International Criminal Court’s Chief Prosecutor, Briefing Security Council, Criticizes Failure to Address Sudan’s ‘Persistent Failure’ on Darfur

SC/12393
9 June 2016
7710th Meeting* (AM)

International Criminal Court’s Chief Prosecutor, Briefing Security Council, Criticizes Failure to Address Sudan’s ‘Persistent Failure’ on Darfur

Decision to Refer Situation ‘Unfounded’, Permanent Representative Stresses

The Chief Prosecutor of the International Criminal Court today criticized the Security Council’s continuing failure to help bring to justice those indicted for atrocity crimes in Darfur, Sudan, more than a decade ago.

“Sadly, my Office’s countless appeals to you for action to address the persistent failure of Sudan to comply with its international obligations have not been heeded,” said Fatou Bensouda in her semi-annual briefing to the 15-member Council on the situation in the strife-torn western region of Sudan.  “How many more such findings must be rendered by the Court to spur this Council to action?”

She said the Council had also been conspicuously silent about Sudan’s non-compliance with Council resolutions, thereby emboldening President Omar al-Bashir to travel across international borders despite the Court’s two arrest warrants against him.  Its inaction had in turn emboldened States to invite the President and facilitate his travel into their territories, she said, noting that some of them had publicly expressed pride in their disregard of the Council’s authority, further fuelling the prospect for a lingering conflict.  Without stronger and more committed action by the Council and States parties, the situation would not improve, she warned.

Since the adoption of Security Council resolution 1593 (2005), referring the Darfur situation to the Office of the Prosecutor, the victims’ quest for justice was still far from realized, she said.  The commission of grave crimes continued, resulting in further victimization and suffering.  Once a ruling of non-compliance had been referred to the Court, pursuant to article 87.7 of its founding Rome Statute, the Council was duty-bound to act, she said.  She urged it to give due consideration to New Zealand’s constructive proposal calling for a structured approach to address the Court’s findings.

She said that her Office continued to pursue the case, but lack of access to Sudanese territory, resource constraints and non-execution of long-outstanding arrest warrants had slowed the investigations.  There had been an increase in violence and insecurity, a rise in the number of internally displaced persons since 2014, and restrictions on humanitarian access to conflict areas where vulnerable civilian populations resided.  In addition, 107 incidents of sexual crimes against women had been reported, she said, noting that forces aligned with the Government of Sudan and other unidentified assailants had been alleged to be the main perpetrators.

Following the Chief Prosecutor’s briefing, Council members expressed deep concern about the continued suffering in Darfur, calling for an end to all attacks on civilians and aid workers, and for a negotiated political solution to resolve the conflict.  Several speakers urged the Government of Sudan to comply with the Court’s rulings, and said that the Council must make its interaction with the Court more effective.  The Russian Federation’s representative supported the creation of a special ministerial committee to address the concerns of African countries.

Venezuela’s representative expressed concern over attempts to politicize the Court’s work, while those of Angola and Egypt reiterated the African Union’s request that the Court suspend criminal proceedings against President Bashir, while urging the Council to withdraw its referral.

The representative of France, Council President for June, expressed concern about the Government’s expulsion of the head of the Office for the Coordination of Humanitarian Affairs.

Spain’s representative said all obstacles must be lifted to enable the African Union-United Nations Hybrid Operation in Darfur (UNAMID) to carry out its mandate.  While echoing that concern, the representative of the United States expressed surprise and disappointment at calls by the President and Vice-President of Sudan to halt the creation of a hybrid court to seek redress for Darfur victims.

Sudan’s representative said the Council’s decision to refer the Darfur situation to the Court had been unfounded.  It was unfortunate that countries of the northern hemisphere had exempted themselves from its jurisdiction, while African countries suffered discriminatory treatment.  Moreover, the Court lacked competence over certain nationalities, no matter how gruesome their crimes, he said, asserting that the Prosecutor’s report seemed like a pretext to justify the Court’s continuing jurisdiction over Sudan.

He said that UNAMID’s report covering the same period noted a decline in tribal conflicts and criminal acts, as well as an increase in coordination between Sudanese security agencies and the mission.  In addition, the joint working group had acknowledged efforts by the Government and the prosecutor for the Darfur Special Crimes Court to address the crimes committed during the conflict and to restore law and order.

Also speaking today were representatives of the United Kingdom, Senegal, New Zealand, Ukraine, Malaysia, China, Uruguay and Japan.

The meeting began at 11 a.m. and ended at 12:55 p.m.

Briefing

FATOU BENSOUDA, Chief Prosecutor of the International Criminal Court, noted that, more than a decade after Security Council resolution 1593 (2005) had referred the situation in Darfur to her Office, the victims’ quest for justice was still far from realized and grave crimes continued to be committed, resulting in further victimization and suffering.  “Sadly, my Office’s countless appeals to you for action to address the persistent failure of Sudan to comply with its international obligations have not been heeded,” she said, adding that the Council had been equally consistent in its conspicuous silence over Sudan’s non-compliance with Council resolutions.  That inaction had emboldened President Omar al-Bashir to travel across international borders despite two arrest warrants against him and emboldened States to invite him into their territories and facilitate his travel.  “How many more such findings must be rendered by the Court to spur this Council to action?” she asked.

That evolving trend risked setting an ominous precedent, she said, pointing out that it had emboldened some States publicly to express pride in disregarding the Council’s authority.  It continued to exacerbate the frustrations of victims and should be a matter of great concern to all.  The Council must appreciate fully and embrace its inter-institutional relationship with the Court, within the framework of the Rome Statute, she said, emphasizing that once a ruling of non-compliance had been referred to the Court, pursuant to article 87.7 of the Rome Statute, it was duty-bound to act.  “The Council cannot and must not remain silent and non-responsive on such judicial findings,” she stressed, urging it to give due consideration to New Zealand’s constructive proposal calling for a structured approach to dealing with the Court’s findings of non-compliance.  Informal interactive dialogue between the Council and the Office of the Prosecutor would also generate proposals to strengthen their existing relationship.

Sudan’s failure to cooperate with the Court was a breach of resolution 1593 (2005), and the failure by non-States parties to arrest and surrender suspects was a breach of that text and of the Rome Statute, she pointed out.  Despite such challenges, however, the Office of the Prosecutor continued to investigate with a view to delivering justice, but lack of access to Sudan’s territory, resource constraints and non-execution of long-outstanding arrest warrants had contributed to the slow progress in the investigations.  Leads that could potentially yield additional evidence continued to be followed, even as the modest Darfur team from the Office of the Prosecutor divided their time and energies between the Darfur dossier and other cases, she said, while stressing that her Office would not falter or rest until President Bashir and others wanted by the Court were brought to justice.

She went on to express concern over the increase in violence and insecurity in Darfur, the rise in the number of internally displaced persons since 2014 and restrictions on humanitarian access to conflict areas with vulnerable civilian populations.  Increased aerial bombardments and ground attacks had led to more than 400 civilian deaths and destroyed up to 200 villages.  In addition, 107 incidents of sexual crimes against women had been reported, she said, adding that forces aligned with the Government and other unidentified assailants were alleged to be the main perpetrators.  More than 129,000 people had been displaced from Jebel Marra since mid-January, she said, while also voicing concern over reports that the Government of Sudan Rapid Support Forces had been involved in the commission of crimes during the reporting period.

Underlining that the Government’s continuing military attacks must be halted, she said the Council must no longer tolerate the deterioration of the humanitarian situation in Darfur and the ongoing non-cooperation by the Government.  Calling for the Council’s meaningful follow-up to demonstrate its commitment to the Darfur victims and to accountability, she warned:  “Without stronger and committed action by this Council and States parties, the situation in Sudan is unlikely to improve,” adding:  “The alleged perpetrators of serious crimes against the civilian population will not be brought to justice, and the prospects for a lingering conflict will become more acute.”

Statements

EVGENY T. ZAGAYNOV (Russian Federation), while taking note of the Secretary-General’s reports, expressed surprise at its tone and the lack of unity among all the relevant parties.  He asked the Chief Prosecutor to provide further information about her work.  The Russian Federation would support the establishment of the Special Ministerial Committee that would look into the concerns of African countries, he said.  Regarding data on victims, civilians and internally displaced persons in Darfur, he noted that they were not endorsed by the Office for the Coordination of Humanitarian Affairs.  In fact, the report was feeding the Security Council assertions, he said, emphasizing the need to strike a balance between serving justice and achieving lasting peace.

AHILA SORNARAJAH (United Kingdom) emphasized that her country would continue to support all initiatives to fight widespread sexual violence.  The Chief Prosecutor should be congratulated for her hard work, she said, expressing her delegation’s strong support to the International Criminal Court.  It was frustrating that President Omar al-Bashir had been hosted by various States parties to the Rome Statute during the reporting period, she said, reminding all States of their legal obligations under Security Council resolution 1593 (2005).

GORGUI CISS (Senegal) said his country had great faith in, and continued to promote dialogue with, the International Criminal Court through the African Union.  With their broad ratification of the Rome Statute, African countries had demonstrated their commitment to combating impunity around the world.  Emphasizing that there could be no military solution in Darfur, he said dialogue and reconciliation were the only means to resolve the situation.  The African Union’s appeal for justice in Darfur must be heeded, he said, stressing also that attacks against women, children and humanitarian staff must end, and perpetrators must be held to account.

WILMER ALFONZO MÉNDEZ GRATEROL (Venezuela), expressing his delegation’s firm support for the Chief Prosecutor’s efforts in fighting impunity and strengthening the international judicial system, said the situation in Darfur remained a source of concern despite the gradual progress made.  Venezuela shared the Prosecutor’s concerns over the impact of violence on the civilian population, he said, emphasizing that perpetrators of violence should be tried in order to promote confidence in institutions.  While Venezuela supported the Prosecutor’s efforts to ensure accountability, the Court should investigate the situation in Darfur objectively, he said, voicing concern about attempts to politicize its work.  That would undermine the Court, he cautioned.

PHILLIP TAULA (New Zealand) pointed out that resolution 1593 (2005) placed an obligation on the Government of Sudan to cooperate fully and provide any necessary assistance to the International Criminal Court and the Chief Prosecutor.  Those obligations had been widely ignored, he said, adding that victims were losing hope that justice would ever be done.  Furthermore, Sudan had not responded to the Court’s requests for assistance in the case against Abdallah Banda.  The Security Council must be more structured in considering findings of non-cooperation, he emphasized, adding that it must discuss how to achieve a more productive relationship with the Government of Sudan.

JOÃO IAMBENO GIMOLIECA (Angola), reiterating the African Union’s position on the International Criminal Court’s activities, recalled the bloc’s request that the Court suspend criminal proceedings against President Bashir.  The African Union also intended to seek a more productive relationship with the Security Council, he said, while advocating for dialogue in settling disputes in Darfur.

YURIY VITRENKO (Ukraine), expressing deep concern about the increased violence and insecurity in Darfur, the growing number of internally displaced persons and restrictions on humanitarian access to conflict areas, strongly condemned the aerial bombardments and ground attacks, as well as reports of human rights violations, particularly sexual crimes against women.  Arrest warrants against suspects should be carried out and Sudan must comply with its obligations, he emphasized.  Particular attention must be paid to the 11 judicial decisions on non-compliance and requests for appropriate action by States parties and non-States parties that had failed to execute arrest warrants.  Member States should consolidate their efforts to fight impunity, he stressed, urging all States parties to the Rome Statute to carry out the arrest of individuals wanted by the Court.

ROMÁN OYARZUN MARCHESI (Spain) expressed regret for the lack of cooperation on the part of many States and the lack of support from the Council, emphasizing that it must act, if for nothing more than consistency.  The Council must at least be coherent with its own requirements.  The conflict in Darfur must end, he emphasized, reminding all parties of their obligations under international humanitarian law.  Calling for an end to all attacks against civilians, he said the Government must protect them and remove all obstacles to the African Union-United Nations Hybrid Operation in Darfur (UNAMID) carrying out its mandate.

RAMLAN BIN IBRAHIM (Malaysia), expressing strong concern about the humanitarian and security environment in Darfur, reminded the international community of its responsibility under international law.  Emphasizing that the conflict in Darfur could not be solved by military means, he said it was the Government’s responsibility to create an environment conducive to peace.

AMR ABDELLATIF ABOULATTA (Egypt) said his delegation supported the African Union’s position on the situation in Darfur.  While the bloc’s member States were committed to fight impunity, in accordance with its Constitutive Act, it had requested the suspension of criminal proceedings against President Bashir and urged the Security Council to withdraw its referral, he recalled.  The International Criminal Court should refrain from taking further measures and respect the sovereignty and territorial integrity of African States, he emphasized.

SHEN BO (China) welcomed the fact that the Government of Sudan had signed the 2011 Doha Agreement, and called for its rapid implementation.  The international community should adopt an objective, fair position and create favourable external conditions to support implementation of the accord and the return of peace and stability in Darfur, he said.  China welcomed the European Union’s creation of a ministerial committee to deal with the Darfur situation at the International Criminal Court, he said, while emphasizing the need to pay full heed to the legitimate concerns of the African Union.

DAVID PRESSMAN (United States) noted that 60,000 people in Darfur had been displaced since January, bringing the total number thus affected to 2.7 million.  More than 5 million people were in need of humanitarian aid, and the United States was deeply concerned by the expulsion by the Government of Sudan of the head of the Office for the Coordination of Humanitarian Affairs.  The Government had also hampered UNAMID’s ability to perform, and the unacceptable high vacancy rates affecting the mission’s human resources and protection staff were due to the systematic denial of visas by the Government.  Noting that provocative actions like kicking out the head of Humanitarian Affairs Office had done little to awaken the Council’s willingness to respond, he said that such lack of action emboldened further abuse.

He went on to express surprise and disappointment at the op-ed article in The New York Times by the President and Vice-President of Sudan, in which they called for halting the creation of a hybrid court to seek redress for victims, noting that justice and reconciliation were part of rebuilding a nation.  The Council must do more to ensure compliance with resolution 1593 (2005) and press Sudan to fulfil its obligations under the Rome Statute, he said, calling upon all Governments not to invite, facilitate or support travel by any individual wanted by the Court.  The United States would continue to work with the Council and the international community at large to end Sudan’s many conflicts, he pledged.

LUIS BERMÚDEZ (Uruguay) said he shared the Prosecutor’s concerns about the worsening security situation, aerial bombings, sexual violence and forced displacement.  Encouraging all parties to implement resolution 1593 (2005), he said that, as a State party to the Rome Statue, Uruguay supported all initiatives to strengthen the rule of law and establish societies in which rights were fully guaranteed and respected.  Uruguay encouraged the Security Council to play a more active role, he said.

YOSHIFUMI OKAMURA (Japan) said that, as a Security Council member in 2005, his country had supported resolution 1593 (2005), which had referred the Darfur situation to the International Criminal Court.  Given the deteriorating security situation, the Court had a role to play in bringing those responsible for crimes to justice.  “Without cooperation, the International Criminal Court cannot execute its mandate,” he said, calling upon all to implement resolution 1593 (2005) fully.

ALEXIS LAMEK (France), Council President for June, spoke in his national capacity, saying attacks on women in Darfur were totally unacceptable.  The attacks against and harassment of UNAMID personnel and humanitarian workers were also worrying.  Accountability must be restored, he emphasized, adding that impunity was unacceptable.  There could be no military solution to the conflict, and dialogue must prevail, he said.  The eviction of the head of OCHA was worrisome.  The Council must make its interactions with the Court more effective and address cases of non-cooperation.  Contact with persons wanted by the Court must be limited, and the United Nations as a whole must continue implementing guidelines set forth in resolution 1593 (2005).

OMER DAHAB FADL MOHAMED (Sudan) pointed out that his country had no connection whatsoever with the International Criminal Court, and Article 13 (b) of the Rome Statute did not indicate its applicability to non-signatory States.  The decision to refer the Darfur situation had been unfounded, and it was unfortunate that countries of the Northern hemisphere had exempted themselves, while African countries suffered discriminatory treatment.  He noted that the Court had no competence over certain nationalities, no matter how gruesome the crimes they committed.

He went on to say that the report seemed like a pretext to justify continuing the Court’s jurisdiction over Sudan.  Calling attention to UNAMID’s report covering the same period, he noted that it mentioned a decline in tribal conflicts and criminal acts, and an increase in coordination between Sudanese security agencies and the mission.  While the International Criminal Court exercised jurisdiction on the basis of the unfounded presumption that Sudan’s judicial system was unwilling or unable to administer justice, the joint working group acknowledged the efforts of the Government and the prosecutor for the Darfur Special Crimes Court to address the crimes committed during the conflict and to restore law and order, he pointed out.

Ms. BENSOUDA said that the misinformation provided by the representative of Sudan in order to cover up the situation in Darfur was regrettable.  The International Criminal Court was neither an academic institution nor a non-governmental organization, but a court that investigated individuals charged with the gravest crimes of concern to the international community, she pointed out, emphasizing that those who chose to join it were bound to accept the provision of the Rome Statue.  In the case of President Bashir, it was absolutely clear that the Court was the only authority competent to investigate, and any dispute should be settled by its decision.  Therefore, it was bound to arrest him if he travelled to the territories of States parties, she said.

Mr. MOHAMED (Sudan), taking the floor a second time, said he had limited himself to speaking about the Court’s jurisdiction.  The Prosecutor was part of the Court, but she had become a party to the dispute, and had chosen to be both judge and jury, he said, adding that the same was true of the former Prosecutor.  He asked:  “What crime has the President committed visiting South Africa?”  Concerning the contradiction between Articles 27 and 98 of the Rome Statute, he said it continued to be exploited with a view to going after Heads of State and attacking States that lacked influence in the world.  That was the position upon which the Court had based, and continued to base, its actions.

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*     The 7709th Meeting was closed.

For information media. Not an official record.