5 June 2012
Security Council
SC/10663

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

Security Council

6778th Meeting (AM)


World’s Fight against Impunity for War Crimes, Genocide Weakened by Sudan’s

 

Failure to Execute Arrest Warrants for Darfur Crimes, Security Council Told

 


ICC Prosecutor Says Sudan’s Failure ‘Direct Challenge’ to Council Authority;

Sudan:  Court Referral Not Legitimate, Government Will Focus on Peace Process


The world’s fight against impunity for war crimes, crimes against humanity and genocide was weakened by Sudan’s failure to render President Omer Hassan A. al-Bashir and three other Sudanese to the International Criminal Court on warrants issued for crimes in Darfur, its Prosecutor told the Security Council this morning, calling on the body to take action.


“The ‘never again’ promise is being tested in Sudan,” Luis Moreno-Ocampo said, presenting his fifteenth report to the Council by the Prosecutor on Darfur pursuant to resolution 1593 (2005), which referred the situation in the region to the Court, and his last as Prosecutor of the International Criminal Court.


Given Sudan’s failure to arrest and hand over the indictees, which was a “direct challenge” to the Council’s authority, it was up to the Council to determine the measures to be adopted to ensure compliance with its resolutions, he said.  The African Union-United Nations Hybrid Operation in Darfur (UNAMID) should not be authorized to carry out or assist the arrests.  Instead the Council could, he suggested, evaluate other possibilities, including requests to Member States or regional organizations to execute arrest operations.


He recalled that the judges of the Pre-Trial and Appeals Chambers had evaluated evidence collected by his office in a widespread and impartial investigation and had issued warrants for a leader of the Janjaweed militia, Ali Kushayb, who reported to the then Minister of State for the Interior, Ahmed Harun, who in turn reported to the then Minister of the Interior, Abdel Raheem Muhammad Hussein, who reported to President al-Bashir, all of whom had been charged with crimes against humanity and war crimes.  The warrant against Mr. Hussein was issued in 2011; the others dated from 2007.


Their responsibility was not a mere consequence of their official roles, he said.  In all cases there were witnesses that described in detail their active participation in the strategy to commit crimes, including, in the case of the President, acting with specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups, incurring the additional charge of genocide.


The Government, he recalled, had the legal obligation to implement the arrest warrants, according to the Council resolution, but President al-Bashir had utilized denial, never-ending negotiations, threats and announcement of justice initiatives that were not acted upon and other tactics “to ensure his own impunity and the impunity of those who follow his instructions”.  Meanwhile, he said, there was no reason to believe that serious crimes have stopped.


“Implementing the arrest warrant will produce a dramatic change in Darfur,” he said.  He stressed that the whereabouts of the four fugitives were well known.  Mr. Kushayb remained in Darfur, Mr. Harun could be found in his Governor’s residence in South Kordofan, Abdel Raheem Hussein sat in his office at the Ministry of Defence in Khartoum and Mr. al-Bashir could be found in the Presidential Palace.


Discussions of Council action to secure the arrests of those men would be “problematic”, he acknowledged.  “But the victims will receive a clear message:  they are not ignored.  And the perpetrators will receive a clear message:  there will be no impunity,” he said.


Taking the floor next, the representative of Sudan said that the entire situation was being driven by the political motives of some Council members and Court officials, because the referral of the situation in Darfur to the International Criminal Court was not legitimate.  Sudan had no contractual obligations to comply, because it was not a party to the Court’s founding statute, he added, stressing that his delegation’s participation in the meeting did not in any way imply interaction with the Court.


Reading a statement by former United States Secretary of State, Condoleezza Rice, complaining that Mr. Ocampo was not accountable to any Government and that his mandate “sounded a little too much like world Government”, he said today’s briefing proved that case.  “He speaks as if he is President of the World,” he said.  All the claims that Mr. Ocampo had amassed were based on false information and personal and political motives and progress in the peace process had gone unacknowledged.  The Government would continue to cooperate with the Council and the Qatari mediation in establishing full peace and stability in Darfur, but, at the same time President al-Bashir had been elected by the people, who would defend Sudan’s independence.


Following those presentations, Security Council members acknowledged Mr. Moreno-Ocampo’s departure from the International Criminal Court, with many extending high praise for his work there.  Some speakers strongly regretted Sudan’s failure to act on the Court’s warrants, with some of them affirming the importance of the Council considering options to enforce the warrants.  Others noted that many States and organizations did not support the warrants.  The representative of the Russian Federation said that the situation required analysis and new approaches, but invoking enforcement capacities under Chapter VII in order to bring about the arrests would be counter-productive and that the peace process in Darfur must be the overall priority.


The representative of Germany, among others, noting that President al-Bashir had travelled to other countries, reminded other States of their obligation to carry out the warrants of the Court in their territory.  South Africa’s representative, however, pointed out that it was questionable whether that obligation existed, because resolution 1593 (2005) was drawn up in a way that specifically avoided it.


Also speaking were the representatives of the United Kingdom, Morocco, United States, France, Portugal, Colombia, Pakistan, Guatemala, Togo, Azerbaijan, India and China.


The meeting began at 10:10 a.m. and ended at 12:20 a.m.


Statements


DAFFA-ALLA ELHAG ALI OSMAN (Sudan) said his delegation’s participation in the meeting did not in any way imply interaction with the International Criminal Court.  Sudan’s participation only aimed to correct the mistakes and mischaracterizations in the Prosecutor’s most recent report.  He said that the “contractual” relationship between the Security Council and the Court should only be between that body and parties to the Rome Statute.  In any case, Sudan had always questioned the Court’s independence.  The Council’s referral of the case of Sudan to the Court had not been made on a sound basis:  the conflict was internal and had not become a “threat to international peace and security”.  Therefore, the entire situation was being driven by the political motives of some Council members and Court officials.  Moreover, Sudan was not a party to the Court’s founding statue.  The Court was not a judicial body of the United Nations, he added.


Sudan was also quite concerned with the Prosecutor’s behaviour, he continued, reading a statement by former United States Secretary of State Condoleezza Rice, saying that Mr. Ocampo was not accountable to any Government and that his mandate “sounded a little too much like world Government”.  Mr. Ocampo’s briefing to the Council proved that was true.  “He speaks as if he is President of the World, issuing instructions to the Council and telling Council members when he might speak or answer their questions,” he said.  Condoleezza Rice was correct; Mr. Ocampo acted as if he was beholden to no one, not even the United Nations Charter.  Yet, all the claims that Mr. Ocampo had amassed were based on false information and personal and political motives.  Indeed, the Prosecutor’s claim that crimes against humanity and “ethnic cleansing” had taken place in Darfur had all been refuted by international personalities and legal sources.


Continuing, he said that anyone who read the current report might think that the Prosecutor was talking about “another Darfur”; one that was not the current region that was living in peace and security and where the Sudanese Government had gone to great lengths to implement the Doha Peace Accords.  He refuted the claim that Khartoum had taken no judicial steps to investigate possible crimes committed in Darfur, saying that the Doha agreement had called for such action and the Government had ensured that peace and reconciliation mechanisms were beginning to work.  Indeed, a coalition of former fighters in Darfur was heavily involved in reconstruction and other tangible actions to rebuild the region.  It was now incumbent upon the international community to step up its efforts and provide assistance, so Darfur could continue along the path to peace — not pour more fuel on the fire or fan tensions of the parties in the region.


He hailed the Darfur agreement as the foundation for all the tangible progress on the ground in Darfur.  He read a statement from the current United States envoy to Darfur that recounted “positive changes”, and he asked, “who would be more believable:  this envoy who has been to Darfur, or someone who has never been to Darfur?”  The Prosecutor, in his report and briefing to the Council, had chosen to “beat the drums of war” and to recount the past.  He had not chosen to provide the Council with any positive information whatsoever about Darfur.  Never before had the Council been presented with such an inflammatory report, he said, emphasizing that the Prosecutor had chosen to instigate the Council and ignore the Charter.


“Why does he wish to insult the Council and incite the Government of Sudan, which has been able to turn the page of war and restore peace among all the tribes living in Darfur,” he said, strongly denouncing the Prosecutor’s call on the Council to take new legal measure to execute the Court’s arrest warrants.  He said that President Omer al-Bashir had been elected by the Sudanese people.  The people of Sudan would not think twice about defending the sovereignty of their country to protect its independence.


He told the Prosecutor that threatening to interfere in the internal affairs of Sudan would not deter the people from their desires to live free.  He said the Council must caution the incoming Prosecutor, so that she did not follow Mr. Ocampo’s pitiful example.  The Government of Sudan would continue to cooperate with the Council and the Qatari mediation to continue efforts to establish full peace and stability in Darfur.  “The people of Darfur are a dear part of Sudan and no one is more concerned than the Government to tend their wounds and relieve their bitterness,” he said, expressing the hope that the Council would heed the voice of wisdom and follow its Charter mandate to assist States in their efforts to ensure peace and security.


PAUL MCKELL (United Kingdom), supporting the work of the International Criminal Court and thanking the Prosecutor for his efforts of the past years, said that the past months had not seen as much progress in Darfur as had been hoped following the signing of the Doha Document.  He looked to the Government to deliver its funding commitments to the Darfur regional authority.  He also urged rebel movements who had not signed onto the document to join the peace process.  The human rights situation had been deteriorating, with reports of sexual violence and frequent attacks against peacekeepers, who have not had access to many areas.  Given that situation, the Court’s activities were more and more relevant.  The Government was bound to fully comply with the Court, he stressed, reiterating his call to Sudan and all States to cooperate with the Court to end impunity.


LOTFI BOUCHAARA (Morocco), reaffirming the need to respect both human rights and the sovereignty of Sudan, said that progress in Darfur following the signing of the Doha Document must be encouraged and supported.  Implementation was difficult because several rebel movements had not signed to the agreement and adequate funding had not been provided.  Noting the long and prominent history of Sudan, he said that the decision to indict President al-Bashir was not an expression of international consensus and had been questioned by many.  Effective coordination was needed between all stakeholders in order to bring peace to Darfur.


JEFFREY DELAURENTIS (United States) said his Government was gravely concerned about the current situation in Darfur and the role ongoing impunity had played in continuing the suffering of the people there.  The Prosecutor had come repeatedly to the Council to present his reports on crimes against humanity being perpetrated in Darfur.  That official had cultivated copious evidence and issued arrest warrants.  While promises had been made to the people, justice had not yet been served.  The United States had consistently called on the Government of Sudan and all parties to the conflict to cooperate with the Prosecutor and the Court.  Indeed, elements of the Darfur peace agreement remained largely unfulfilled.


The current meeting provided an opportunity for Council members to reflect on what could be done to strengthen international efforts to address the situation, including ending impunity through effecting the arrest warrants issued by the Court. It was a serious cause for concern that people subject to arrest warrants continued to travel freely across borders, he said, urging States to stop providing political and financial support to such indictees.  The United States stood with the many States that had refused to host those indictees and had called into question President Bashir’s continued travel, including to the upcoming African Union Summit.  It had also urged other States to do the same and would welcome better coordinated efforts by other members of the international community.


“As members of the Security Council, we can and should consider other steps,” to ensure compliance by States with relevant international obligations, he said, adding that ongoing impunity fuelled resentment, reprisal and conflict in Darfur.  The United States was “deeply troubled” by fighting in three of five Darfur states, the uptick in sexual violence against women, and ongoing impunity for the killing of UNAMID (African Union-United Nations Hybrid Operation in Darfur) peacekeepers.  It was also concerned about continuing violence in South Kordofan and Blue Nile states.  The situation there was clear evidence that those who evaded accountability all too often contributed to future violence.  Troublingly, Ahmed Harun had been entrusted to serve as the Governor of South Kordofan and he appeared to be following policies similar to those that had been carried out in Darfur, most recently leading to massive population displacements.  It was up to the Council to consider any and all measures to bring peace to Darfur and see an end to ongoing impunity in the region, he said finally.


DOCTOR MASHABANE (South Africa) said that as a State party to the Court, his Country was committed to implementing all elements of the Rome Statue, as well as to the fight against impunity.  It was only through an end to the conflict in Darfur that the people of the region would be able to live in peace and dignity.  To that end, he called for further support to the efforts of the African Union.  South Africa noted that the number of arrest warrants had increased and was very concerned about the issues raised by the Prosecutor’s report.  The report, which noted aerial bombardment and other troubling actions, had only intensified the need to ensure peace and security for the people of Darfur.


“It is, after all, for the victims that we extend our efforts.  So relieving their plight should be our primary concern,” he said, stressing that the Council should exert all efforts to press for a political solution to the Darfur crisis.  The Council should also support implementation of the Doha agreement, including the broader effort to bring non-signatories to the negotiating table.  South Africa understood the Prosecutor’s frustration at the high number of outstanding arrest warrants, but would caution against using UNAMID as an enforcement tool to effect them.  Such a move would violate the mission’s mandate and undermine the trust that it had built with the people of the region.  He also stressed that, due to the limited scope of resolution 1593 (2005), parties not involved in the conflict were not obligated to cooperate with the Court.  That text’s remit had been shortened to accommodate the misgivings of some Council members who had misgivings about the Court.  As such, it was unlikely that the Council would adopt another resolution.  South Africa would also express its reservations about involving regional organizations to effect arrest warrants.  He said the primary objective of all actions must be alleviating the suffering of the people of Darfur and the international community must redouble its efforts to achieve that goal.


MARTIN BRIENS (France), expressing gratitude to the Prosecutor for his work, recalled that it was the Council that referred the situation in Darfur to the International Criminal Court because of the magnitude of the crimes being committed in the region.  It was not the Court’s initiative.  Impunity had allowed the indictees to continue to commit crimes in Darfur and elsewhere in Sudan.  International justice must be allowed to run its course.  National sovereignty was respected and national jurisdiction was primary in the work of the Court, but Sudan had done nothing and had not cooperated with the Court.  It was a challenge to the authority of the Security Council.  The Council therefore, should consider its options.


JOÃO MARIA CABRAL (Portugal), also thanking the Prosecutor for his work on the Court, expressed concern over the Court’s report of non-cooperation by Sudan in ensuring justice was served in Darfur, and said that other reports had shown that sexual crimes and other serious crimes continued to be committed in Darfur.  He stressed the need for all States to strengthen cooperation with the Court.


NÉSTOR OSORIO (Colombia), attributing much of the success of the International Criminal Court to the Prosecutor’s work, also noted the Court’s report of inaction by Sudan in fulfilling its responsibilities.  Neither domestic nor international justice had been served in Darfur.  Recalling the history of the referral of the situation to the International Criminal Court, he said that the obligation to cooperate with the Court included an obligation to carry out the Court’s warrants.  Non-cooperation violated obligations to the Council and the United Nations Charter.


RAZA BASHIR TARAR (Pakistan) took note of the Prosecutor’s briefing and report, and stressed that “objectivity, not politicization” should govern such briefings and reports.  Peace in Darfur was an imperative for the people of the region and throughout Sudan and should be a matter of concern for the entire international community.  “We must do more to address the situation in a holistic manner,” he said, expressing his Government’s support for the comprehensive Doha peace agreement.  Pakistan also reiterated its support for the ongoing efforts of the African Union through its High-level Implementation Panel to pursue peace, justice and reconciliation in Darfur.  Meanwhile, the Sudanese Government must take steps to ensure the peace and security in Darfur and to investigate allegations of crimes committed there.  He reiterated that the overall objective of the international community and the Council should be peace and security throughout Sudan and all members should redouble their efforts to that end.


GERT ROSENTHAL (Guatemala) said that his Government had finally completed all steps necessary to accede to the Rome Statute.  He said that under resolution 1593, the Government of Sudan and all other parties to the conflict in Darfur had a legal obligation to cooperate with the International Criminal Court.  While he understood the “extreme sensitivities” around investigating allegations of crimes committed in Darfur, the Government was nevertheless legally obligated to do so.  He was troubled by the obstacles the investigation faced, especially when there was clear evidence that, among other things, towns and villages were being bombarded and specific instructions had been given to disrupt the already difficult lives of displaced persons.  That situation was lamentable.   Guatemala believed that the Prosecutor’s Office had adhered to its mandate and had followed international legal procedures. He recognized that efforts were being taken in line with the Doha peace agreement, including human rights mechanisms.


KODJO MENAN (Togo) said the Chief Prosecutor’s report provided an overview of that official’s ongoing efforts to bring to justice those alleged to have committed injustices in Sudan, as concerned the situation in Darfur.  As such, the report revealed that no progress had been made.  The establishment of Darfur special courts had been significant, but ultimately had had no impact, as those courts had not taken up their duties and no officials had been appointed to run them.  He said the key to a lasting settlement to the conflict in Darfur rested on the will of the Sudanese Government to end impunity. The Court could not render justice unless it had the cooperation of the State. 


While the level of violence had dropped, the conflict in Darfur was not over and the humanitarian situation continued to deteriorate.  The Sudanese Government should move to implement all the Council’s resolutions, including investigating human rights violations and improving access to Darfur by relief workers.  The Council should also do its part to ensure that its resolutions were implemented and to ensure that outside parties were not allowed to inflame the situation in Darfur.


AGSHIN MEHDIYEV (Azerbaijan) said that although his country was not a signatory to the Rome Statute, it strongly believed in the universal responsibility to protect civilians and respect human rights and humanitarian law.  In that context, he said that it was important to ensure that the International Criminal Court Prosecutor acted strictly within the mandate of relevant Council resolutions.  Building domestic judicial capacity in Sudan was critical for enforcing the rule of law in the country and the international community’s assistance to Sudan in that area was much needed.  Affirming the importance of implementation of the Doha Document for peace in Darfur, he expressed concern over the activities of non-State armed groups there, calling them the main obstacle to peace and affirming the importance of their joining the peace process without preconditions.  Deploring criminality and banditry in Darfur as well, he called it the most significant threat to civilians and humanitarian workers. 


SERGEY N. KAREV (Russian Federation), noting the Prosecutor’s efforts during his tenure in his office, said that to strengthen the International Criminal Court, the Court should investigate crimes of all parties involved in a conflict in an impartial manner.  The situation in Sudan required analysis and new approaches, but invoking enforcement capacities under Chapter VII in order to bring about the arrest of the indictees was unlikely to solve the problems arising for the Court in Sudan.  He called for those who attacked peacekeepers to be brought to justice, and stressed that justice should be carried out in the general context of resolving the situation in Darfur, and no effort should stand in the way of restoring peace and post-conflict normalization.


PETER WITTIG (Germany) praised the Prosecutor for his work during his entire tenure, and understood his frustration at the open defiance of the Court and the Council by the indictees in Sudan, saying that impunity continued to characterize the situation there.  It was the obligation of that country to surrender them to the Court.  “Eventually, the Sudanese would have to decide what is best for them and their country,” he said, pointing to the lesson of the conviction of Charles Taylor.  Serious crimes must not, and will not, avoid justice, he added.  Noting that Mr. al-Bashir had not been arrested in other countries he had travelled to, he called on all States parties to the International Criminal Court to fully comply with their obligation to execute any warrant of arrest ordered by the Court.


HARDEEP SINGH PURI (India) said his country was not a signatory to the Rome Statute, but it strongly condemned acts of violence against all civilians. It was the obligation of all States to protect the lives of their citizens while maintaining social order.  States must also investigate all actions that might violate the right to life.  In that context, he said that India supported all efforts to ensure that the legitimate aspirations of the people of Darfur were fulfilled, including those being led by the African Union.  All parties to the Darfur conflict must realize that there was no military solution and must come to the negotiating table.  At the same time, India would continue to support all diplomatic efforts towards the early establishment of peace and security in Darfur.   


Speaking in his national capacity, LI BAIDONG ( China) said the situation in Darfur was easing and the implementation of the Doha Agreement was yielding progress. The international community should support full implementation of that accord and should ensure that all rebels outside the agreement came to the negotiating table. China’s position on the International Criminal Court remained unchanged, and his delegation hoped the Court’s efforts would lead to a solution to the problem. He hoped the Council and the Court would continue to cooperate to resolve the situation in Darfur.


Mr. OCAMPO took the floor again to put the Council and the Sudanese Ambassador “on notice” that his statement denying that crimes were being committed in Darfur could itself be considered a part of those alleged crimes.  The Prosecutor’s Office had the legal obligation to investigate such criminal activity and would indeed investigate whether the Sudanese Ambassador’s denial and other actions were crimes in themselves, or whether they contributed to the actions of “perpetrators operating with a specific purpose”.  He also reminded Ambassador Osman that saying that he was merely following orders would not serve as a valid excuse.  So, the Prosecutor’s Office would invite the Ambassador to cooperate with the Court and explain whether or not his denial was in fact intended to support the ongoing crimes and impunity in Darfur.  The Prosecutor’s Office would plan its activities accordingly.


Responding, Mr. OSMAN ( Sudan) said Mr. Ocampo’s statement, which he rejected, had violated all political and diplomatic norms.  It was a “direct threat” against the Government of Sudan and vividly illustrated that official’s modus operandi at the Court.  He said the statement was akin to one that could be made “by a terrorist trying to silence the voice of justice”.  If Mr. Ocampo and his supporters had been moved by Sudan’s earlier statement, which had questioned his credibility and professionalism, that did not give him the right to use the Rome Statue to intimidate diplomatic representatives. 


He said that such conduct should be rejected, and if it was permitted, it would not only undermine international justice, it would undermine the work of the United Nations.  Sudan’s accusations had shaken the Prosecutor and had driven him to “act emotionally and in an illegal and immoral manner”, which included his suggestion that the Sudanese delegation was involved in the situation in Darfur.  He hoped that the Security Council would maintain a more realistic and reasonable stance.


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