Culture of Impunity Must End for Justice to Prevail in Darfur, International Criminal Court Prosecutor Tells Security Council

SC/12863
8 June 2017
7963rd Meeting (PM)

Culture of Impunity Must End for Justice to Prevail in Darfur, International Criminal Court Prosecutor Tells Security Council

Delegates Split on Handling of Sudan’s President, Other War Crimes Suspects

The pervading toxic culture of impunity must be tackled in order for justice to prevail in Darfur, the International Criminal Court’s Prosecutor told the Security Council today as it remained split on how the matter was being handled.

Fatou Bensouda, presenting her twenty-fifth report on the situation in Darfur, pursuant to Council Resolution 1593 (2005), urged the 15-member Council to take concrete action that would help deliver justice to the victims of the crimes committed in Darfur.

Action was particularly needed in the arrest and surrender of suspects wanted by the Court, she stressed.  It remained perplexing how suspected perpetrators of heinous crimes could freely travel.  For example, the President of Sudan, Omar Al-Bashir, for whom an arrest warrant had been issued years ago, had travelled to South Africa and more recently to Jordan.  “Let us not forget, these men stand accused of multiple charges for some of the world’s most serious crimes as foreseen under the Rome Statute,” the Prosecutor said.

Inviting, facilitating or supporting the international travel of any person subject to an International Criminal Court arrest warrant was inconsistent with a commitment to international criminal justice, she stressed.  Yet both countries had declined to arrest and surrender Mr. Al-Bashir to the Court.

The Council had the power to influence both State and non-State parties to the Rome Statute in order to assist efforts to arrest and surrender the Darfur suspects, she said.  While noting that a Pre-Trial Chamber of the Court would soon decide whether South Africa acted in non-compliance with the Rome Statute, she said that at a minimum, the Council had to take concrete action in response to decisions of non-compliance referred to it by the Court.  To date, there had been 13 such decisions, and yet not one had been acted upon by the Council.  Members had to renew their engagement relating to the arrest and surrender of the Darfur suspects.  “It is imperative that we work together to restore faith and renew hope that justice for the victims in Darfur will finally be realized,” she added.

Darfur was not out of the clear, she continued, expressing concern over recent developments on the ground.  Those included:  renewed clashes between the Sudanese army and armed opposition movements; attacks and gender-based violence aimed at internally displaced persons; and a worrisome spike in arrests of political opponents of Sudan’s Government.  The Council could also influence the Government of Sudan to demonstrate its commitment to combating impunity.

Sudan’s representative said the “sorry state of the defective kangaroo Court” could only lead to its failure as its activities ran counter to international law and international covenants.  He emphasized that about 60 per cent of the world’s population lived in States that did not recognize the Court’s jurisdiction, including the Russian Federation, China and the United States.  The latest report’s incoherence was evident, he said, adding that there had been an absence of honesty and justice in stating the facts of the situation.  The Court, for its part, had played a political role.

With regard to reports of genocide, he said that at the end of 2015 the General Assembly had adopted a decision to commemorate the victims of genocide.  Sudan’s statement on that occasion had recalled a wide range of testimonies, from world leaders to international non-governmental organizations, refuting that any genocide had taken place in Darfur.

In the debate that followed, Member States expressed varying views, with some underscoring their concern at the stalemate.  France’s speaker noted that none of the goals set a dozen years ago had been met and that impunity continued to reign.  Unless the Council took action, instability would prevail and the people living in Darfur would continue to be victims, she said.

The representative of the United States said the need to bring justice to victims was overwhelming.  As former leaders responsible for war crimes had been held accountable in the past, the Council should not let Sudan be the exception.  And yet none of those individuals that had been indicted with regard to the situation in Darfur had been brought to justice.  Uruguay’s delegate urged the Council to adopt a more structured focus when considering cases of non-cooperation.

Several African countries highlighted the position of the African Union which had repeatedly urged the Council to withdraw its referral of the situation to the Court.  Ethiopia’s delegate said that the manner in which the Court had been operating had been a major disappointment.  The African Union was convinced that the referral would cause more harm than good while seriously undermining ongoing efforts to resolve the conflict.  Egypt’s representative, stating the African Union concern that the Security Council had not responded to its call to withdraw Darfur-related matters, called for the Court proceedings against President Al-Bashir to be suspended.  He disagreed with any action taken against an African State under the pretext that the State had not arrested the President and handed him over to the Court.

China’s representative urged the international community to give adequate attention to the African Union’s concerns and take a more objective stance on the matter.  All States must fully respect the territorial integrity and sovereignty of Sudan.  The delegate from the Russian Federation said his Government’s position had not changed with the release of new reports.  If there was no unity among States on how they must execute the arrest of certain people then that should be discussed within the context of the Rome Statute.  Exerting pressure in the Security Council was not appropriate, he said, adding that the Prosecutor’s Office did not want to understand that.

Also speaking today were representatives of the United Kingdom, Japan, Ukraine, Italy, Sweden, Senegal, Kazakhstan and Bolivia.

The meeting began at 3:04 p.m. and ended at 4:49 p.m.

Briefing

FATOU BENSOUDA, Prosecutor of the International Criminal Court, presenting her twenty-fifth report on the situation in Darfur, said hope for justice was high.  The evidence obtained from courageous witnesses had provided the basis for multiple arrest warrants, including for Omar Al-Bashir, Ahmad Harun, Abdel Raheem Hussein, Ali Kushayb and Abdallah Banda.  “Let us not forget, these men stand accused of multiple charges for some of the world’s most serious crimes as foreseen under the Rome Statute,” she added.  Despite budgetary constraints, her office was as determined as ever to pursue justice.

While progress had been made, serious problems persisted, she continued.  There were reports that the Sudanese army, supported by the Rapid Support Forces, had clashed with armed opposition movements in North and East Darfur.  Internally displaced persons continued to be subjected to multiple crimes, including alleged attacks against their camps and sexual and gender-based violence.  There was a worrisome increase during the reporting period of arrests and prolonged detentions of human rights activists and political opponents of Sudan’s Government.  Lasting peace in Darfur could only be achieved if the root causes of the conflict were addressed, she said.  That included tackling the pervading toxic culture of impunity in Darfur for Rome Statute crimes.  Calling on the Council to provide tangible support to her Office, she reiterated her request for the Council’s assistance in facilitating financial assistance by the United Nations.

Before the July judicial recess, a Pre-Trial Chamber of the Court would decide whether South Africa acted in non-compliance with the Rome Statute when it failed to arrest and surrender Mr. Al-Bashir in June 2015, Ms. Bensouda said.  That decision would include whether to refer South Africa to the Assembly of States Parties to the Rome Statute.  In terms of travel to States Parties, Mr. Al-Bashir had travelled to Jordan, which also had declined to arrest and surrender him.  Inviting, facilitating or supporting the international travel of any person subject to an International Criminal Court arrest warrant was inconsistent with a commitment to international criminal justice.  It was also an affront to the victims in Darfur.  The Council had the power to influence States — whether or not they were parties to the Rome Statute — to assist in the efforts to arrest and surrender the Darfur suspects.  That also applied to regional organizations.

At a minimum, the Council must demonstrate its support for the work of the Prosecutor’s Office by taking concrete action in response to decisions of non-compliance or non-cooperation referred to it by the Court, she continued.  To date, there had been 13 such decisions, and yet not one had been acted upon by the Council.  She urged the 15-member body to give serious consideration to the proposals to respond to such referrals by the Court.  The Council must also invite the Government of Sudan to demonstrate its commitment to combating impunity.  Noting the challenges in securing cooperation from several States, she urged the Council to renew its engagement in relation to the arrest and surrender of the Darfur suspects.  “It is imperative that we work together to restore faith and renew hope that justice for the victims in Darfur will finally be realized,” she added.

Statements

HELEN MULVEIN (United Kingdom), expressing concern about recent reports of violence, urged all parties to show restraint and focus efforts on the peace process.  Any changes to the African Union-United Nations Hybrid Operation in Darfur (UNAMID) must be gradual and maintain its ability to protect civilians.  More should be done to support the International Criminal Court, which needed the cooperation of States and the Council.  Calling on the Government of Sudan to cooperate fully with the Court, she expressed frustration that fugitives had continued to travel unhindered and urged those States of concern to work with the Court.  She also renewed a call for all countries to abide by their Rome Statute obligations.

TEKEDA ALEMU (Ethiopia) said many African Union member States had ratified the Rome Statute, but the manner in which the Court had been operating had been a major disappointment.  On the issue of Sudan, the African Union was convinced that the referral of the situation in Darfur to the Court would cause more harm than good while seriously undermining ongoing efforts to resolve the conflict.  The African Union had repeatedly urged the Council to withdraw its referral of the situation to the Court.  Past experiences in Africa had demonstrated the need to balance justice with security, he said, underlining the importance of finding home-grown solutions.  As an African member of the Security Council, he reiterated the African Union’s request for the Court to end its pursuit of a case against President Al-Bashir.  The situation in Darfur and the peace process had shown significant progress, but more remained to be done.  The Council should do its part, including by exerting pressure on armed movements to put an end of the suffering of the people of Darfur.  He also urged those armed groups to lay down their arms.

AMR ABDELLATIF ABOULATTA (Egypt) said that the Court proceedings against President Al-Bashir must be suspended.  The African Union had called for the withdrawal of Darfur-related matters and had expressed concern that the Security Council had not responded to that request.  The Court must be careful not to jeopardize peace and security on the African continent.  He disagreed with any action taken against an African State under the pretext that the State had not complied with the Court because it had not arrested President Al-Bashir and handed him over to the Court.

BEATRIZ NUÑEZ (Uruguay) expressed full support for the Court’s role in the trials of those responsible for the gravest crimes.  She called on Member States that were not parties to the Rome Statute to sign on in order to fight impunity and defend the victims of heinous crimes, which remained serious threats to international peace and security.  It was concerning that the position of the Council had not changed since the Prosecutor’s last report, she continued, expressing dismay at the lack of compliance and failure to implement the Rome Statute.  Recalling resolution 1593 (2005), she said that all relevant parties had a responsibility to fully cooperate with the Court.  The Council must adopt a more structured focus when considering cases of non-cooperation, she said, calling for an end to the stalemate between the Council and the Government of Sudan.

MICHELE SISON (United States) said the need to bring justice to victims was overwhelming amid shocking reports of killings, rape, torture, genocide and crimes against humanity.  Bilateral engagement had identified ways to achieve tangible improvements, with the Government of Sudan committing to a unilateral cessation of hostilities.  More steps were needed, but now there was hope for long-term progress.  Still, the victims and perpetrators must not be forgotten and justice must be served.  As former leaders responsible for war crimes had been held accountable in the past, the Council should not let Sudan be the exception.  None of those individuals that had been indicted with regard to the situation in Darfur had been brought to justice, she said, underlining the importance of supporting accountability.

TAKESHI AKAHORI (Japan) said resolution 1593 (2005) explicitly stated that cooperation with the Court was an obligation.  The Council could do more to ensure that obligation was being met, as should States parties.  Japan was encouraged by the improved security situation, but was concerned about the recent flaring of violence and the conditions facing the 2.7 million displaced persons, he said, emphasizing that perpetrators of crimes must be brought to justice.

VOLODYMYR YELCHENKO (Ukraine) expressed deep concerns about violations of international humanitarian law and that perpetrators had escaped accountability.  The Court must be supported in its work, with States providing assistance.  Unfortunately, the Government of Sudan had not done so, he said, calling on all actors and States to ensure full cooperation with the Court.  Non-compliance with the Court’s decisions and requests undermined the credibility of international justice.  Efforts should be consolidated to end impunity, he said, adding that failing to do so would only provoke further violations.

INIGO LAMBERTINI (Italy) said the prolonged stalemate over the case of Darfur must end and States must cooperate with the Court.  The Council must demand accountability for war crimes, crimes against humanity and genocide.  “There is no reason perpetrators should not be brought to justice,” he said, adding that specific processes must be established.  The Council must identify solutions and dialogues with countries must examine ways to ensure that justice was served for war crimes.  Domestic systems must be engaged in the process, with a view to ensuring justice was served for victims of such crimes.  The root causes of instability must be examined, including addressing the moral wounds of the past.

ZHANG DIANBIN (China) commended the efforts of Sudanese authorities and called on the international community to support mediation efforts of the African Union.  He also urged the Sudan Liberation Army to join the peace process unconditionally.  The international community must take an objective stance and fully respect the territorial integrity and sovereignty of Sudan.  The legitimate concerns of the African Union must be given adequate attention.

EVGENY T. ZAGAYNOV (Russian Federation) welcomed steps by the Government of Sudan to facilitate the delivery of humanitarian aid and to settle issues involving UNAMID. Regarding the investigation of the situation in Darfur, he said the character of the Prosecutor’s report had been the same.  The position of the Russian Federation had not changed.  Once again, the Council had been called on by the Prosecutor to follow up on matters not appropriate to its work.  If there was no unity among States on how they must execute the arrest of certain people then that must be discussed within the context of the Rome Statute.  Exerting pressure in the Security Council was not appropriate, he reiterated.  And yet, the Prosecutor’s Office did not want to understand that.

IRINA SCHOULGIN NYONI (Sweden) said the Council had an obligation to follow through on its decisions and to refer the situation in Darfur to the Court.  Mindful of tensions between the Court and some African States, she called on the Government of Sudan to fully cooperate in accordance with resolution 1593 (2005) and to fulfil its obligation to arrest the individuals subject to arrest warrants.  Concerned that President Al-Bashir and others indicted by the Court continued to travel internationally, she said the Council should approach cases of non-cooperation in a structured manner.  While welcoming the current reduction of fighting and progress made in the peace process, she expressed concern by reports of incidents of renewed violence and human rights violations and abuses.  The root causes of instability must be addressed in order to tackle remaining challenges and build a sustainable peace.

SHERAZ GASRI (France) said none of the goals set a dozen years ago had been met and impunity continued to reign.  Unless the Council took action, instability would prevail and the people living in Darfur would continue to be victims.  Pointing to improved conditions, she said civilian protection could only be secured if stability was maintained.  Given the lack of the rule of law, criminality had continued.  Recent clashes had affected the population indiscriminately, sowing fear and displacing many.  Fostering their return meant all violence must stop, but breaking the cycle of violence meant that impunity must end.  All States must cooperate with the Court, including Sudan, which needed to execute arrest warrants.  The Council’s responsibility was clear.  Cooperation with the Court needed to be effective and cases of non-compliance must be addressed.  France proposed that States not cooperating with the Court could speak to the Council, which would decide on follow-up actions.

GORGUI CISS (Senegal) said the fight against impunity called for joint efforts by all parties involved.  Restoring the rule of law was a fundamental principle.  Peace was a shared objective and working through dialogue with a view to serving justice was a difficult, but necessary exercise.  Senegal was convinced that it was only through dialogue and reconciliation that a lasting peace could be achieved, as outlined by the African Union.  Reports of attacks on internally displaced persons were a concern, he said, calling on authorities to take steps to bring perpetrators to justice.  Turning to the Court, the Office of the Prosecutor needed to carry out its mandate within a restricted budget, which could limit its work, he said, adding that the required funding must be provided.  The spirit of dialogue and cooperation was the best guarantee to find a solution to achieve peace and justice.

DIDAR TEMENOV (Kazakhstan) noted the considerable progress in the security and humanitarian situation in Sudan and encouraged efforts to maintain that positive trend, with determined steps to further reduce the tensions between the Government forces and other groups.  Kazakhstan was confident that inclusive dialogue was the only way to resolve the Darfur crisis, and in that regard, his delegation supported the inclusive political process being pursued under the leadership of the African Union High-Level Implementation Panel.  Respecting the sovereignty, independence and territorial integrity of Sudan, as well as the Government’s ownership and leadership of the political process, were crucial elements for long-term peace and reconciliation in Darfur.  “We need to support Sudan’s capability to restore and promote the rule of law, address impunity and protect human rights,” he stressed.

SACHA SERGIO LLORENTTY SOLÍZ (Bolivia), Council President for June, spoke in his national capacity, saying that those who had attacked civilian populations must be brought to justice.  Pointing to difficulties that the Office of the Prosecutor had faced, he expressed hope that ongoing efforts would address the issue of non-cooperation thereby strengthening processes aimed at achieving peace.  The African Union’s cooperation was essential in the fight against impunity, he said, calling for a dialogue between the Union and the Court.  With full respect for its obligations to the Rome Statute, Bolivia called on all States to ratify the instrument.  The non-ratification of the Statue weakened the Court’s work.

OMER DAHAB FADL MOHAMED (Sudan) said there had been no consensus on the decision to refer the situation in Darfur to the Court.  Regarding reports of genocide, he said that at the end of 2015 the General Assembly had adopted a decision to commemorate the victims of genocide.  Sudan’s statement on that occasion had recalled a wide range of testimonies, from world leaders to international non-governmental organizations, refuting that any genocide had taken place in Darfur.  The Court Prosecutor had continued to use offensive language against the President of Sudan and against the Security Council, including “the failure” of the Council or the “loss of its credibility”.

The sorry state of the defective kangaroo Court could only lead to its failure as its activities ran counter to international law and international covenants, he said, emphasizing that about 60 per cent of the world’s population lived in States that did not recognize the Court’s jurisdiction, including the Russian Federation, China and the United States.  The latest report’s incoherence was evident.  Asking how many cases had the Court dealt with and at what cost, he said there was an absence of honesty and justice in stating the facts of the situation.  The Court, for its part, had played a political role.

For information media. Not an official record.