3 December 2008
Security Council
SC/9516

Department of Public Information • News and Media Division • New York

Security Council

6028th Meeting (AM)


INTERNATIONAL CRIMINAL COURT PROSECUTOR SAYS SECURITY COUNCIL SHOULD BE PREPARED


FOR ‘UNITED ACTION’ TO ENSURE EXECUTION OF SUDANESE PRESIDENT’S ARREST WARRANT


Says Sudan’s President Pursuing Plan to Destroy Entire Groups of People,

Promoting Ceasefire He Does Not Implement, Promising Justice That Does Not Come


With the International Criminal Court set to decide next month on whether to issue an arrest warrant for Sudanese President Omar Al Bashir on 10 charges of genocide, crimes against humanity and war crimes, Prosecutor Luis Moreno-Ocampo urged the Security Council to be prepared for “united and consistent action” to ensure the warrant’s execution, should it be issued.


Presenting his eighth report to the Council on his investigation into the situation in Darfur, Sudan, pursuant to Security Council resolution 1593 (2005), Mr. Moreno-Ocampo noted that, while there had been various steps by Sudan’s partners to find a comprehensive solution to the Darfur conflict, Sudanese authorities had yet to take any.


President Al Bashir could have disarmed the militia, stopped attacks on civilians, returned land to the displaced, and surrendered Government Minister Ahmad Harun and Ali Kushayb, leader of the Government-backed Janjaweed militia, to the Court, he said.  Instead, he continued to implement his plan to destroy entire groups of people.  His criminal behaviour included providing immunity and concealing crimes, using the diplomatic apparatus, and campaigning against the Court in an attempt to convince organizations, as well as the Council, that he must be protected.


The international community could not be part of such a “cover-up”.  “Faced with genocide and crimes against humanity, we know that inaction and business as usual are part of the crimes”, Mr. Moreno-Ocampo asserted.  He urged the international community to listen to President Al Bashir’s victims, who were not afraid of justice.


Highlighting the four tracks the Council had identified for a comprehensive solution in Darfur -- peace, security, humanitarian aid and justice -- he said none could succeed in isolation.  Peacekeepers and aid workers should not be forced to work in an environment where the crimes they were trying to prevent were ordered by the President himself.  In such a scenario, their efforts would not be enough.  As long as arsonists were in charge, it did not matter how many firefighters were sent.


In the ensuing debate, Libya’s representative pointed out that the African Union’s Peace and Security Council had asked the Security Council to put off the process initiated by the Prosecutor, in line with article 16 of the Rome Statute, which allows the Security Council to suspend investigations or prosecutions for one year.  The African Union’s motives were to end human suffering, a prerequisite for the establishment of justice.  But justice could only be achieved in an environment of political and security stability.  He urged avoiding measures that could impede efforts to establish security and bring about a political settlement.


Striking a different chord, Costa Rica’s representative said that, in referring a case to the Court, the Council was committing itself to supporting any prosecutions undertaken by the Court.  Any party arrested by the Court would have the opportunity to exercise their full rights under the judicial process; however, that process was being thwarted.  He regretted the pressure that had been applied to the Council to suspend the warrants.  That pressure should be applied to the Sudan, and not the Council, to comply with the warrants.


Similarly, the representative of Panama said that, following the issuance of arrest warrants, no action had been taken by the Sudan.  “Impunity cannot and must not be an option”, he said.  In resolution 1593, the Council had unequivocally stated that the Sudanese Government must cooperate with the Prosecutor, and he remained concerned about Sudan’s lack of response.  He called once again on the Sudan to meet its responsibilities to the Court and the international community.  Indeed, a wish for change in how criminal actions were addressed on the international stage had animated the Council’s adoption of resolution 1593, and the measures required within that text should be undertaken, regardless of their impact.


Searching for a middle ground, South Africa’s representative asserted that the Court’s application to the Pre-Trial Chamber to issue an arrest warrant for Mr. Al Bashir had stimulated debate over ending impunity for crimes through judicial accountability, on one hand, and ending conflict through a sensitive peace process, on the other.  While he appreciated the Prosecutor’s need to implement the law without political considerations, he also recognized the Council’s duty to consider political imperatives in situations before the Court.


In light of steps by the African Union and others to ensure that peace and justice were mutually reinforcing in Darfur, he hoped the Security Council would “take the time needed” to reach a decision on whether to invoke article 16 of the Statute as it related to the Sudanese President.


He also asked the Prosecutor about his warning that the Council not be induced into protecting President Al Bashir and others under investigation.  If the Council discussed article 16 of the Rome Statute, as it applied to the case, would it be understood as attempting to “protect” parties and cover up what was happening in Sudan?


Responding, Mr. Moreno-Ocampo said that, as Prosecutor, he had pursued the evidence without fear.  His responsibility was to investigate crimes -- and the crimes he had seen in Darfur had the “particularity” of being committed by members of the Government using the State apparatus.


President Al Bashir had given the orders to commit the crimes under investigation, and had ensured the implementation of those orders by replacing Government officials who had refused them.  Further, he was promoting a ceasefire he did not implement and promising justice that did not come.  “This is what I saw according to the evidence.  This was my responsibility”, Mr. Moreno-Ocampo concluded.

The representatives of Belgium, France, China, Russian Federation, Italy, Burkina Faso, Indonesia, United States, United Kingdom, Viet Nam and Croatia also spoke.


Having begun at 10:15 a.m., the meeting adjourned at 12:30 p.m.


Background


The Security Council met this morning to consider the reports of the Secretary-General on the Sudan, and to hear a briefing by Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, on his eighth report regarding his investigation in the situation in Darfur, Sudan, pursuant to Council resolution 1593 (2005).  The report was issued at the outset of the meeting and, as yet, has no document symbol.


By resolution 1593, the Council refers the situation in Darfur to the Prosecutor, and invites him to address the Council every six months on actions taken pursuant to that text.


Briefing by Prosecutor


LUIS MORENO-OCAMPO, Prosecutor of the International Criminal Court (ICC), recalled that, one year ago, he had informed the Council that his Office would investigate those who bore the greatest responsibility for ongoing attacks against civilians in Darfur, and maintained Minister Ahmad Harun, a man indicted for war crimes and crimes against humanity, was in a position to commit crimes.  He had also informed the Council that he planned to investigate a third case focusing on the attack against African Union peacekeepers.


He recalled his briefing to the Council in June, during which he had described attacks against ethnic groups throughout Darfur, in villages and in camps for displaced persons, which had been pursued for five years.  Those acts had required the sustained mobilization of the Sudanese State apparatus, including the military, security and intelligence services; the integration of the Militia/Janjaweed; the coordination of the diplomatic and public information bureaucracies; and the control of the judiciary.  He had indicated that the case would be presented to the Judges by mid-July.


Continuing, he recalled his description ofprogress of the investigation into the murderous rebel attack against peacekeepers in Haskanita in September 2007, and reported again that the Sudan had taken no steps to arrest Mr. Harun and Ali Kushayb, against whom the Judges had issued arrest warrants since April 2007.  Finally, he had asked the Council during that June meetingto send a strong message to the Sudanese Government requesting cooperation and compliance.


The Council’s Presidential Statement 21 of 16 June 2008 indeed had sent a strong and united message, urging the Government and all other parties to the Darfur conflict to cooperate fully with the Court, consistent with resolution 1593 (2005), to end impunity for crimes committed in Darfur.  As announced on 14 July, he had requested Pre-Trial Chamber I to issue an arrest warrant against President Omar Al Bashir, on charges of genocide, crimes against humanity and war crimes.


He said the evidence had shown that, in March 2003, President Al Bashir had ordered attacks against the Fur, Masalit and Zaghawa peoples.  By stating that, “I want no prisoners or wounded, only scorched earth”, Mr. Al Bashir had triggered brutal attacks in the villages and camps for displaced persons.  At least 35,000 persons had been killed, some 300,000 had suffered a “slow death”, and thousands of women and girls had been victims of rape.  Some 2.5 million people in the camps today were subjected to conditions of life calculated to bring about their physical destruction.


Recalling comments made on 25 July, in response to that Application, by Presidential Adviser Bona Malwal that “we can’t be responsible for the well-being of foreign forces in Darfur”, and those of recent South Darfur Governor Adam Hamid Musa that there would be “more genocide like it has not seen before by anyone”, he said that such statements inciting violence against those deployed on the ground under the Council’s authority should be seen for what they were:  a confirmation of criminal intentions.


The Judges would rule shortly on that Application, he informed the Council, adding:  “It is time to be prepared for their ruling.”


On 20 November, he had presented to the Pre-Trial Chamber I the Haskanita case against three rebel commanders allegedly responsible for the war crimes of directing attacks against peacekeepers, murder and pillaging.  They had led forces of some 1,000 men with heavy weapons to attack peacekeepers of the African Union Mission in the Sudan (AMIS), killing 12 peacekeepers and severely wounding eight others.  Such attacks constituted “exceptionally serious offences” and struck at the heart of the international peace and security system.


In response to the Application, there had been reactions by five rebel groups, parties to the conflict, stating they were ready to collaborate with the Court and hand over any member of their movement, if requested. “Such words must be followed by actions”, as no one was above the law.  In the last year, the Sudanese Government had not heeded Presidential Statement 21, and genocide continued.


Further, he said more than 5,000 displaced persons died each month, noting that in Kalma camp on 25 August, Government forces had attacked civilian Furs.  Some 31 people had been killed and more than 65 had been wounded.  On 10 September, his Office sent a letter to the Government requesting information on national investigations under way in relation to those events.  There had been no response.  Moreover, in camps in Darfur, the Humanitarian Aid Commission, with Minister Harun’s remit, had recently halted mental health care for the displaced.  While the United Nations Assistance Mission for Iraq (UNAMI) tallied incidents of rape, President Al Bashir publicly stated on 7 October that “mass rape does not exist” in Darfur.  Some 300,000 people had been displaced since the start of the year.


Continuing, he said complementarity, a cornerstone of the Rome Statute, was an opportunity for each State to shoulder its primary responsibility to investigate and prosecute crimes.  Indeed, the “complementarity test” was straightforward in the present case.  Yet, there had been no change since June:  no national proceedings relating to the massive crimes investigated by the Court.  The Sudanese Government’s report circulated to the African Union and the United Nations on 17 September officially confirmed that.  It showed that, over the last five years, the Sudan had completed only seven cases, from dockets of ordinary courts, with no connection to the campaign of crimes coordinated by Ahmad Harun, perpetrated by Ali Kushayb and others.


Rumours of an investigation of Mr. Kushayb had not materialized, and Mr. Harun, as the Council knew, was still the Minister of State for Humanitarian Affairs of the Sudan, in charge of those he displaced.  The President had stated he would not hand over Mr. Harun to the Court.  Such impunity was “a direct message to all perpetrators of crimes in Darfur that the President will protect those who are following his orders”.


Crimes must be stopped, he emphasized.  For years, the Council had warned Sudanese authorities of the illegality of bombing schools and dangers of not disarming the Militia/Janjaweed.


The issue of disarming the local militias was especially important since their mobilization had allowed President Al Bashir for years to disguise the conflict as a tribal one that had nothing to do with State forces.  Sudan’s President had created the illusion of the militia’s and Janjaweed’s autonomy, helping him to continue to carry out genocide in the face of international scrutiny.


He noted that, to stop the crimes, the Council had repeatedly formulated key recommendations, including disarming the militia and the Janjaweed; ending air strikes against civilian targets; facilitating aid; and promoting accountability.  In response, Sudan’s Government had offered empty promises, which had been contradicted by their actions.  Indeed, as early as 19 June 2004, President Al Bashir had ordered a complete mobilization to disarm all illegal armed groups in Darfur, only to state the next day that that pledge applied only to bandits, and not the Popular Defence Forces, policemen or other tribesmen.


Continuing, he stressed that the list of such statements by the President and the Sudanese Government was “endless”:  on 15 September 2007, a ceasefire had been promised; three weeks later Sudanese troops and their allied militias killed more than 30 civilians in an attack on Muhagiriya.  On 19 December 2007, President Al Bashir described his Government’s unilateral commitment to a ceasefire in a public statement.  Within a month, aerial strikes had ensued against civilians in the villages of Abu Surouj, Sirba and Suleia.  On 27 October 2008, the Secretary-General had reported to the Security Council that the Sudanese Government had yet to stop aerial bombardments, to take steps to disarm the militia and Janjaweed, or to comply with its obligations under humanitarian law to protect civilians.  On 12 November, President Al Bashir pledged once again to commit to a ceasefire and disarm the Janjaweed, but, one week later, the Secretary-General said the United Nations was once again looking into reports of continuing aerial strikes.


“When it comes to justice, also, only words have been offered”, Mr. Moreno-Ocampo said.  While opening the Sudan People’s Initiative a month ago, the President had spoken of justice as a “paramount value… and the foundation of good governance” in announcing the Government’s commitment to establish the rule of law in all parts of Darfur, in order to do justice to the oppressed.  He had further spoken of his instructions to all legal bodies to continue performing their duties in Darfur towards finalizing legal procedures to guarantee the conduct of fair trials in total transparency.  But every day, there were reports of human rights defenders being arrested or tortured in Khartoum.  Three were arrested last week for giving information to the Court.


Stressing that so called “suspected ICC witnesses” had been arrested and tried for treason and that the Government sought such witness to silence them, he said “this is not how evidence is; this is how crimes are covered up”.


Noting that all of Sudan’s partners had advised that the only way forward was to take “concrete and concise steps”, he said Sudanese authorities had not taken any.  President Al Bashir could have disarmed the militia, stopped attacks on civilians, returned the land to the displaced, and arrested and surrendered Harun and Kushayb to the Court.  But he had not done so.  Instead, he continued to implement his plan to destroy entire groups.  His criminal behaviour further included providing immunity and concealing the crimes, using the diplomatic apparatus, and campaigning against the Court in an attempt to convince organizations, as well as the Council, that he must be protected.


He said the international community could not be part of such a “cover up”.  “Faced with genocide and crimes against humanity, we know that inaction and business as usual are part of the crimes”, he stated, urging the international community to listen to President Al Bashir’s victims, who were not afraid of justice.


Highlighting the four tracks the Council had identified for a comprehensive solution in Darfur, including peace and security, humanitarian aid and justice, he said none could succeed in isolation.  Peacekeepers and aid workers should not be forced to work in an environment where the crimes they were trying to prevent were ordered by the President himself.  In such a scenario, their efforts would not be enough.  As long as the arsonists were in charge, it did not matter how many firefighters were sent.


In response to the Council’s request for judicial intervention, he said he had investigated those bearing the greater responsibility.  The arrest warrants and the requests for such warrants had been made public.  There were no others.  Ahmed Harun and Ali Kushayb must be surrendered to the Court, and all parties to the conflict must respect the law.


He said the request for an arrest warrant for President Al Bashir was now in the Judges’ hands, emphasizing that the Council should be prepared; if the Judges decided to issue that warrant, united and consistent action to ensure its execution would be needed.  President Al Bashir would continue to deny his crimes, offering words and insisting on the Council’s protection.  But the international community could not conceal the crimes.  Nor could President Al Bashir’s crimes be ignored.


Finally, he quoted the words of the Minister for Foreign Affairs of Costa Rica, Bruno Stagno Ugarte, to the Council in June, saying “All we need is for the States members of the Security Council to… muster the political will to enforce the full compliance of resolution 1593 by the authorities in Khartoum.  Enough appeasement -– the time has passed to continue accommodating evil.”


Statements


GIADALLA A. ETTALHI ( Libya) thanked Mr. Moreno-Ocampo for his briefing, even if he did have criticisms of it.  Peace and justice were inseparable objectives, necessary to settle any conflict, in Darfur or elsewhere.  Justice could only be achieved in an environment of political and security stability, and, as such, the establishment of peace and security should be a priority, a prerequisite for upholding justice.  He urged avoiding any measures that could negatively impact efforts to establish security and political settlement.


Regrettably, what raised legitimate concerns was the step taken regarding the arrest warrant for Mr. Al Bashir, which had come at an extremely sensitive time when the deployment of hybrid forces had been activated and when further international efforts were under way to advance the political process.  The Prosecutor’s report spoke of the measures taken in line with resolution 1593 (2005), and he hoped for professional compliance with that mandate, and a comprehensive understanding of the complex situation, in order to ensure justice.  Indeed, many claims had been made, the foremost of which was the issuance by the Court on 14 July of an arrest warrant for Mr. Al Bashir, in a manner which gave the impression that the Government sought to obliterate its people.


Experience and concern for justice had taught that strong words did not contribute to finding solutions, or to establishing an environment of cooperation, he said.  Rather, strong words endangered cooperation among the Sudanese Government and UNAMID.  Cooperation could be achieved through calm exchanges, no matter how different the interpretations of “complementarity”.


While the report indicated that the Prosecutor had been actively involved with the African Union and the Arab League and the United Nations, it did not clarify the their concerns on the negative impact of the step taken against the Sudanese President, he said.  For example, the African Union Peace and Security Council decision had stated that, in view of the sensitive nature of operations in the Sudan, the Prosecutor’s request would undermine efforts made to swiftly find a solution to the conflict.  Such concerns should be taken into consideration.


In the same decision, African Union’s Peace and Security Council had requested the Security Council to put off the process initiated by the Prosecutor, in line with article 16 of the Rome Statute.  The African Union’s motives were to end human suffering, a prerequisite for the establishment of justice.  Other regional organizations, such as the Organization of the Islamic Conference and the Arab League, had expressed similar positions, and, as such, he called on the Council to take the initiative to respond to those positions.


There had been great momentum for establishing peace in Darfur, he said.  Decisions and recommendations had been greatly welcomed at national, regional and international levels, and had generated hope for peace in Darfur.  Upholding justice and fighting impunity had been foremost in such recommendations.  In closing, he reiterated Libya’s commitment to the principles of peace and justice, and its desire to prevent impunity.  He called on the international community, the African Union and the Arab League to continue efforts to find a solution.


JAN GRAULS ( Belgium) said serious crimes continued to be committed in Darfur and the information provided by the Prosecutor on them was alarming.  Yet, Sudanese officials had repeated once again that their Government did not intend to cooperate with the Court or to hand over the two indictees.  Noting that the report contained detailed information on the charges against President Al Bashir, he said his delegation was “extremely concerned” about the information on the systematic application of the State apparatus towards genocide.  The State’s policies, some of which aimed at methodologically starving the population of Darfur, should be either confirmed or disproved by a judicial process.  The Government’s response should be serious and should not be limited to denials.  The judicial process had to continue in total independence.  The population in Darfur could not continue to live in an environment in which impunity reigned.


Turning to the Court’s third area of investigation, he said attacks on peacekeeping personnel had to be prosecuted in conformity with the Rome Statute.  He thanked the Prosecutor for clarifying the concepts of complementarity and admissibility, noting that the aim of complementarity was to confirm whether a national Government was investigating and prosecuting crimes.  In that case, it was incumbent on the Sudanese Government to appear and detail evidence on its behalf, if it felt such national investigations currently existed.  Any such argument could not be made through the media, but must proceed only through the legal process.


He stressed that the Court should be allowed to do its work in complete independence.  The Government of the Sudan must cooperate with the Court and its Prosecutor, as called for in resolution 1593.  It must arrest and hand over the two indicted individuals.  All parties to the conflict should uphold humanitarian and human rights law.  The Council must not tolerate any threats against humanitarian workers and peacekeepers in Darfur, which might ensue if Sudan’s President was indicted.  The Council would be discrediting itself if it allowed itself to be manipulated by blackmail.  Belgium supported the creation of travel restrictions and other measures against those individuals who had been indicted by the Court.


JEAN-MAURICE RIPERT ( France) recalled that in 2005 the Council had referred the situation in Darfur to the Court, and, indeed, the Prosecutor’s most recent quarterly report confirmed that serious, repeated crimes falling under the Court’s jurisdiction continued in Darfur.  The Rome Statute’s preamble stated that crimes such as those threatened the world’s well-being, and that the most serious crimes should not go unpunished.  The Council had adopted resolution 1593 (2005), as the struggle against impunity was inseparable from restoration of peace in Darfur.  The Council was carrying out its mission, in line with the United Nations Charter.


Noting that three investigations had been opened, he said the first had led to arrest warrants for Mr. Harun and Mr. Kushayb.  The second had led to the arrest warrant against the Sudanese President, while the third had allowed for war crimes charges against three rebel chiefs responsible for the Haskanita attacks.  On the first investigation, the Sudan had not cooperated in the arrest warrants for Mr. Harun and Mr. Kushayb.  On the two other matters, the Council awaited the Court’s outcome.  No procedure had begun in the Sudan regarding those matters.


France was dedicated to the authority of the Council and the Court, he said.  The responsibility for the present situation devolved neither on the Council nor on the Court and its bodies, to which the Council had entrusted a mission that the Court was undertaking.  Sudanese authorities had the responsibility for following up on the warrants against Mr. Harun and Mr. Kushayb.  Indeed, they could prosecute those two individuals.  Moreover, they bore responsibility for obstacles to the international deployment of humanitarian operations in Darfur.


There had been progress with the deployment of UNAMID and with the resumption of diplomatic relations with Chad, he said.  However, such actions did not demonstrate a “radical change” of Government attitudes, as attacks continued.  The Janjaweed were not concerned.  For their part, the rebels must seek a diminution of violence and resumption of the political process.


Recalling the Council’s presidential statement of 16 June, in which the Council noted the sending of warrants to the Sudanese Government and the opening of other investigations, he said that statement remained fully valid.  Sudan’s questioning of the Council’s authority was not admissible, and he reminded the Sudan to respect Council resolutions and cooperate with the Court under resolution 1593.  The Sudanese Government must cooperate with the Court, as well as with all States and relevant regional and international organizations.


ZHANG YESUI ( China) said the question of the Sudan covered two parts -- the question of the north-south relationship and the conflict in the Darfur region –- and the overall situation was complex and very tough.  Currently, the international community was focused on whether peace could be maintained in Darfur and if the largest peacekeeping mission in history could be implemented in such a way that the hoped-for results were achieved.  Today, the peace process was at a significant point and the question of whether peace could be achieved was of great importance to the region and the African continent as a whole.  Regional conflict usually led to massive rights violations and widespread criminality.  In cooperative efforts to address such “hot spots”, emphasis had typically been put on ending impunity.  But such efforts should be made with the ultimate aim of ending conflict and restoring peace.  According to international judicial process, ending impunity had been undertaken in an orderly manner and in scenarios where peace had been established.  That ensured that the judicial process was preserved from political interference.


He said the International Criminal Court manifested global aspirations for pursuing international justice and, as such, needed support from all nations.  Last July, the Court’s Prosecutor had announced that he was seeking an arrest warrant for the Sudanese President.  Many States were concerned that that move would negatively impact the prospects for peace in the Sudan, particularly since the Sudanese Government was making efforts to end impunity through national proceedings.  Further, it was making new efforts, including by cooperating with the United Nations peacekeeping mission.  It was also supporting the chief negotiator in his efforts to promote negotiations and his announced ceasefire.  Stressing that China supported the efforts of the international community to achieve peace in Darfur, he appealed for the creation of a situation in which the efforts of all sides were virtually interactive and supported the peace process in the Sudan.


VITALY CHURKIN ( Russian Federation), thanking Mr. Moreno-Ocampo for his report, said his briefing contained both “analytical and emotional sentiments”.  His delegation profoundly regretted the information in the report.  It was clear that conflict could be stopped by a process of political settlement for the region.  That included ensuring the effectiveness of joint operations.   There was a great responsibility that devolved on the Council, and a need for a balance between personal responsibility and the interests of the peace process, he said.


Previously, the Russian Federation had taken note of the importance of objective assessment, he explained.  Noting the need to clarify the situation regarding peacekeepers in Haskanita, he said that, despite difficulties in that investigation, it was important to step up work vis-à-vis rebel factions.  The Prosecutor’s decision to issue an arrest warrant for Sudanese President Al Bashir had caused concern for the League of Arab States.  He fully understood that position.  At the present stage, it would make sense to focus on restoring dialogue and trust among involved parties.  Those steps, undertaken by Sudan’s side and falling under the Court’s jurisdiction, should be encouraged.  For its part, the Russian Federation would continue to do all to establish peace in Darfur.


GIULIO TERZI (Italy), reiterating his country’s full support for the International Criminal Court and its Prosecutor, said it understood the difficult circumstances under which the Prosecutor conducted his work.  More than three years had passed since resolution 1593 (2005) had been adopted.  Today, the Council was being told once again that violent crimes, including heinous actions against women, continued with impunity.  It was clear that a more effective approach to the conflict, encompassing the protection of humanitarian workers and peacekeepers, was needed more than ever to contribute to peace.


Towards that goal, he welcomed the Prosecutor’s actions to respond to attacks against African Union peacekeepers and strongly condemned all attacks on peacekeepers and aid workers.  He stressed that resolution 1593, which required that the Sudanese Government and all parties to the conflict cooperate with the Court, must be fully implemented.  The fact that two arrest warrants had not been implemented suggested such cooperation was insufficient.  Italy had repeatedly called on the Sudan to arrest the subjects of the warrants.  The Security Council should carefully and promptly consider the issue of individual sanctions against those individuals for whom arrest warrants had been issued.  Fighting impunity was an important goal of the international community, but it had yet to be translated into practice.


Noting that the work of the International Criminal Court was intended to take place where a State’s response to criminal actions was lacking, he emphasized that all States were under the obligation to respond to crimes committed in their territories.  It was still possible for the Sudan to prove that it could prosecute those committing such criminal acts, in its own courts.


MICHEL KAFANDO ( Burkina Faso), thanking the Prosecutor for his eighth report, said it was now true to say that the situation in the Sudan was of “vital concern”.  Attacks against civilians and peacekeepers were unacceptable and, given such a complex conflict, the international community must show “ingenuity and courage” to find a comprehensive political solution.  He welcomed international efforts of the United Nations, the African Union and other States, including Qatar, to help the Sudanese to escape their current situation.  He also welcomed the efforts of the United Nations-African Union mediator, and those involved with UNAMID.  The Sudanese side had also made major commitments to find a solution; however, it must be encouraged to show more courage and sacrifice.


Reaffirming Burkina Faso’s dedication to combating impunity and advancing equality for all in the Sudan, he said such efforts were the only way to ensure justice for the thousands of victims.  The search for a political solution and administration of justice was hardly contradictory.  His country, reaffirming its full support for the Court, believed its activities must be marked by the “greatest possible caution”, and constitute part of the prosecution of the guilty, in line with resolution 1593 (2005).  He urged avoiding any action that would diminish confidence and polarize the parties’ positions -- anything that would scuttle the political process and UNAMID’s deployment.  He called for a dispassionate evaluation of the situation and for ensuring that justice was done.


He invited the Government to cooperate in the prosecution of those recognized as guilty of war crimes, among other crimes, in the effort to combat impunity.  For its part, the Security Council must continue to closely follow events in the prosecution, and could not discard any solution; it must be ready to listen to all, including the African Union.  The Union had always reaffirmed its conviction that, to achieve lasting peace in Darfur, there was a need to bring to justice to human rights perpetrators in Darfur.  It had insisted on the need to preserve the integrity of all political and judicial processes.


JORGE URBINA ( Costa Rica) said the International Criminal Court undoubtedly represented a “transcendental step” in strengthening international law.  On other occasions, Costa Rica had underlined its intention to represent the interests of more than half the United Nations Members which, as small States, relied on strict observance of international law for their territorial integrity.  On that basis, it had welcomed the Court’s creation and worked towards its institutional strength.  The Court aimed to protect the interest of innocent victims of “barbarism”.  Fortunately, the Council, acting under Chapter VII, had adopted resolution 1593 in 2005.  At the time, it was aware that it was testing the Court, as well as itself.  In referring a case to the Court, the Council was committing itself to supporting any prosecutions undertaken by the Court.


He stressed that any party arrested by the Court would have the opportunity to exercise their full rights under the judicial process.  That process, however, was being thwarted.  The Court had issued arrest warrants against two individuals who continued to occupy important posts in the Sudanese Government.  He regretted the pressure that had been applied to the Council to suspend the warrants.  That pressure should be applied to the Sudan, and not the Council, to comply with the warrants.  It was time for the Council to examine subsequent steps to proceed with the arrest warrants and to ensure implementation of its 1593 decisions.  In doing so, it could not exchange Sudan’s support for UNAMID’s deployment for impunity.  Nor could it simply call for more cooperation with the Court as that cooperation continued to be zero.


“We cannot be happy with the adjustments for the UNAMID deployment while saying nothing about the deterioration of the conditions in Darfur”, he said.  While the implementation of the arrest warrants was up to the relevant State, responsibility also rested with the international community.  The Council could not be satisfied with holding a meeting every six months.  It was time to finally bring about cooperation with the Court.  Indeed, the Council should not give into the voices that said the peace process was being impeded by the work of the Court.  It was true that there could be reprisals in the Sudan if an arrest warrant was issued for President Al Bashir, but true peace would be closer at hand if justice was done.


Saying there could be no “arm wrestling” between the Court and Council, he suggested that the latter investigate a process for implementing the arrest warrants.  Faced with a State that was not able or did not want to protect its people, the Council had to ask how long it would continue to consider that situation before concluding it had a duty to protect.  Underlining Costa Rica’s concern about Sudan’s response to attacks against humanitarian workers, he said his country rejected and condemned any such attacks.


HASAN KLEIB ( Indonesia) said the security and humanitarian situation in Darfur remained worrying.  Indonesia strongly condemned all gross violations of human rights and international law, and war crimes and crimes against humanity.  He deeply regretted information in the Prosecutor’s report about the ongoing crimes by all parties and the lack of progress in establishing cooperation between the Court and the Sudanese Government.


On such cooperation, he reasserted the importance of viewing it from a “broader perspective” and approaching it in the context of a search for a comprehensive solution to the situation in Darfur, which comprised four dimensions:  political; peacekeeping; humanitarian; and legal.  All were mutually reinforcing and needed mutual cooperation, rather than division.  He agreed with the importance of striking a balance between pursuing justice and maintaining peace and security.


Recalling the presidential statement of 16 June, he said Indonesia reasserted that implementation of resolution 1593 and actions by the Prosecutor should neither nullify the principle of complementarity nor absolve Sudan’s national court from its responsibilities.  In line with the African Union’s Peace and Security Council communiqué of 22 September and the “Package Solution” offered by the Arab League, he urged the Sudanese Government to take concrete steps to bring to justice perpetrators of gross human rights violations in Darfur.  In the context of implementing the principle of complementarity, he agreed with the African Union and the Arab League on the need for an accountability mechanism.


The issuance of arrest warrants for war crimes in connection with crimes against peacekeepers and humanitarian personnel at Haskanita was a significant step that needed further action by the Court, he said, stressing also that the continued cooperation of all armed rebel movements was essential.


ROSEMARY A. DICARLO ( United States) expressed her country’s grave concerns over the situation in Darfur, where the humanitarian situation remained dire.  The United States supported the work of the chief negotiator.  It noted with interest the announcement by the Sudan of a ceasefire, but remained concerned over continuing violence.  Saying the United States was steadfastly committed to upholding international law and would continue taking a leadership role in that regard, she welcomed any actions to bring those responsible for crimes to justice.  The international community could not ignore the atrocities -– which the United States had declared was genocide -- unfolding in Darfur.  She noted that the Security Council Sanctions Committee had the power to restrict the movement of those responsible for the atrocities in Darfur, and she urged that Committee to use the tools at its disposal to help curb violence in Darfur.


DUMISANI S. KUMALO ( South Africa), thanking the Prosecutor for his important work, said that, since the last report, an event had taken place that required examination of the Rome Statute:  the application to the Pre-Trial Chamber for the issuance of an arrest warrant for the Sudanese President.  That sensitive matter had stimulated debate on finding a balance between ending impunity for international crimes through judicial accountability, and the realities of ending conflict through a sensitive peace process.


He said that the drafters of the Rome Statute had been aware of such political and legal considerations, which had resulted in their recommendation that the Security Council be given powers to balance the principles of peace and justice, should the situation on the ground demand it.  He appreciated the Prosecutor’s need to implement the law without political considerations; however, he recognized the Council’s duty to consider political imperatives in situations before the Court, and whether the Council found it meritorious to request the Court to defer prosecution.


The African Union Peace and Security Council had advised the Security Council on 31 July to request the Court to defer the case against Sudanese President, he said.  The Peace and Security Council had stated that approval by the Pre-Trial Chamber of the Prosecutor’s application could seriously undermine efforts to find an early resolution to the conflict in Darfur and could lead to further suffering.  The African Union’s Council was not advocating for impunity:  it invited the establishment of a high-level panel to examine the situation in-depth and make recommendations on how best to address issues of accountability, impunity, and reconciliation.  It further had urged the Sudanese Government to take steps to investigate human rights violations in Darfur and bring perpetrators to justice.


In light of such steps, he continued to hope that the Security Council would take the time needed to reach a decision on deferring article 16 of the Statute as it related to the Sudanese President.  South Africa would remain fully committed to the Court’s work.  He advocated for the application of the Rome Statute in resolving peace and justice challenges.  Indeed, article 16 had been conceived for the precise situation faced today, but it could best be applied prior to issuing the arrest warrant.  The Court was central to ending impunity for international crimes and establishing conditions under which the rule of law could be maintained.


Acutely aware of the Prosecutor’s challenges, arising from the fact that the Court did not have an army to enforce arrest warrants, he said the Council bore the responsibility to demand cooperation of States, particularly in cases it had referred to the Court.  He expected the Government and all parties to cooperate with the Court.  In closing, he asked the Prosecutor about his warning to the Council not to be induced into protecting President Al Bashir and others under investigation.  If the Council discussed article 16 of the Rome Statute, as it applied to the case, would it be understood as attempting to protect -- or induce -- in the cover-up of what was happening in the Sudan?  That should be made clear.


RICARDO ALBERTO ARIAS ( Panama) said that through resolution 1593, the Council had taken the step of referring a case to the International Criminal Court for the first time.  The Court’s response had been rigorous.  Nevertheless, following the issuance of arrest warrants, no action had been taken by the Sudan.  “Impunity cannot and must not be an option”, he said.  Indeed, in resolution 1593, the Council had unequivocally stated that the Government of the Sudan must cooperate with the Prosecutor.  His delegation remained concerned about Sudan’s lack of response.  He called once again on the Sudan to meet its responsibilities to the Court and the international community.  The States parties to the Rome Statute had wished to mark a change form the past in how criminal actions were dealt with on the international stage.  That same wish for change had animated the Council’s adoption of resolution 1593.  The measures it required should be undertaken, regardless of their impact.


He welcomed the Prosecutor’s report, particularly noting the expressions by the five rebel groups of cooperation with the Court.  He stressed that humanitarian workers should be allowed to carry out their noble mission without being subjected to indiscriminate attacks.  To achieve the objectives of resolution 1593, the Sudanese Government had to meet its obligations.  The Security Council had to be united, as well.  Hopefully, mediation by Qatar would also help establish an environment of peace and justice.


KAREN PIERCE ( United Kingdom) remained strongly supportive of the independent judicial role of the Court and the Prosecutor’s efforts to combat impunity.  Perpetrators of serious crimes should be brought to justice, as that was essential to achieving peace in any part of the world, including Darfur.  She also welcomed the Prosecutor’s engagement with United Nations regional bodies, notably the African Union and the League of Arab States.


She said her delegation was deeply concerned at reports of crimes against humanity and war crimes, including murder, rape and forced displacement.  There were reports of rape of girls as young as five years old.  She commended the Prosecutor’s efforts to monitor those crimes, and condemned attacks on humanitarian workers and peacekeepers.  She called on all parties to refrain from further acts of violence.


She was strongly concerned at comments by high-level members of the Sudanese Government expressing concern at the safety of peacekeepers.  The Government should be in no doubt about its responsibility for the safety of humanitarian personnel, and she hoped it would affirm its responsibility in that respect.


The Council had adopted a statement calling on the Sudan to cooperate fully with the Court, and that statement stood, she said, recalling that in the 18 months since arrest warrants had been issued for Mr. Harun and Mr. Kushayb, there had been no progress.  She called for executing those warrants.  She noted calls by Council members to defer the Court’s investigation; however, she saw no justification for suspending the Court’s work in Darfur.  The onus was on the Government to take concrete action to cooperate with the Court and achieve peace in Darfur.


HOANG CHI TRUNG ( Viet Nam), noting all of the activities undertaken by the Prosecutor, as outlined in his report, said his country was concerned about continuing violence in Darfur and supported efforts to investigate those crimes.  Stressing the need to fully implement resolution 1593, he said his delegation supported Sudan’s efforts to step up its national investigations of criminal activities.  Fighting impunity for violations of humanitarian and international human rights law was part of the overall process of achieving peace in the Sudan.  Indeed, combating impunity and pursuing peace were interlinked.


He said his country also shared the view of the Arab States, as presented in the solution offered by the Arab League and the Government of the Sudan.  He welcomed the announcement of a ceasefire by the Sudan, further encouraging all parties to abide by it and participate in negotiations for peace.  He cautioned against “unduly coercive” measures that might complicate the situation in Darfur.  He also called for further cooperation by the Sudanese Government and other parties to the conflict, as well as by the International Criminal Court.


NEVEN JURICA (Croatia), speaking in his national capacity, thanked Mr. Moreno-Ocampo for his briefing and noted that that “disturbing” report had conveyed a lack of progress in dealing with those responsible for atrocities.  Abhorrent crimes continued against civilians.  Equally deplorable were the attacks against peacekeepers.  He had taken note in the report of the arrest warrants issued for President Al Bashir and the events that had taken place at Haskanita.  The principle of complementarity was a cornerstone of the Court, and the Sudanese Government had not attempted to comply with the “complementarity test”.  While he appreciated ongoing efforts to find a solution, it would be tragic if the situation led to interminable impunity.


He said that the Government’s lack of cooperation was a disregard of its international obligations, outlined in resolution 1593, and, further, of the Council.  Its constant defiance of the Court showed contempt for victims, as well as the United Nations Charter.  The impunity shown by the Government was intolerable and must be brought to an end.  In closing, he called on the Government, and all parties and States to extend their full cooperation to the Court.  He had taken note of bilateral and other steps to be taken in the future, and hoped they would be endorsed by all in the international community.


Mr. MORENO-OCAMPO, responding to the Council’s discussion and particularly to the question posed by South Africa’s representative, said that, as Prosecutor, he had pursued the evidence without fear.  His responsibility was to investigate crimes -- and the crimes he had seen in Darfur had the “particularity” of being committed by members of the Government using the State apparatus.


He stressed that President Al Bashir had given the orders to commit the crimes that were under investigation.  The President had ensured the implementation of those orders by replacing those Government officials who had refused them, including an official in Darfur who had refused to use the Janjaweed.  The President had also adjusted his plans according to the changing situation, including increasing international pressure and changes on the ground in various villages.  Knowing he could not directly attack some village because of international norms, he had instead created a climate of fear, including by attacking aid workers.


Continuing, he said a person could not openly use a State to commit crimes.  That was why President Al Bashir had covered those crimes by employing different strategies, such as using Janjaweed militia and widely denying the crimes.  Meanwhile, President Al Bashir had said that the women who claimed to be raped were relatives of the rebels and attacked other witnesses.  Further, he refused to hand over Ahmed Harun to ensure that people continued to implement his orders.


“How can you investigate nationally if you attacked the witnesses?” he asked, further stating that the President of the Sudan was promoting a ceasefire he did not implement and promising justice that did not come.  “This is what I saw according to the evidence.  This was my responsibility.”


Responding to Mr. Moreno-Ocampo’s comments, the representative of South Africa said he wished to clarify that the Council was not filled with lawyers.  Representatives needed to make decisions.  The Rome Statute provided for the article to be used, and the Council would have to balance two needs:  maintenance of peace and security, on the one hand, and fighting impunity, on the other.  He wished to make clear that those not in the Council should not see the body as simply debating the issue, and then condoning all the terrible things that had been said.  The Council had to look at the entire matter.  Whether the Council agreed was precisely “what made it fun”.  Those watching today must not have the impression that if the Council asked a question, that it had taken one side or the other.  At some point, the Council must weigh which way it would move.  It must step back -- and not wear “prosecutors’ hats” -- and determine how it must carry out its mandate.


Mr. URBINA ( Costa Rica) said that, while not everyone in the Council was a lawyer, he was.  He noted that the Prosecutor had done his work by presenting to the Court his discoveries.  What was now being discussed was not the Prosecutor’s judgement, but that of the Court.  Indeed, the role of the Prosecutor should not be confused with that of the Court.  The Prosecutor had requested arrest warrants and it was in the Court’s hands.  For its part, the Council must now “follow up” on the consequences of having referred the case of Darfur to the Court.


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For information media • not an official record