4 December 2009
Security Council
SC/9804

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

Security Council

6230th Meeting (AM)


Sudan’s President ‘Will Face Justice’; ‘Power Does Not Provide Immunity’,

 

International Criminal Court Prosecutor Stresses in Security Council


Prosecutor Warns of President’s Attempt to Stoke Conflict in South, Shift

Attention away from Darfur; Divergent Views Debated over Court’s Arrest Warrant


“President Al Bashir [of the Sudan] will face justice.  Any leader committing crimes will face justice.  Power does not provide immunity”, Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, said today in the Security Council.


Briefing on his tenth report to the Council, he said that, since his last report in June, there had been positive developments.  Judicial proceedings in relation to Darfur were progressing and cooperation with other international bodies had been fruitful.  States and international organizations had maintained consistent support for the execution of the International Criminal Court’s arrest warrants.  He noted that rebel leader Bah Abu Garda, allegedly responsible for killing and injuring peacekeepers during the September 2007 attack of the African Union Mission in the Sudan in Hakanita, had voluntarily appeared before the Court.


Mr. Moreno-Ocampo said he had cooperated with the African Union High-level Panel on International Criminal Court activities and crimes committed in Darfur, which had adopted a comprehensive solution, combining the current Court cases with the possibility to have other courts for other perpetrators, if and when the conditions for such courts to operate effectively were created.


Pointing out that President Al Bashir, at risk of arrest, had not travelled to the territory of Rome Statute States parties for high-level events, which he had been planning to attend, he said that such marginalization of indicted criminals, if maintained steadfastly, was a way towards the ultimate implementation of the arrest warrants.  President Al Bashir had refused cooperation with the Court and had also endeavoured to shift the international community’s attention to new issues, such as the conflict with the South.  “President Al Bashir will exacerbate such conflict if it can shift your attention from the crimes committed in Darfur”, he warned Council members.


His Office continued to review information in such areas as acts against civilians in the camps, including rapes, by the forces of President Al Bashir, and the use of child soldiers both by the Sudanese armed forces and the rebels, he said.  His Office was also considering the criminal responsibility of Sudanese officials who actively denied and dissimulated crimes.


“As the Prosecutor, my mandate is to investigate and prosecute those responsible for crimes to contribute to the prevention of future crimes.  I am ready to answer any challenge in Court, but I will need the full support of the Council to contribute to end the current crimes against the people from Darfur”, he said in conclusion.


In the ensuing debate, speakers underlined that the Sudan was under a legal obligation to cooperate with the International Criminal Court, as stipulated by Council resolution 1593 (2005), and called on all parties to provide full cooperation with the Court, including in executing its arrest warrants.  The representative of the United States urged all States, including those not party to the Rome Statute, to refrain from providing political or financial support to indicted suspects.  She added that her country, although not party to the Rome Statute governing the International Criminal Court, would continue to be supportive of the Court in ways consistent with United States domestic law.


The representative of Burkina Faso, however, expressed concern at the warrant issues against President Al Bashir, a concern echoed by members of the League of Arab States, the African Union, the Organization of the Islamic Conference and the Non-Aligned Movement.  Although combating impunity was an indispensable factor for the return of a sustainable peace to Darfur and the whole of the Sudan, he said the objective of justice could not, in and of itself, bring peace in such a complex conflict without a political solution based on consensus.  He demanded that the prosecution of President Al Bashir be suspended, in conformity with article 16 of the Rome Statute.


In contrast, the representative of Costa Rica pointed out that any Member State should respect the provisions of the United Nations Charter and Council resolutions adopted under Chapter VII.  The Sudanese Government, however, had ignored the decisions of the Council without any consequence, and the Council, through its tolerant attitude, had contributed to eroding trust in international justice.


Echoing other speakers, France’s representative stressed that there was no contradiction between justice and peace, but that combating impunity was a condition for lasting peace.  Although the Rome Statute allowed for the Council to suspend investigation for one year, that provision should only be used when required by security, and never to allow impunity for crimes before the Court.


Many speakers welcomed the report of the African Union High-level Panel, which aimed to consider the interlinked matters of combating impunity and promoting peace and reconciliation.  Uganda’s representative said, in that regard, that the report presented a good basis on which to resolve the outstanding impasse between the Sudan and the Court and strike a balance between upholding justice and ensuring peace and security in the Sudan.  Welcoming the recommendations that called for the establishment of a hybrid court, he said that such a court should be constituted by Sudanese judges and judges from other nationalities, thereby allowing for independence of domestic jurisdiction in the Sudan.


Statements were also made by the representatives of the United Kingdom, Mexico, Russian Federation, Japan, China, Austria, Turkey, Croatia, Viet Nam and Libya.


The meeting, which started at 10:15 a.m., was adjourned at 12:20 p.m.


Background


The Security Council today considered the situation in the Sudan, including the tenth report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UNSCR 1593 (2005), issued this morning.


Briefing by Prosecutor of International Criminal Court


LUIS MORENO-OCAMPO, Prosecutor of the International Criminal Court, said that, since his last report in June, there had been positive developments.  Judicial proceedings in relation to Darfur were progressing, and cooperation with other international bodies had been fruitful.  States and international organizations had maintained consistent support for the execution of the Court’s arrest warrants.


On 19 November, rebel leader Bah Abu Garda, President of the United Resistance Front, had been the first person to appear in Court in relation to Darfur crimes.  He was allegedly responsible for killing and injuring peacekeepers during the September 2007 attack of the African Union Mission in the Sudan in Hakanita.  He had appeared voluntarily before the Court.  The decision of the Judges on the confirmation of charges was expected within two months.


Mr. Moreno-Ocampo said that, in all cases, his Office was continuously taking measures to protect witnesses.  Individuals -– falsely -- suspected of providing evidence to the International Criminal Court had been arrested and tortured in Khartoum, and there were public threats by the Sudanese authorities against anybody who cooperated with the Court.  To date, however, no witnesses had been harmed.


On cooperation with institutions, he said that the League of Arab States was active in efforts to promote justice in Darfur.  The Office had provided information requested by President Thabo Mbeki, as head of the African Union High-level Panel on International Criminal Court activities and crimes committed in Darfur.  He had clarified that the cases against President Al Bashir, Ahmad Harun and Ali Kushayb, as well as Abu Garda and two other rebel commanders, would be decided in the Court, and he had talked about the complementary role that other courts could play to investigate other perpetrators.  The Panel had adopted a comprehensive solution, combining the current Court cases with the possibility to have other courts for other perpetrators, if and when the conditions for such courts to operate effectively were created.


As Council members had expressed the need to pursue an integrated approach in Darfur -- justice, security, political negotiations and humanitarian aid -- he reported that all the actors working on those different aspects had demonstrated that engagement with the Sudanese Government in political negotiations on Darfur was possible while recognizing President Al Bashir’s individual responsibility for the crimes committed and respecting the Court’s decision.


He said that judicial cooperation from States, including for the execution of the Court’s arrest warrants, was forthcoming.  The warrants had been transmitted to the Sudanese Government, which had the primary responsibility to end crimes and arrest individuals on Sudanese territory.  All efforts in recent months had converged to encourage the Sudan to respect its responsibilities.  President Al Bashir, at risk of arrest, had not travelled to the territory of States parties for high-level events, which he had been planning to attend.  That process of marginalization of indicted criminals, if maintained steadfastly, was a way towards the ultimate implementation of the arrest warrants.  “President Al Bashir will face justice.  Any leader committing crimes will face justice.  Power does not provide immunity”, he said.


Negative developments over the past period included the lack of cooperation of the Sudan and the continuation of crimes, he said.  President Al Bashir had refused to appear in Court and had refused to arrest Ali Kushayb, or Ahmad Harun, who was now the Governor of Kordofan.  The President had also continued using the Sudanese State apparatus to conduct a diplomatic and communication campaign against the Court and had endeavoured to shift the attention of the international community to new issues, such as the conflict with the South.  “President Al Bashir will exacerbate such conflict if it can shift your attention from the crimes committed in Darfur”, Mr. Moreno-Ocampo said, seeking the Council’s full support in ensuring that the attention remained on the need to arrest the persons who were subjected to arrest warrants and on the need to end crimes in Darfur.


He said, meanwhile, those crimes were continuing, including indiscriminate bombings of civilians; hindering of humanitarian aid and expelling of assistance providers; rapes and sexual violence; and use of child soldiers.  Last week, there were reports of Militia-Janjaweed attacks against two villages in North Darfur, in which civilians had been captured, villagers beaten and properties looted.


His Office continued to review information in four main areas, including acts affecting displaced persons, committed in particular by the Humanitarian Aid Commission (HAC), he noted.  On 10 November, “HAC” Commissioner Hasabo had announced that the Government would close the camps for the displaced by early next year, without guarantee of access to food or water, or of security.  Sheiks in camps who opposed returns to unsafe areas were targeted.  He said that any forced return of displaced persons could constitute a new crime within the Court’s jurisdiction.  Mr. Moreno-Ocampo’s Office would also review information regarding acts against civilians in the camps, including rapes, by the forces of President Al Bashir, and the use of child soldiers both by the Sudanese armed forces and the rebels.  His Office was also considering the criminal responsibility of Sudanese officials who actively denied and dissimulated crimes.


On 4 March, the Court’s Judges had ruled that the policy adopted by President Al Bashir against 2.5 million Sudanese citizens in the camps constituted extermination as a crime against humanity.  The Appeals Chamber was considering whether the charges of genocide should be added.  Instead of stopping the crimes, President Al Bashir was stopping the information about the crimes.  The Secretary-General had accused the Sudanese Government of breaching the African Union-United Nations Hybrid Operation in Darfur (UNAMID)’s Status-of-Forces Agreement by placing impediments on the movement of peacekeepers, which was the last international presence able to keep a protective eye on camps and rural areas and to report on rapes and sexual violence.


In conclusion, he said, “As the Prosecutor, my mandate is to investigate and prosecute those responsible for crimes to contribute to the prevention of future crimes.  I am ready to answer any challenge in Court, but I will need the full support of the Council to contribute to end the current crimes against the people from Darfur.”


Statements


MARK LYALL GRANT ( United Kingdom) said his Government was encouraged by the progress on one of the cases in the past six months, welcoming the voluntary appearance by Abu Garda to answer charges of war crimes in the context of the June 2008 attack on the African Union and United Nations peacekeepers at Haskanita.  Such willingness to cooperate was encouraging, and he called on others to do the same.  But, the United Kingdom remained concerned by the continued lack of cooperation by the Sudanese Government.  Once again, the Court’s Prosecutor had reported no movement in that regard, particularly in relation to outstanding arrest warrants.  There had been no relevant proceedings in relation to indictees or any indication of intention to investigate or prosecute those cases.


He underlined that the Sudan was under a legal obligation to cooperate with the Court, as stipulated by Council resolution 1593 (2005), and he reiterated the call on all parties to provide full cooperation.  He was also concerned to hear that very serious crimes continued to be committed in Darfur, in the form of attacks on civilians, including humanitarian workers, and in the form of sexual violence, forced returns and the use of child soldiers.  He welcomed steps by the Prosecutor to monitor such unacceptable attacks on Darfur civilians, and also welcomed his contact with regional actors, particularly the African Union High-level Panel and of his implementation of recommendations of the Mbeki report.  That report was thorough, detailed and balanced, and offered scope for progress in achieving peace, justice and reconciliation.  He underlined his country’s strong support of the Court and of its work to combat impunity in Darfur, commending Mr. Moreno-Ocampo’s efforts towards that goal.


ROSEMARY DICARLO ( United States) said her Government had also been pleased by progress in one of the cases, and commended those States that had provided the Court with excellent cooperation.  Notwithstanding those developments, the Prosecutor’s report had clarified the Sudanese Government’s non-fulfilment of its obligations, whose binding nature had been reiterated in the June 2008 Security Council presidential statement, among other documents.  She stressed the need to hold perpetrators accountable.  She noted, as well, that the Sudanese Government’s actions in Darfur affected the country’s stability as a whole.  Noting that the Court’s arrest warrants were still outstanding, she called on the Sudan to cooperate fully with the provisions of Council resolution 1593 (2005).


She said that continued violence in Darfur undermined the fragile humanitarian situation, which, in the last six months, continued to claim the lives of civilians.  The Sudanese Government had conducted flights over Darfur, while reports from the Secretary-General and the Prosecutor described ground offensives in North Darfur, among other places, resulting in civilian casualties and displacement, destroying infrastructure.  The international community had tried to bridge the gap in certain life-saving sectors when humanitarian workers were expelled by the Government, but such temporary measures were not sustainable in the long term.  The number of international non-governmental organizations had been cut in half as a result of the Government’s actions, dramatically reducing their ability to assist.  The Council must be vigilant in holding the Government responsible for meeting its people’s needs.


Stressing that those responsible for crimes must be held accountable, she urged all States, including those not party to the Rome Statute, to refrain from providing political or financial support to indicted suspects.  The United States was not party to the Statute, but had been pleased to participate, for the first time, at the Conference of Parties to the Rome Statute, as an observer.  Its participation reflected the United States’ commitment to engage on issues affecting its foreign policy, in which ending crimes against humanity ranked high.  The United States would continue to be supportive of the Court in ways consistent with United States domestic law.  On the African Union High-level Panel, her Government welcomed the suggestion to strengthen the legal system, but noted that such efforts would not succeed unless they were backed by the political will to bring perpetrators to justice.  The idea of a hybrid tribunal was worth further study, but the prosecution of cases by the Court remained critical.


CLAUDE HELLER ( Mexico) said that almost five years had passed since adoption of resolution 1593, but violations of human rights and humanitarian law persisted, as well as impunity.  Of the three cases launched by the Court, the only positive element had been the voluntary appearance before the Court of rebel leader Abu Garda.  In the other two cases, the cooperation of the Government with the Court was non-existent, especially regarding execution of the arrest warrants.  The Government was obliged to investigate and prosecute the perpetrators of international crimes committed on its territory.  Faced with Government inaction, the Court should exercise its jurisdiction and all parties should cooperate.  The lack of cooperation of the Government was a challenge to Council authority.


He said one important aspect of the report was the interaction between the Office and the African Union High-level Panel, and he stressed, in that regard, the importance of regional actors in seeking a solution to the Darfur situation.  He hoped that the Panel’s recommendations would be fully implemented regarding combating impunity; full and comprehensive compliance with them was critical.  It was fundamental that the Government of the Sudan cooperate with the international community and comply with its international obligations.  The Council could not remain passive faced with the Darfur situation.  He called on it to demand that the Government fully comply with resolution 1593 and cooperate with the Court, and that it adopt the necessary decisions to guarantee full protection of civilians.


GERARD ARAUD ( France) said that the report confirmed the lack of cooperation of the Sudanese Government with the Court.  Moreover, no national judicial procedures had been undertaken.  Mass violations of human rights and international humanitarian law and the existence of war crimes and crimes against humanity had been confirmed.  Resolution 1593 aimed to end impunity.  The action of the Court and the Council were complementary, but independent.  There was no contradiction between justice and peace.  Combating impunity was a condition for lasting peace.  The Rome Statute allowed for the Council to suspend investigation for one year.  That provision, however, should only be used when required by security, and never to allow impunity for crimes before the Court.


He said it was not up to the Council to intervene in the decision-making of the Court and its independent Prosecutor.  The Council should demand that everyone respect resolutions adopted under Chapter VII.  France supported the authority of the Council as the main United Nations body for maintaining peace and security, and the International Criminal Court as the body responsible for punishing those responsible for the most serious international crimes.  Everything should be done to end the conflict in Darfur, and fighting impunity was a prerequisite for restoring peace and security in the region.


VITALY CHURKIN ( Russian Federation) noted that the Prosecutor’s work had veered increasingly towards achieving outcomes that would contribute to a comprehensive peace in Darfur and in the Sudan as a whole, and to boosting its cooperation with regional mechanisms.  Recognizing that there were varying assessments of the situation, the Russian Government nevertheless believed in the need for the Court to continue along those lines.


He welcomed its cooperation with the African Union High-level Panel, whose report contained a number of interesting ideas for using national mechanisms to achieve peace and national reconciliation, alongside the Court’s criminal justice goals.  His Government had taken note of the cooperation between Khartoum and the Court, as described by the Prosecutor.  But, the Prosecutor should carefully weigh his next steps in order to “calibrate” them against actions needed to improve the humanitarian situation, and he stressed the need to assess the actions of all parties objectively.


He noted the voluntary appearance of Abu Gadar before the Court, and called on the Prosecutor not to slacken his attention on that case.  Russia harboured deep regret over the unending violence in Darfur.  Stopping such violence could only be done through a political settlement, with UNAMID’s assistance.  He commended the actions of the joint chief mediator of the African Union and the United Nations, aimed at bringing a wide range of rebel groups and leaders of civil society into the negotiations.  The parties must reach agreement, which was a challenge.  The refusal by certain elements of the Justice and Equality Movement (JEM) and the Sudanese Liberation Movement (SLM) to participate in those talks was a major impediment to the peace process.  The Darfur problem must be subjected to dialogue by the African Union, the United Nations and other mediators, as well as by the Sudanese Government.  The Russian Federation had helped advance dialogue on the basis of equality among partners, and with respect for Sudanese sovereignty.


YUKIO TAKASU ( Japan) said impunity must not be condoned, more so in the case of serious crimes, such as war crimes and crimes against humanity.  Justice and peace must be pursued in parallel; as such, the international community must unite to seek a solution that reconciled peace with justice.  For that reason, Japan closely followed developments in both the political and humanitarian spheres.


He said that Japan also respected the independence and decisions of the Court on Darfur cases emanating from Council resolution 1593 (2005).  With regard to the three cases, for which the first set of arrest warrants had been issued more than two years ago and the second set last March, developments were neither substantial nor expeditious, with the exception of Abu Garda’s voluntary appearance in October for the confirmation of charges.  The Sudanese Government was urged to act with regard to those cases in a manner consistent with Council resolutions and statements.  He acknowledged the cooperation shown by the African Union High-level Panel, and the efforts of its Chair, former President Mbeki, whose efforts would hopefully facilitate the peace process.  Japan looked forward to a constructive discussion with Panel members on their recommendations.


The international community should take a comprehensive, inclusive and multilateral approach to the Darfur issue, in view of its complex historical, socio-cultural, economic and political nature, he said.  Similarly, the Council should address the issues of impunity and humanitarian and security concerns in a comprehensive way.  Those issues encompassed the deployment of UNAMID and general elections.  It was essential, as well, to strengthen the Sudanese justice system.  He noted that the Court would function most effectively with universal accession and with the cooperation of all States.  As such, his Government urged all States to join hands to universalize the Rome Statute.


LIU ZHENMIN ( China) said the Darfur issue involved political processes and aspects of peacekeeping, humanitarian assistance and justice.  A comprehensive solution was necessary to ensure peace and security.  Promoting progress in the political process in Darfur was critical for all progress there.  The peacekeeping deployment was progressing.  Darfur comprehensive peace talks had been held in Doha.  Humanitarian work continued and relations between the Sudan and Chad had improved.  Favourable conditions were created to ensure participation of the people of Darfur in the upcoming elections.  That was hard-won progress.  Trust was the basis for cooperation, and cooperation was crucial.  Addressing impunity could not succeed without the trust and cooperation of all parties concerned.


He said the role of the African Union in that regard was crucial.  Its high-level panel had submitted an important report with recommendations on the format of cooperation to achieve peace and address impunity.  He looked forward to a discussion with a high-level African Union delegation in New York later in the month.  He hoped that Prosecutor Moreno-Ocampo would continue to follow and objectively review the latest developments and maintain close communications with all parties.


JORGE URBINA ( Costa Rica) said that, when the basic obligation of Member States to respect the principles and provisions of the United Nations Charter was not met, it was not without consequence.  All Member States had committed to accept their Charter obligations, including the Sudan.  That included accepting and complying with Council decisions.  Five years ago, the Council had decided that the Government of the Sudan should cooperate fully with the Court.  To date, that cooperation had been non-existent.  The Sudanese Government, however, had ignored the decisions of the Council without any consequence.  The Council, with its tolerant attitude, had contributed to eroding trust in international justice.


He said that attacks against the civilian population continued, sexual violence was used at a weapon of war, and recruitment of child soldiers reportedly continued.  All those crimes had a root in impunity.  Outside the Council, the international community had been more consistent in promoting justice.  The African Union had set up the High-level Panel, which aimed to consider the interlinked matters of combating impunity and promoting peace and reconciliation.  Its recommendations marked the way forward.  Acknowledging the decisive attitude of African nations, he expressed regret for the inaction of the Security Council.  He urged the international community to pay attention to the issue of witness protection and to analyse the repercussion of the expulsion of humanitarian organizations from Darfur and the “Sudanization” of aid.


THOMAS MAYR-HARTING ( Austria) said his country was a long-standing advocate of the rule of law and the fight against impunity, and was a strong supporter of the International Criminal Court.  In its “protection of civilians” resolution, the Council had affirmed its strong opposition to impunity in the case of serious violations of international law and human rights law through reconciliation mechanisms, including international tribunals and mixed criminal courts.  It had also emphasized the principle of complementarity.  Abu Garda’s appearance before the Court had been a positive development, which he commended.


He noted that more than four years had passed since the passage of resolution 1593 (2005), whose provisions were recalled in the presidential statement of June 2008, in which the Sudanese Government and other parties were urged to cooperate with the Court.  The European Union had also issued several clear statements in that regard, most recently in September, in which it underlined the importance of not accepting impunity.  The Union had also reiterated its support for the Court and had called on the Sudan to cooperate fully with it.


Austria remained concerned by the dire humanitarian situation in Darfur, he said.  Notwithstanding efforts by the United Nations Office for the Coordination of Humanitarian Affairs and others, it had not been possible to overcome the negative consequences of expulsion of non-governmental organizations in March.  The United Nations and the European Union had repeated their call on the Sudan and other parties to ensure that humanitarian assistance reached the most vulnerable people.  He commended the African Union High-level Panel for its report, and welcomed the wide consultations undertaken in its preparation.  He welcomed the Panel’s interaction with the Court’s Prosecutor, and looked forward to Mr. Mbeki’s appearance before the Council later this month.  Ensuring accountability was fundamental to achieving lasting peace and reconciliation in Darfur and the Sudan as a whole, and he welcomed contributions towards that goal.  Austria was engaged in diplomacy with the African Union, the Arab League and others to ensure support for the Court and for combating impunity within the framework of the Rome Statute.  Peace and justice were mutually reinforcing, and States had a joint responsibility to address both.


ERTUGRUL APAKAN ( Turkey), while noting that Turkey was not party to the Rome Statute, said it nevertheless shared a belief in the principles that gave rise to the Court, namely, the need to fight impunity and to promote justice in countries emerging from conflict.  He believed that, in the years to come, the Court could complement efforts to fight impunity for serious of crimes.  For now, the Court was a new feature of international law and, in light of its recent experiences, would go on to face serious challenges.


He noted that, over the course of the past 12 months, the process initiated by Security Council resolution 1593 (2005) had reached a critical mass.  In January, negative events had taken place that inadvertently affected the lives of innocent people, complicating an already difficult situation.  Implementation of resolution 1593 could not and must not be decoupled from the wider framework of the search for peace and stability in Darfur.  Its implementation was not an end in itself, but part of broader effort to find a sustainable political settlement that took account of the conflict’s root causes.  That effort should also encompass ways to address the humanitarian situation, promoting broad-based reconciliation and providing meaningful justice for Darfuris.  Given time, and provided the right framework, those goals could be achieved.  But undue emphasis on only one goal could undermine all the others.


There could be no real justice or reconciliation without peace and an enabling political framework, he said.  Turkey placed importance on building a regional approach that took account of the sensitive dynamics at play.  The African Union, the Arab League and the Organization of the Islamic Conference had differing, but crucial, roles to play, as was true of the Doha process, whose positive outcome was absolutely vital.  The African Union Panel report contained a stern warning that must be taken seriously.  Turkey welcomed its concrete recommendations, which were well thought out and tailored to specific problems, and called on all parties to take them as points of reference and to make best use of the report.  A peaceful settlement through dialogue was possible, but the potential fallout carried risks for the region and for international peace and security.  There were no quick fixes, but a political settlement that could meet the expectations of the legitimate parties involved could open the path to peace, including in Darfur.  It was important to keep the bigger picture in focus and not to aggravate a sensitive situation.


RANKO VILOVIC ( Croatia) said his country was seriously concerned at the ongoing absence of cooperation by the Government of the Sudan with the International Criminal Court.  The Government continued with its policies of contempt towards the victims in Darfur and did not put an end to impunity.  The message of resolution 1593 was still relevant, namely, that the Government and all other parties should fully cooperate with the Court.


He welcomed the focus of regional organizations, including that of the Arab League and the African Union, to close the gaps between issues of impunity and peace and security.  The recommendations of the African Union High-level Panel report should be met by a meaningful response by the Sudanese side.  He welcomed increasing international and regional efforts to promote dialogue, in order to achieve sustainable peace and stability in the Sudan.  It was vital to reserve respect for the independent mandate of the Court and its Prosecutor.  The Council had emphasized that impunity was not incompatible with peace and security.  The Court had a complementary role in that regard.


RUHAKANA RUGUNDA ( Uganda) said the High-level Panel had submitted recommendations on how best to effectively and comprehensively achieve accountability and reconciliation, and combat impunity, striking a balance between upholding justice and ensuring peace and security in the Sudan.  He warmly welcomed the recommendations that called for the establishment of the hybrid court to exercise jurisdiction over individuals who bore the greatest responsibility for the crimes.  The Panel had recommended that such a Court should be constituted by Sudanese judges and judges from other nationalities, thereby allowing for independence of domestic jurisdiction in the Sudan.  The report presented a good basis on which to resolve the outstanding impasse between the Sudan and the Court.


He said that ending of impunity was the only credible deterrent of crimes against humanity.  Nevertheless, it was important to take into account the need to resolve conflicts in a manner that did not drive regions back to anarchy.  The report’s findings had taken into account the situation on the ground in Darfur, the Sudan and Africa.  He remained concerned at the humanitarian situation in Darfur, at reports of sexual violence in the camps there and about reports of continued recruitment of child soldiers.  He called on the Sudanese Government to take appropriate measures to ensure that those incidents were stopped and that the perpetrators of those crimes were brought to justice.  He called on the Council to support the Panel’s recommendations, which provided a realistic way forward to achieve accountability, reconciliation and lasting peace in Darfur.


LE LUONG MINH ( Viet Nam) said that his country had always maintained the need to bring to justice the perpetrators of serious crimes, such as genocide, war crimes, crimes of aggressions and crimes against humanity.  In that, it recognized the role of the Court, but as a tribunal of last resort.  The primacy of national jurisdiction must be respected and assistance must be given to national judiciaries to build their capacities.


He expressed concern about both the deteriorating humanitarian situation in Darfur and the allegations of crimes against civilians.  Viet Nam supported African Union efforts to engage the Sudanese Government, and welcomed its creation of a high-level panel.  The Panel’s report, as adopted by the African Union Peace and Security Council, had stressed the need to strengthen Sudan’s legal system and its ability to make reparations to victims in the Sudan.  Noting the Prosecutor’s cooperation with the High-level Panel, his Government encouraged further cooperation between them.  While reaffirming the need for parties to implement Council resolution 1593 (2005), he also drew attention to the African Union’s call to consider deferring the Darfur investigation.


ATTIA OMAR MUBARAK ( Libya) said his country had followed with the situation in Darfur with great concern and based on a desire to see peace and justice achieved.  It had participated actively in efforts aimed at achieving peace, stability and justice in Darfur, coordinating its efforts with the African Union and other regional organizations, and the United Nations.  The Council should realize that there was no alternative to an active political process for creating the circumstance for bringing about peace and reconciliation.  Many Council members objected to the measures adopted by the Prosecutor, and they had abstained from voting in favour of resolution 1593 (2005), through which the Council had referred the situation to the Court.  They had found it questionable that there was a resolution on Darfur, while the Council remained quiet on other areas of the world where civilians were killed by “ferocious weapons”, and where violence was permitted with impunity, occurring in a methodical way before everyone’s eyes.


He said those States that charged impunity in the Sudan were the very same who refused to discuss the Goldstone Report resulting from the Fact-Finding Mission in the Gaza conflict.  The Court, it appeared, was a tool for certain countries to achieve their policies.  The Sudan, as a country that was not party to the Rome Statute, was not obliged to fulfil the Court’s resolution.  Even with Security Council 1593 (2005) in place, the Court’s decisions were not compulsory for the Sudan, since the resolution’s operative paragraph 2 merely “urged” States and organizations to provide their full cooperation to the Court.  As indicated in an advisory opinion of the Office of Legal Affairs, “urge”, from a legal standpoint, did not present any obligations to States.   Further, paragraphs 62 and 63 of Mr. Moreno-Ocampo’s report was a misstatement of what was said by the Security Council in its resolution and presidential statement.  The Prosecutor was meant to act within certain professional bounds, in a spirit of non-selectivity, and without threats.  He objected to the Prosecutor’s characterization of the presidents of countries as fugitives, when they were on their way to a summit meeting to promote peace.


He raised objections to other paragraphs in the report, such as paragraph 66, which were drafted to indicate a higher level of support for the International Criminal Court than it merited.  That paragraph stated that 56 States in the General Assembly had reaffirmed their support for it last October and reaffirmed the importance of cooperating with the Court in relation to the arrest warrants.  There was clear indication that over two thirds of the membership did not actually support the Prosecutor and the steps he was taking.  The report indicated in paragraph 67 that African States parties to the Rome Statute had asked the Security Council to consider a deferral of the investigation in Darfur, which the Prosecutor ignored.  In paragraph 69, he discussed his contacts with African States without indicating the outcome of those contacts; they had refused him.


The arrest warrant for Mr. Al Bashir had been issued at a time when UNAMID was being deployed, he said.  It had caused significant, popular reactions and had the effect of defeating hopes for peace and stability.  The warrant was issued, therefore, in disregard of Sudan’s realities, at a time when the Comprehensive Peace Agreement was progressing through an important stage, with elections approaching, as well as important referendums.  There were also reports of tribal conflict in the south.  In Darfur, the humanitarian and security situation was deteriorating, due to steps taken by the Prosecutor.  He ignored official documents issued by significant regional organizations, comprising two thirds of the United Nations membership who were members of the African Union, the Arab League, the Organization of the Islamic Conference and the Non-Aligned Movement.  Indeed, the Security Council worked in the name of those States.  The United Nations Charter itself acknowledged the role of regional organizations in its work, and the Council should encourage their role in that context.


The Council should also implement article 16 of the Rome Statute, by which it was possible to defer investigation and prosecution in its cases, he said.  Other regional organizations, such as those mentioned above, had expressed similar positions.  In his briefing to the Council in April, the joint African Union-United Nations chief mediator had said that Court’s decisions dominated the political life in the Sudan, undermining efforts to find compromise and encouraging extremism.  His opinion did not appeal to some Council members, and he was under pressure to leave his post.


It was important to respect the political process and to address the root causes of conflicts, while respecting the sovereignty of Member States, he said, adding that that was the basis of African Union resolutions and the report of its High-level Panel, which should be discussed objectively and positively by the Security Council, as it contained guidelines for providing remedies to victims.  It was time to fix the “negative effects” of the Court, to return to the spirit of the Rome Statute and to activate article 16.  That deferral was necessary to preserve peace and security, which was the hope of the Chair of African Union -- presently, Libya -- as well as more than two thirds of the United Nations membership.  The Security Council’s failure to implement article 16, despite the demands of several parties, affected its credibility.


MICHEL KAFANDO ( Burkina Faso), speaking in his national capacity, said he regretted that, despite the efforts of the international community, peace had not returned to Darfur.  The civilian population, refugees and displaced persons, humanitarian personnel and peacekeepers were daily exposed to violence.  While reaffirming his country’s confidence in an independent criminal justice system, he expressed concern at the warrant issues against President Al Bashir, a concern echoed by other members of the international community, including members of the League of Arab States, the African Union, the Organization of the Islamic Conference and the Non-Aligned Movement.


He said that, although combating impunity was an indispensable factor for the return of a sustainable peace to Darfur and the whole of the Sudan, the objective of justice could not, in and of itself, bring peace in such a complex conflict without a political solution based on consensus.  The issuance of the arrest warrant would further complicate the peace process, as well as efforts of the African Union and the Council.  He demanded that the prosecution of President Al Bashir be suspended, in conformity with article 16 of the Rome Statute.  That position implied no value judgement on the case itself, but was meant to give both justice and the political process a chance.


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For information media • not an official record