

Over the past three years, 15 million people (a third of the population) have been displaced in Sudan's brutal conflict, where the human cost has been higher than that of Ukraine, Gaza and Iran combined. During this time, the International Criminal Court (ICC) completed its first trial for war crimes and crimes against humanity committed in Sudan; but this trial related to atrocities committed twenty years ago, in the 2003-04 Darfuri genocide. Should the ICC be able to prosecute cases of ongoing mass atrocity crimes in Sudan?

The ICC’s jurisdiction in Sudan stems from UN Security Council Resolution 1593, which referred the then-situation in Darfur to the Court in 2005. In December, we filed a Communication to the ICC Prosecutor with support from Hogan Lovells LLP and open-source intelligence (OSINT) evidence provided by the Centre for Information Resilience (CIR). In it, we set out how the ICC may have jurisdiction for atrocities outside Darfur, insofar as there is a sufficient link between the "situation" referred by Resolution 1593 (2005) and alleged new crimes. 

With no new Security Council referral in sight, and Sudan not being a party to the Rome Statute, Rights for Peace held an open discussion at Hogan Lovells' London office on 24 March, bringing Sudanese and international legal experts together to examine whether the 2005 referral continues to be valid today, and whether it extends to crimes committed outside Darfur, insofar as they have a sufficient link to the original situation of crisis that was referred by the Security Council to the ICC in 2005.

Danielle Flanagan of Hogan Lovells argued that it can, presenting the “sufficient link” doctrine that has developed in ICC jurisprudence. It is generally accepted that there is a sufficient link between the situation referred in 2005 and the ongoing violence in Darfur. The Rapid Support Forces' (RSF) origins in the Janjaweed militias, the continuity of command structures, and the recurrence of ethnically targeted violence all support such a link.

Rights for Peace Director Mariana Goetz unpacked the argument in relation to the continuity of territorial jurisdiction. It is relatively easy to accept temporal jurisdiction - there is a sufficient link between the situation in 2005, often referred to as the "Darfuri genocide", and recent atrocities in El Geneina (2023) and El Fasher (2025) that the UN Fact Finding Mission has described as "a genocidal campaign, targeting non-Arab communities". The augmentation of the ICC's jurisdiction, beyond Darfur to atrocities being committed in other parts of Sudan, is an extension of the same argument.

Mariana Goetz posited that the 2019 revolution slogan used by protesters that "the whole of Sudan is Darfur" was emblematic of systemic discrimination by both the RSF and SAF (previously the Janjaweed and SAF) and the targeting of non-Arab groups, and underpinned this argument. The conflict in Darfur today is connected to what is happening elsewhere in Sudan because the same actors are involved, the same patterns of conduct are deployed, with the same ethnic targeting of civilian non-Arab groups.

Our legal Communication to the Office of the Prosecutor, submitted on 3 December 2025, sets out that current atrocities taking place outside Darfur display the same core pattern of identity-based violence as was seen in 2003-04. In this context, the geographic expansion of the crisis is not a break from the past, but an extension of it. While our communication used the crime of persecution, as a crime against humanity, to show a simliar pattern of conduct, Mohamed Abdelsalam Babiker, UN special Rapporteur, added that common elements of war crimes could also be used to demonstrate this link.

Pubudu Sachithanandan from the Office of the Prosecutor of the International Criminal Court, who joined the event online_, wholeheartedly agreed with the temporal jurisdiction argument in the communication, noting the same actors and patterns of conduct in Darfur as in the original situation referred in 2025. On territorial jurisdiction, he indicated that the Office of the Prosecutor is “keeping an open mind”, noting that no firm position has been taken as their current focus is on mass criminality in El Geneina in 2023 and El Fasher in 2025, given that "this is what we have resources for”. He stated that the Office are taking the submission made by RfP with Hogan Lovells “into consideration” during their investigations.

The issue of resources was also raised by Abdallah Idriss, leader of the Darfur Diaspora Association (UK). It is clear that with further investigations, further resources are needed, along with continued support from the UN Security Council. In her briefing to the Security Council on 19 January 2026, Deputy Prosecutor Nazhat Shameem Khan explicitly called on states to provide "additional assistance and investment of resources" to support the court's investigative work in Darfur. This direct appeal underscores the current under-funding of the ICC at a time when the rule-based order is under threat. While the Darfur situation was referred by the Security Council, the UN has not assumed financial responsibility for its referrals - funding remains the responsibility of ICC member states.

For the ICC to proceed, the Prosecutor must seek a formal determination from the Pre-Trial Chamber on the scope of its jurisdiction. As confirmed by the Office of the Prosecutor, this could be done through a preliminary ruling, a step previously taken in the situation concerning the forced displacement of the Rohingya from Myanmar. Rodney Dixon KC urged the Prosecutor to take this course of action, to engage the Pre-Trial Chamber, as this would increase the spotlight on Sudan. With 15 million displaced and humanitarian access severely restricted, a clear judicial ruling could open the door to accountability for one of the world’s most severe and under-resourced crises.

"There has been an emphasis on Darfur for years, and rightly so. But civilians in other regions have been suffering egregious violence too, and this communication wanted to highlight that." - Mariana Goetz