International Criminal Court Prosecutor Tells Security Council Her Resolve to Bring Impartial Justice to People of Darfur Remains Unshaken
The Prosecutor of the International Criminal Court this afternoon urged Member States and the Security Council to play their crucial roles in securing Sudan’s compliance in bringing to justice those charged with grave crimes, following the Council’s referral of the situation in Darfur.
“It is past time for this Council and States to join forces with the Court and civil society in devising concrete and effective strategies for the arrest of accused persons […] and to give the Court the full support it requires,” Prosecutor Fatou Bensouda said. It was her first semi-annual briefing to the Council since 12 December 2014 when she announced that the Court was suspending investigations in Darfur because none of the Sudanese individuals indicted had been brought to justice and the Council had failed to act decisively.
According to its twenty-first report, presented by Ms. Bensouda today, Sudanese President Omar al-Bashir, Sudanese Defence Minister Abdelrahim Mohamed Hussein, governor of North Kordofan State Ahmed Harun, former Janjaweed leader Ali Kushayb, and rebel figure Abdallah Banda were still wanted by the Court.
Ms. Bensouda reminded the Council that today’s briefing marked more than six years since the issuance of the first arrest warrant against Mr. al-Bashir. On 26 June, the Court’s Pretrial Chamber communicated to the Council the tenth finding of Sudan’s non-compliance in not arresting and rendering him to the Court.
Responding to those whom she said were distorting facts by alleging that the Court imposed itself on Sudan, she recounted the 2009 recommendations of the African Union high-level panel on Darfur, which underscored the right to justice for the people in Darfur. Considering subsequent developments, she wondered whether they would ever receive such justice.
She had hoped that putting a limitation on the Court’s work in Sudan would be a “clarion call” to the Council that it was long overdue for it “to heed the cries of the victims of rape and sexual abuse, torture, mass displacement and other inhumane suffering Darfurians continue to endure”.
However, her Office’s determination to bring impartial justice to the people of Darfur remained unshaken, she stated. Efforts by “detractors and naysayers” only strengthened her resolve. While Mr. al-Bashir might have escaped the law in South Africa through a premature departure from the African Union summit there, the swift judicial action by that country’s courts along with his hasty retreats in Kenya and Nigeria showed a growing affirmation of States’ obligations international law.
She encouraged States parties to the Rome Statute to plan ahead for the arrest of each individual by the Court, adding that the longer such persons remained at large, the greater the risk that further atrocities would be committed. Indeed, she said, civilians continued to bear the brunt of insecurity in Darfur. Her Office had not abandoned the victims of mass atrocities there, although investigations could not continue at the pace or intensity that she would have liked. A team dedicated to the Darfur investigations continued to carry out its work, but was now limited to monitoring and documenting incidents as they occurred, and conducting witness interviews where possible and necessary.
She urged anyone with reliable information and potential evidence of the ongoing crimes in Darfur to contact her Office and to proactively support the investigations. She called once again on the Council to ensure Sudan’s compliance with its referring resolution, and urged States parties to assess how best to arrest individuals for whom warrants had been issued. She welcomed in that regard the ongoing dialogue with States Parties, in particular with the caucus of States parties in the Council.
Following Ms. Bensouda’s briefing, Security Council members expressed deep concern over the continued suffering in Darfur, calling for it to be ended through accelerated pursuit of a negotiated political solution. Some speakers, in addition, strongly supported Ms. Bensouda’s position on ending impunity in Sudan. They underscored States’ obligations in the arrest and surrender of President al-Bashir and other indictees and called for the Council to follow up on its referral of Darfur through stronger support.
However, some speakers objected to efforts to arrest Mr. al-Bashir on a number of counts. They said, for example, that such an effort ran counter to the Darfur peace process, it represented a politicization of the Court, and it ignored African Union communications on the issues. Additionally, they said, Sudan was not a State party to the Rome Statute and must be allowed to adjudicate such matters through its own sovereign action.
Sudan’s representative said the Prosecutor’s statement was an attack on Sudan. Such statements ran counter to any political and moral decorum. His country’s participation in the discussion today did not change its position on the International Criminal Court; Sudan was not concerned with the Court’s activities as it was not a party to the Rome Statute. The prejudicial briefing of the Prosecutor was part of the blatant politicization of the Court, he said.
He maintained that the Doha peace process for Darfur contained clear-cut commitments to bring about justice and reconciliation. “Justice in the main should be achieved through the Sudanese judiciary, and the [Court] has no role or competence unless there is a lack of competence,” he concluded.
Also speaking this afternoon were the representatives of Chile, France, Lithuania, United States, China, Spain, Angola, New Zealand, Jordan, Russian Federation, Chad, United Kingdom, Nigeria, Venezuela and Malaysia.
The meeting began at 3:05 p.m. and adjourned at 4:50 p.m.
Statements
CARLOS OLGUÍN CIGARROA (Chile) said that the climate of violence and impunity continued in Darfur, making it crucial for the Council to adopt a more active stance in the context of the International Criminal Court. Attacks on civilians, human rights defenders, civil society leaders, and those involved in humanitarian assistance and peacekeeping persisted. He urged the Council to strengthen its channels for dialogue with the International Criminal Court Prosecutor, noting that the success of the Court’s investigations depended on States’ compliance. He, therefore, called on all States to work with the Court to ensure compliance with its requests. Sudan should establish a system to address human rights violations. He reiterated the need for compliance with all relevant resolutions of the Security Council.
TANGUY STEHELIN (France) recalled that resolution 1593 (2005) had referred the situation in Darfur to the International Criminal Court and that the debates that year had stressed that a referral was a way to prevent further atrocities. The Council remained accountable for the resolutions it adopted. However, the situation in Darfur was far from abating, and France was seriously concerned by fighting between the Sudanese army and rebels, in particular the aerial bombings that affected civilians. Violations of human rights and humanitarian law continued in impunity while UNAMID remained unable to fulfil its mandate. At the same time, those sought by the Court continued to hold positions at the highest levels of Sudanese Government. Welcoming the commitment by the Office of the Prosecutor during the reporting period, he said that Sudan not only refused to cooperate with the Court but was also taking no measures to provide justice for the victims of abuse. The Council would have to deal with cases of non-compliance with the Court.
He said civilians were at the heart of the 2005 resolution and must remain so today. UNAMID was a hybrid mission seeking to accomplish its mandate in difficult times; some would like to simply see its withdrawal. However, UNAMID should continue with its clear objectives and undertake long-term planning. It was important for all to support the mission without ambiguity. “We have to provide usefulness to our decisions” and to the Court, he said.
NIDA JAKUBONĖ (Lithuania) said that the security and humanitarian crisis in Darfur was marked by widespread violence, impunity and displacement. As the Prosecutor advised, there were numerous trends that could amount to crimes under the Rome Statute. “While we concur with the necessity for the Prosecutor’s Office to think strategically and prioritize its workload, we urge it to continue monitoring closely various crimes allegedly committed in Darfur.” The situation was complex, but one thing was clear: attacks against civilians were largely made possible because of the prevailing climate of impunity and because violence bred more violence. That could not continue; the Government should do more to end those attacks, ensure accountability and bring justice for the victims. All should meet their obligations under resolution 1593 (2005) to cooperate with the International Criminal Court, including on executing the outstanding arrest warrants. The Court’s latest decision against Sudan on non-compliance was a serious reminder that the Council needed to follow up on its referral.
DAVID PRESSMAN (United States) said that the public discussion of Darfur in recent weeks and months had focused on the terms “hibernation”, “exit strategy” and “non-cooperation”. But in each case, there was a deeper story to tell. The Court had announced that it would “hibernate” on the issue of Darfur; he welcomed the clarification that that did not mean disengagement. However, it was alarming that the individuals sought by the Court remained at large. Regarding the mission’s exit strategy, the need for UNAMID was now more acute than ever. It was important that the mission continue to document the ongoing violations and abuses.
With regard to the issue of non-cooperation, he said there was abundant common ground among Council members that United Nations Member States had certain obligations to carry out. The Council had an interest in ensuring compliance with its own decisions, but it must continue to focus on accountability in Darfur because it was that body that had sent peacekeepers into harm’s way there. In the absence of any national proceedings to investigate or hold accountable those that attacked peacekeepers, the Council must remain engaged. The United States opposed invitations to, and facilitation of, travel by those subjected to International Criminal Court arrest warrants with regard to the situation in Darfur.
XU ZHONGSHENG (China) said that the prominent problems in Darfur included a slow political process and the refusal of rebel groups to join the process. He expressed hope that all parties would promote implementation of the Doha Declaration. He urged countries with influence on the rebels to use it. China’s position on the role of the International Criminal Court in Darfur remained unchanged.
ROMÁN OYARZUN MARCHESI (Spain), commending the Court’s work on Sudan, agreed, however, that the failures that had occurred in follow-up were quite striking. It must be made clear that impunity could not be allowed to persist. It was an ongoing challenge, as the report of the Prosecutor showed that the human rights abuses continued in Darfur. The Rome Statue was an instrument that could put an end to such violations, but without support, there would be no end to impunity. The Council must seize new opportunities to act and, following the events in South Africa, States must find ways to support the Court, he stressed.
JULIO HELDER MOURA LUCAS (Angola), taking note of the persistent violations of human rights in Darfur, strongly urged the parties in conflict to put an end to hostilities through a negotiated political solution. Maintaining that the requests of the African Union had not been heeded by the Security Council, he appealed to the Council to forge a more cooperative relationship with the African Union on the issue of accountability in Darfur. He called on the parties there to reach an inclusive settlement that addressed all issues including accountability.
GERARD JACOBUS VAN BOHEMEN (New Zealand) said that today’s discussion brought the Council face-to-face with the fact that one of its key decisions — the Darfur referral to the International Criminal Court — was not only being flouted by the key indictees but by States that had Rome Statute commitments. There had also been criticism of the referral by some other African members of the United Nations. “This outcome — whatever its causes — is very bad for the Council and also for the International Criminal Court, for peace and for justice,” he said. The situation had led to a diminishing of the Court’s authority both in Africa and more broadly. The Council needed to reflect carefully before using its referral power; while that might satisfy an immediate objective, absent a long-term commitment from the Council, the consequences could be very negative in the long run.
In the case of the Darfur referral, Sudan’s non-compliance was not an isolated incident, he said. After 10 years of the Council failing to make inroads with the Government of Sudan or to de-escalate the crisis in Darfur, it was the relationship with Khartoum on which the international community should focus. “The Council needs to think hard about how it can change the paradigm with Khartoum, and equally, Khartoum needs to think deeply about the relationship it wants with the international community, starting with this Council,” he said.
DINA KAWAR (Jordan) reiterated the importance of the principles that underpinned the founding of the International Criminal Court. Putting an end to impunity was critical to ending the recurrence of grave crimes. Given the deteriorating humanitarian situation in Darfur, the role of United Nations peacekeepers remained essential, and there must be compliance with the relevant Security Council resolutions. The Darfur situation could only be addressed in the context of a sustainable development agenda. In order to ensure justice and development there, the involvement of all stakeholders was needed, she said.
PETR V. ILIICHEV (Russian Federation) said that the situation remained difficult and resolving it required the swift implementation of the Doha Declaration by rebel forces. The ability of the International Criminal Court to impartially investigate the allegations in Darfur was of key importance for the Court’s credibility. “We are sympathetic to the concerns that are raised more and more” about certain aspects of the Court’s activities, in particular in Africa. The Russian Federation’s position on the Court was well known. In addition to obligations under the Rome Statute, States parties must respect international law. Finally, he denounced the “information war” about the history of large-scale sexual violence in Darfur, noting that the alleged case in Tabit had now been closed. It had been based on hearsay, he said, and recommended that the international community look into the results of Sudan’s detailed investigation of that alleged case.
Mr. GOMBO (Chad) said that Darfur remained of concern to his country. A negotiated peace must be pursued there, as civilians caught between multiple factions found themselves in a difficult situation. Strongly condemning violence against civilians, peacekeepers and humanitarian workers, he agreed that perpetrators must be held accountable. In the current conditions of instability, however, it was difficult to bring about genuine justice, and for that reason, lasting peace must be priority. He appealed to the parties to pursue reconciliation and dialogue in the interest of combating impunity.
HELEN MULVEIN (United Kingdom) concurred that the humanitarian situation in Darfur was of continuing concern and required a political solution along with unfettered humanitarian access. Continued fighting along with the immunity of Sudan’s rapid support forces was of particular concern, as was the lack of access of UNAMID to sites of alleged abuses. Those responsible for human rights violations must be brought to account. She renewed her country’s call on the Sudanese Government to cooperate fully with the Court in that regard. She maintained, in addition, that there was no ambiguity among States parties concerning their responsibility with regard to fugitives. Noting that African States played a central role in the creation of the Court, she called on all States parties to the Rome Statute to meet their obligations, and on the Council to take effective action to follow up on its referral.
MARTIN SENKOM ADAMU (Nigeria), also expressing concern over continued suffering in Darfur, said he expected the Sudanese Armed Forces to help ease tensions between community groups. He called on all parties to work for a negotiated solution and to guarantee unhindered access for humanitarian workers. He also urged further dialogue between the African Union and the International Criminal Court to promote greater understanding on matters of justice.
WILMER ALFONZO MÉNDEZ GRATEROL (Venezuela) encouraged universal accession to the Rome Statute, as well as the cooperation of all Member States with the Court. He expressed concern at efforts to politicize matters of justice, which ran counter to the spirit of the Statute. It was clear that Heads of State and Government had jurisdictional immunity. For that reason, a number of regional organizations had expressed profound concern over the improperly issued arrest warrant for Syrian President Omar al-Bashir. He urged States’ cooperation with the Court on other matters, and urged strengthened cooperation between the Court and regional organizations such as the African Union. The pursuit of a negotiated solution to the Darfur conflict must be accelerated, he said, calling for an immediate end to hostilities.
SITI HAJJAR ADNIN (Malaysia) said that his delegation was deeply concerned at the security and humanitarian situations in Darfur, and at the fact that UNAMID continued to face restrictions of movement, denials of access and attacks against its personnel. The mission’s phased and gradual exit should be based on a set of benchmarks, as laid out in Annex I of the Secretary-General’s report. There was no military solution to the conflict. He strongly condemned any actions aimed at the forced overthrow of the Government of Sudan and urged the parties to the conflict to remain guided by the Doha Declaration. The Sudanese Government should relaunch direct negotiations with the parties and further encourage them to return to the negotiating table and engage constructively. Efforts by the Government to demonstrate compliance with the Security Council resolutions and its commitment to hold accountable those responsible for violations would contribute to building trust and confidence, he added.
Hassan Hamid Hassan (Sudan) drew the attention of the Prosecutor to the departure of his President from South Africa. He rejected the Prosecutor’s statement, which was an attack on Sudan; such statements ran counter to any political and moral decorum. His country’s participation in the discussion today did not change its position on the International Criminal Court; Sudan was not concerned with the Court’s activities as it was not a party to the Statute. The prejudicial briefing of the Prosecutor was part of the blatant politicization of the Court. Her report contained information without sources and selectively quoted negative information about Sudan, including information derived from mass media and non-governmental organizations. The Council had referred Darfur to the Court based on a “lopsided” report, he said, asking, “what kind of justice is this, which is based on politicization and exclusion?” His Government was keener and more able to achieve complete justice, particularly with regard to crimes in Darfur.
He said that the Doha Declaration contained clear-cut commitments with regard to justice and reconciliation, and any attempt to deviate from the Sudanese judiciary was simply an attempt to bring Sudan before the International Criminal Court. No one could transgress the competence of the Sudanese judiciary in accordance with national and international laws. Indeed, that Court had no role unless there was a lack of national judicial competence. The Office of the Prosecutor had tried to bypass the role of the national organs dealing with African cases, which had raised many African voices in protest. In addition, the report of the Prosecutor criticized States visited by the President of Sudan, which constituted brazen interference in their sovereignty. The International Criminal Court had become merely a device to target only African leaders. All peace-loving Member States would continue to receive the President of Sudan, who deserved to be venerated and welcomed. The confusion sustained by the Office of the Prosecutor proved that the ambiguous nature between the Court and the Council was still a problem beset with legal issues.
With regard to statements that the situation in Darfur had worsened, he wondered if States were talking about the same Darfur as he was. Even the former President of the United States, George W. Bush, had criticized the International Criminal Court; now that State expected Sudan to abide by the Court’s rules. “We are a sovereign State and we are not a party to the International Criminal Court,” he reiterated. He appealed to the Council not to look at the erroneous information presented by the Prosecutor, but instead, at the reconstruction and development under way in Darfur. There were many returnees trying to achieve settlement and reconciliation, and they were looking to the Council to bring pressure to bear on the rebel parties that rejected the Doha Declaration, he concluded.