International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo charged Sudanese President Omar al-Bashir with sponsoring war crimes and crimes against humanity in Darfur on July 14. The prosecutor is also expected to seek an arrest warrant for Bashir. This move fueled the tension between the ICC and Sudanese courts over the jurisdiction of the Darfur case.

It all began in March 2005 when the UN Security Council adopted Resolution 1593, in which it decided to hand over war crimes and crimes against humanity suspects in Darfur to the ICC. It was the first time for the UN Security Council to pass a resolution to start an ICC procedure to exercise jurisdiction over a state that is not a party to the Rome Statute, the ICC's founding treaty. Shortly thereafter, Sudan initiated domestic legal actions and arrested 15 military and police officers charged with arson, murder and looting in Darfur. It also set up a special criminal court to deal with crimes in Darfur in June the same year.

Since Sudan is not a state party to the Rome Statute, the document is not legally binding. But the statute puts forth four scenarios where the ICC can exercise its jurisdiction over non-state parties:

First, a non-state party issues a statement to accept the ICC's jurisdiction. For example, Côte d'Ivoire has accepted the ICC's jurisdiction over crimes committed since September 19, 2002. Like Sudan, Côte d'Ivoire has signed the Rome Statute but has not ratified it. With its acceptance, the ICC can exercise its jurisdiction over the state.

Second, citizens of a non-state party commit international crimes in a state party. Because crimes in Darfur are committed on Sudan's own territory, this scenario does not apply.

Third, citizens of a party state commit international crimes in a non-state party. This scenario does not apply either, because the crimes in Darfur are committed by Sudanese citizens.

Fourth, the UN Security Council adopts a resolution to initiate the ICC's jurisdiction. According to Article 13 of the Rome Statute, the ICC may exercise its jurisdiction if "a situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations." The ICC exercises its jurisdiction over the Darfur case according to this provision.

However, the ICC can only exercise complementary jurisdiction under the Rome Statute. Its preamble stresses that the ICC "shall be complementary to national criminal jurisdictions." Other provisions of the statute such as Article 1, Articles 12-15 and Articles 17-19 also highlight the complementary nature of the ICC's jurisdiction.