Failure to Deliver Justice for Darfur Victims Cause for ‘Great Regret’, Says International Criminal Court Chief Prosecutor in Briefing Security Council

SC/12162
15 December 2015
7582nd Meeting (AM)

Failure to Deliver Justice for Darfur Victims Cause for ‘Great Regret’, Says International Criminal Court Chief Prosecutor in Briefing Security Council

Sudan Blames Tribunal for Situation, as Various Delegations Stress Government Non-Cooperation, Respect for African Union Position

The Chief Prosecutor of the International Criminal Court told the Security Council today that she wished she could declare that victims of the protracted conflict in Darfur would soon see justice at last, and that those alleged to be responsible for Rome Statute crimes in that western region of Sudan would soon be held accountable before the Court.

“Unfortunately, the reality is that the individuals against whom [International Criminal Court] arrest warrants have been issued continue to remain at large,” said Fatou Bensouda.  “I observe with great regret that the adoption of each resolution [on the issue] has, in practical terms, amounted to no more than an empty promise.”

She went on to note that, despite repeated requests for Council action, and in violation of Council resolutions, her appeals continued to go unheeded.  Not only was President Omar al-Bashir a fugitive who continued to travel across borders, but he also harboured other fugitives.  Pointing out that powers of arrest did not rest with the Office of the Prosecutor but with States, she emphasized that the Council had an important responsibility to ensure that they would uphold their obligations.

“Today, my message to the victims in Darfur is clear and unequivocal:  we shall not stop our work and we shall not despair,” she declared, adding that arrest warrants against all Sudanese fugitives remained in full force.  Without arrest and surrender, the Council would not be able to deliver on the promise to hold accountable those alleged to be responsible for committing Rome Statute crimes in Darfur, and neither would it be able to facilitate sustainable peace and security in Sudan.

“If I may be so bold, this Council must do more to demonstrate its commitment to Darfur, Sudan,” she emphasized.  “Ultimately, this august body must recognize its crucial role vis-à-vis those States, including Sudan, that have been found to be in non-compliance by the Court, and to fully assume its responsibilities to advance the objective of the Rome Statute.”  The Council’s tangible, consistent and principled support for the Court would be an important factor, not only in the maintenance of international peace and security, but also for the cause of international criminal justice.  “Indeed, the former is in many ways contingent upon the latter,” she said.

Speakers in the ensuing debate noted that the continuing violence in Darfur included attacks not only against the civilian population, but also on humanitarian workers and personnel of the African Union-United Nations Hybrid Operation in Darfur (UNAMID), as well as sexual violence and mass rapes.  None of the individuals against whom the International Criminal Court had issued arrest warrants had been arrested since the Council had referred the matter to The Hague 10 years ago in resolution 1593 (2005).  Since it was the Council that had referred the matter, not only States parties to the Rome Statute, but also other Member States were obliged to cooperate with the Court.

The United Kingdom’s representative expressed regret that persons against whom arrest warrants had been issued continued to hold high-ranking Government posts in Sudan, and called upon the Government to arrest and surrender them to the Court.  Noting that President Bashir continued to travel across international borders, she said States parties to the Rome Statute had a legal obligation to cooperate with the Court, recalling the proceedings in South Africa surrounding the President’s participation in the African Union Summit there.

Angola’s representative noted that, while the Government of Sudan had refused to hand over senior officials indicted by the Court, the Council had not adopted measures to enforce its decisions, thereby undermining the credibility of its own referrals.  The referral of high-ranking officials to the Court risked failure as they attempted to politicize the international criminal justice system, he cautioned.  Angola supported the African position on the case against the President of Sudan, he said, adding that it also supported South Africa’s decision to respect his immunities while attending an African Union summit in Johannesburg.

Chad’s representative underlined the importance of the African Union approach to working hand in hand on peace and justice at the same time, saying his delegation therefore endorsed the need to integrate justice into the task of bringing peace and democracy to Sudan.  In order to support the Court, the concerns of the African Union should be taken into account, he said, urging the International Criminal Court to step up its interaction with regional organizations, including the African Union.

The representative of the United States, Council President for December, spoke in his national capacity, saying that it was not only the people of Darfur who deserved justice, but also the men and women working there for peace.  It had been an attack against a member of UNAMID that had led the Council to refer the Darfur situation to the International Criminal Court, he recalled, emphasizing that the Council should at least be united in demanding accountability in relation to violence against peacekeepers.  The environment in which UNAMID operated was difficult and dangerous, he said, adding that those elements were compounded by the lack of cooperation on the part of the Government of Sudan, including in relation to freedom of movement for mission personnel.  There was a long way to go when food for peacekeepers was used as a tool for leverage, he noted, adding that reports on sexual violence and mass rapes remained incomplete, stymied by Sudan’s lack of cooperation with UNAMID.

Sudan’s representative said that the Prosecutor’s Office, by its encouragement of “gun-toting rebels and armed outlaws”, was responsible for all lives lost in Darfur since 2005 to date, and for human rights violations committed by such outlaws.  The approximately 9,000 complaints pertaining to 139 countries received by the Court demonstrated that it was interested in charging and investigating only African States.  Compared to the Nuremburg Tribunal, which had adjudicated hundreds of cases in one year, the Court had only processed two or three since 2002 at the cost of more than a billion euros, he noted.

He said the Court’s present report contained many “gross” references and transgressions aimed at alienating the Security Council from his country.  “I call upon the esteemed Council to take whatever action it deems appropriate,” he stated, adding that the Prosecutor had attempted to “muzzle our mouths” through threatens of litigation.  It was unclear how the International Criminal Court could legally evaluate efforts by the Government of Sudanese to defend its sovereignty and territorial integrity, its participation in multilateral diplomacy aimed at maintaining peace and stability, and its implementation, in letter and in spirit, Sudan’s obligations under international law.

Also speaking were representatives of France, Nigeria, New Zealand, Chile, Spain, Lithuania, Malaysia, Jordan, China, Venezuela and the Russian Federation.  The representative of the United Kingdom took the floor for a second time.

The meeting began at 10:35 a.m. and ended at 12:16 p.m.

Briefing

FATOU BENSOUDA, Chief Prosecutor, International Criminal Court, said she wished she could declare that the victims of the protracted conflict in Darfur would soon see justice at last, and that those alleged to be responsible for Rome Statute crimes in Darfur would soon be held accountable before the Court.  “Unfortunately, the reality is that the individuals against whom [International Criminal Court] arrest warrants have been issued continue to remain at large,” she said.  “[…] I observe with great regret that the adoption of each resolution [on the issue] has, in practical terms, amounted to no more than an empty promise.”  The people of Darfur continued to endure desolation, gross violations of human rights, indiscriminate killings, mass rape and sexual abuse, while individuals against whom arrest warrants had been issued continued to evade justice.

She went on to note that, despite repeated requests for the Council to take action, and in violation of Council resolutions, her appeals continued to go unheeded.  President Omar al-Bashir was not only a fugitive who continued to travel across borders, but he also harboured other fugitives.  Power to arrest did not rest with the Prosecutor’s Office, but with States, she pointed out, emphasizing that the Council had an important responsibility to ensure that they would uphold their obligations.  She reiterated her appeals that the Council take appropriate measures to ensure that all Darfur-situation fugitives were apprehended and brought to justice.  “Today, my message to the victims in Darfur is clear and unequivocal:  we shall not stop our work and we shall not despair,” she declared, adding that arrest warrants against all Sudanese fugitives remained in full force.

Without arrest and surrender, she continued, the Council would not be able to deliver on the promise to hold accountable those alleged to be responsible for committing Rome Statute crimes in Darfur, and neither would it be able to facilitate sustainable peace and security in Sudan.  The criminal justice process that had commenced with the Court’s issuance of arrest warrants against President Bashir and other suspects must be adequately supported.  Emphasizing that the ability of her Office to discharge the Council’s mandate effectively was hampered by lack of resources, she recalled once again the provisions of article 115(b) of the Rome Statute, in accordance with which funds for the Court might be provided by the United Nations, particularly in relation to expenses incurred due to referrals by the Council.  It was incumbent upon the Council to provide the much-needed resources for the investigative activities of the Prosecutor’s Office, she added.

“If I may be so bold, this Council must do more to demonstrate its commitment to Darfur, Sudan,” she said, stressing that it must confidently play its part in facilitating the arrest of suspects against whom the Court had issued arrest warrants.  “Ultimately, this august body must recognize its crucial role vis-à-vis those States, including Sudan, that have been found to be in non-compliance by the Court, and to fully assume its responsibilities to advance the objective of the Rome Statute.”  She encouraged regular exchanges with the Council, so that interinstitutional matters regarding the strengthening of its support and working methods in relation to the International Criminal Court could be addressed.  The Council’s tangible, consistent and principled support for the Court would be an important factor, not only for the maintenance of international peace and security, but also for the cause of international criminal justice.  “Indeed, the former is in many ways contingent on the latter,” she said, adding:  “History will surely stand witness to the tenacity of our will and ability to deliver on our respective obligations.”

Statements

HELEN MULVEIN (United Kingdom) said she shared the concerns raised about the situation in Darfur, and called upon all sides to reach a political resolution.  There were continued reports of aerial bombardments, sexual violence and forced displacements, among other violations, and the United Kingdom was especially concerned about attacks against civilians by rapid response forces.  It was also concerned about reports of attacks on humanitarian workers and peacekeepers.  Expressing regret that persons against whom International Criminal Court arrest warrants had been issued continued to hold high-ranking Government posts in Sudan, she called upon the Government to arrest and surrender them to the Court, noting also that President Bashir continued to travel across international borders.  States parties to the Rome Statute had a legal obligation to cooperate with the Court, she noted, recalling the proceedings in South Africa surrounding President Bashir’s participation in the African Union Summit there.  It was also important that all States support implementation of Council resolutions.  As for the resource constraints affecting the Office of the Prosecutor, she urged the Court to continue improving efficiency and effectiveness.

FRANÇOIS DELATTRE (France) noted that, 10 years after the adoption of resolution 1593 (2005), civilians in Darfur were still targeted for violence, in particular by the Government.  Arrest warrants had not yet been executed and five individuals continued to hold high-ranking State positions.  That encouraged ongoing violations.  Emphasizing the necessity for effective protection of civilians, he said the human consequences of the crisis remained serious as violence continued.  Given the need for unhindered humanitarian access, France regretted that the African Union-United Nations Hybrid Operation in Darfur (UNAMID) was a target of attacks and harassment, he said, noting that Sudan had not done anything to prosecute such crimes.  The Court had noted non-cooperation on Sudan’s part 11 times, he said, calling upon the entire United Nations to apply the pertinent provisions of resolution 1593 (2005).  Arrest warrants must be executed and the Council must respond to cases of non-cooperation flagged by the Court, he stressed.

USMAN SARKI (Nigeria) noted that the Office of the Prosecutor was currently monitoring several trends in Darfur that could constitute crimes under the Rome Statute.  Saying he was appalled by the sexual violence reported, he said it was important to bring the perpetrators to justice.  Nigeria deplored the attacks against and the abduction of humanitarian workers and peacekeepers, and looked forward to a determination as to whether those hostile acts fell under the Rome Statute, he said.  Ethnic clashes between tribes accounted for half of the deaths in Darfur, he pointed out, adding that, while there were Government efforts to curtail such incidents, more must be done to address the root causes of tensions.  Since a military solution was not possible, and given the need for dialogue within the framework of the Doha document, he welcomed President Bashir’s efforts to end hostilities, saying that his invitation to armed groups to lay down their arms and join the national dialogue was an expression of those efforts.

GERARD VAN BOHEMEN (New Zealand) said non-cooperation with the Court was the main issue.  Non-compliance with Chapter VII resolutions was a concern that all could share, and Sudan’s non-cooperation with the Court amounted to non-compliance with a Council resolution and Charter obligations.  The Council had responded to that situation with “deafening silence”, undermining its own credibility, which was a serious yet regular occurrence.  Noting that the Secretary-General had relayed 11 non-cooperation findings to the Council, he said the Prosecutor was trying to pursue Abdallah Banda, yet had been stymied by Sudan’s refusal to receive her communications.  Meanwhile, Mr. Banda — whom the Council had committed to bring to justice — remained at large.  When a non-cooperation finding was received, the Council should discuss it and consider all tools, such as a resolution, press statement or meeting with the country concerned.  An assessment should then be made as to which tool to use, he said, emphasizing that to ignore such issues was not a credible way forward.  The Council’s approach to Sudan was not working and New Zealand advocated building a new relationship with Khartoum.  It should have a better understanding of the situation on the ground, he said, suggesting that members visit the country.

JULIO HELDER MOURA LUCAS (Angola) noted that Council resolution 2228 (2015) expressed serious concern about the deterioration of security in Darfur.  While the Government had refused to hand over senior officials indicted by the Court, the Council had not adopted measures to enforce its decisions, thereby undermining the credibility of its own referrals, he noted, cautioning that referring high-ranking officials to the Court risked failure as they attempted to politicize the international criminal justice system.  As a member of the African Union, Angola supported the regional position on the case against the President of Sudan, he said, adding that it also supported South Africa’s decision to respect his immunities while attending an African Union summit in Johannesburg.

CRISTIÁN BARROS MELET (Chile) noted that, 10 years after the referral of the situation to the Court, Darfur’s humanitarian situation was in crisis due to a lack of adequate accountability and cooperation to promote it.  Condemning the crimes against civilians cited in the report, he emphasized that full cooperation with the Court, in line with resolution 1593 (2005), was demanded from States parties to the Rome Statute, as well as all States and relevant regional organizations.  It should be reflected in the implementation of judicial orders and ruling.  The Council must not be circumvented, he added.  Given the reported crimes, it was inconsistent that not a single arrest warrant had been executed.  Support and resources for the case should be an urgent matter, he said, pressing the Council to consider complementary financing mechanisms.  Chile would continue to foster a closer relationship between the Council and the Court because lack of follow-up on such cases amounted to failure, he said.

JUAN MANUEL GONZÁLEZ DE LINARES PALOU (Spain) emphasized that Sudan must cooperate even though it was not a party to the Rome Statute.  Resolution 1593 (2005) had been the first to refer a situation to the International Criminal Court, but after 10 years, none of the arrest warrants issued had been executed.  That situation was undermining the Council’s credibility, and the failure to act was also undermining the credibility of the Court itself.  The humanitarian and security crises in Darfur continued, as did impunity, an unacceptable situation.  The Council had made a commitment to the victims of Darfur 10 years ago, and the time had arrived to uphold that commitment.  The Government of Sudan had a special obligation to protect civilians, and all signatories to the Statute were obliged to cooperate with the Court, he said, calling upon all States parties to implement resolution 1593 (2005).  He noted that the Rome Statute articles on relations between the Council and the Court had not yet been fulfilled.

MAHAMAT ZENE CHERIF (Chad) said the security situation in Darfur was still marked by intercommunity violence and banditry.  In a context of war and instability, it was difficult to create the conditions for true justice.  That was why the African Union’s approach to working hand in hand on peace and justice issues at the same time was so pertinent.  The consideration of justice should be brought to the political process, he said, urging all Council members to support such peace initiatives as the Doha document, and to promote peace and justice through dialogue.  The Council and the African Union must speak the same language to give justice a chance, he emphasized.

He went on to commend the 10 October conference convened by President Bashir to start a national dialogue and urged all Sundanese armed movements to join that process.  It was crucial to rebuild peace in the region, he stressed, noting that his country was hosting many displaced persons from Darfur and was affected by the conflict there.  Chad endorsed the importance of including justice alongside the need to ensure peace and democracy to Sudan.  In order to support the International Criminal Court, the African Union’s concerns must be taken into account, he emphasized, urging the Court to step up its interaction with regional organizations, including the African Union.

NIDA JAKUBONĖ (Lithuania) said that the consistent message in the semi-annual briefings made clear that the International Criminal Court would be unable to achieve its mandate unless the Darfur suspects were arrested and transferred to The Hague.  Those five individuals accused of genocide, war crimes and crimes against humanity continued to evade the Court’s jurisdiction, she said, noting that some even occupied the highest posts in the Government of Sudan.  It was concerning that not only had the Government not acted, but neither had other States in a position to do so.  The Court’s latest decision against Sudan on non-compliance was a serious reminder that the Security Council must follow up on its referrals, she said.  The lack of cooperation by the Sudanese Government and other States had led to the unfortunate recent developments in the Bashir case, she said, noting that eight victims with participatory rights had withdrawn from the proceedings.  The Office of the Prosecutor must continue its support for victims of the most serious crimes in Darfur, she emphasized, recalling that the International Criminal Court was an institution born from a common understanding that injustice would be brought to light and serious crimes would not go unpunished.

RAMLAN BIN IBRAHIM (Malaysia), while acknowledging the decrease in clashes between Government forces, militia and armed movements in Darfur, voiced concern that the security situation might worsen with the onset of the dry season.  Since intercommunal clashes were due largely to competition over resources, which in turn impacted the civilian population, the Government must urgently identify and effectively address the root causes of such conflicts, he said, warning that any escalation of the if the clashes might further destabilize the Darfur region.  The Government must also investigate the attacks on UNAMID and humanitarian personnel, and bring those responsible to justice.  The increase of more than 430,000 displaced persons since the beginning of the year, in addition to the more than 2 million long-term displaced, was also of great concern.  Efforts by the Government to comply with the relevant Security Council resolutions and hold accountable those violating international human rights and international humanitarian law would contribute towards building trust and confidence, he said.

DINA KAWAR (Jordan), describing the international Criminal Court as a “pillar” in strengthening the international criminal justice system and ending impunity, expressed concern about the humanitarian situation in Darfur, the violations of international humanitarian law and attacks against both civilians and peacekeepers.  Sustainable peace could not be achieved without cooperation among all relevant stakeholders, she emphasized.

ZHAO YONG (China) described the situation in Darfur as “generally stable”, and expressed hope that the parties concerned would adhere to the political settlement and, through dialogue, seek a comprehensive political settlement.  Countries with influence over rebels in Darfur should play a constructive role, he said, calling for the creation of conducive external conditions in that regard.  China’s position on the question was unchanged, he said, emphasizing that the African Union’s concerns warranted serious attention.

RAFAEL DARÍO RAMÍREZ CARREÑO (Venezuela) said cooperation was an essential aspect outlined in resolution 1593 (2005), which called for cooperation by Sudan and the international community in order to enhance the rule of law and tackle impunity.  Cooperation among the Council, the International Criminal Court and regional bodies was critical to ensuring that political agreements based on mutual respect could be achieved in Sudan.  Underlining the importance of accountability, he said it fostered a climate of trust and was crucial for achieving peace.  Urging the Court to assess the situation in an impartial manner at all times, he stressed the importance of strengthening its credibility and expressed concern at attempts to politicize its work.  Venezuela advocated strengthening cooperation between the Court and Sudan, as well as other countries in the region, in order to ensure accountability for violations of international humanitarian law and international human rights law.

EVGENY ZAGAYNOV (Russian Federation) said the report’s late distribution to the Council meant that members had not been able to study its contents in detail.  Citing a decrease in security incidents in Darfur, owing to the weakened position of rebels who did not enjoy support from the population, he said intercommunal clashes were based on the centuries-old competition over natural resources, he said, commending Sudan’s efforts to stop ethnic clashes.  Darfur rebels were guilty of gross violations of human rights and international humanitarian law, including the recruitment and use of child soldiers, he said, drawing attention also to a statement on air strikes in the Jebel Marra region, during which 50 civilians had died.  The opposition had “no compunction” about using civilians as human shields, he added.  Noting that the support of States was crucial to attaining the Court’s goals, he said there were problems in that regard, and both the Court and States parties had concerns.  The Russian Federation also understood the concerns expressed by the African Union, he said, underscoring that State obligations could vary due to international legal standards on immunities for senior officials.  The position of the Russian Federation was broadly known, he noted, calling for a balanced approach to justice as relating to the situation in Darfur.

DAVID PRESSMAN (United States), Council President for December, speaking in his national capacity, emphasized that the intractability of the Darfur problem was no reason to accept the situation.  Noting Sudan’s continuing non-cooperation, he called upon all States to demand that it cooperate fully with the International Criminal Court.  President Bashir should not be able to travel across international borders while two warrants had been issued for his arrest, he said, adding that the fact that the President and five other individuals remained at large was an affront to the people of Darfur.  Not only did they deserve justice, but so did the men and women working for peace in the region, he said.  An attack against a member of UNAMID had brought the Council to refer the situation to the International Criminal Court, he recalled, noting that attacks against humanitarian staff and peacekeepers continued to cause deaths.  The Council should at least be united in demanding accountability regarding violence against peacekeepers.  The environment in which UNAMID operated was difficult and dangerous, which was compounded by Sudan’s lack of cooperation, including in terms of freedom of movement for UNAMID personnel.  There was a long way to go when food for peacekeepers was used as a tool for leverage, he said, pointing out that reports on sexual violence and mass rapes remained incomplete, stymied by Sudan’s lack of cooperation with UNAMID.

OMER DAHAB FADL MOHAMED (Sudan) said, among other things, that the Prosecutor’s Office, through its encouragement of “gun-toting rebels and armed outlaws”, was responsible for all lives lost in Darfur since 2005 to date, and for the human rights violations committed by such outlaws.  Furthermore, the International Criminal Court had transformed those outlaws into “more daring, hard-core criminals” who were responsible for the attacks on peacekeepers in Darfur in 2008, an incident that the global media had then distorted to implicate the Government of Sudan as having instigated affiliated militias to launch that attack.  The Court had not only discouraged outlaws from responding to invitations to join peace agreements, but instead had encouraged them to instigate rebellion against the legitimate national authority in order to cast doubt on the feasibility of the signed peace agreements.  The Court had also sought to subvert the Abuja Peace Agreement of 2006 and to divert attention from the Doha document, something “totally ignored” by the report before the Council.

In fact, there had been some positive developments previously included in the last UNAMID report of September this year, he said, adding that it noted a decrease in the displacement of civilians and the Government’s success in ending tribal hostilities.  Nonetheless, the Court’s report sought to incite racial and ethnic divisions by citing unfounded allegations of Arab settlements in Darfur.  He also pointed out that, of the approximately 9,000 complaints pertaining to 139 countries received by the Court, it was interested in charging and investigating only African States.  Compared to the Nuremburg Tribunal, which had adjudicated hundreds of cases in one year, the Court had only processed two or three since 2002 at the cost of more than a billion euros.  The present report contained many “gross” references and transgressions in a bid to alienate the Security Council from his country.  “I call upon the esteemed Council to take whatever action it deems appropriate,” he stated, adding that the Prosecutor had attempted to “muzzle our mouths” by threatening the Mission of Sudan with litigation.  It was unclear how the International Criminal Court could legally evaluate the efforts of the Government of Sudan to defend its sovereignty and territorial integrity, its participation in multilateral diplomacy aimed at maintaining peace and stability, and its implementation, in letter and in spirit, of its obligations under international law.

Ms. MULVEIN (United Kingdom), taking the floor a second time, pointed out that the International Criminal Court was just carrying out preliminary examinations of her country’s activities in Iraq and her Government was cooperating fully.  The Court was not targeting individuals or States in Africa, she emphasized, saying it was merely carrying out its mandate under the Rome Statute and the referrals by the Council.

For information media. Not an official record.