Sudan Must Hand Over Former President, Other Suspects, International Criminal Court Prosecutor Tells Security Council, Urging Justice for Victims of Violence

SC/13849
19 June 2019
8554th Meeting (AM)

Sudan Must Hand Over Former President, Other Suspects, International Criminal Court Prosecutor Tells Security Council, Urging Justice for Victims of Violence

Sudan is legally obliged to transfer former President Omer Hassan Ahmed al‑Bashir and two other suspects detained in the Darfur situation to the International Criminal Court, the Chief Prosecutor told the Security Council today, outlining her willingness to engage with authorities to ensure they face impartial justice — either in The Hague or in the politically volatile country.

“Now is the time for the people of Sudan to choose law over impunity and ensure that [Court] suspects in the Darfur situation finally face justice,” said Fatou Bensouda, presenting her twenty-ninth report.  Following Mr. Al‑Bashir’s 11 April ouster, Sudan has an opportunity to depart from its policy of non‑cooperation and signal a new commitment to accountability for the victims of violence.  All five Court arrest warrants in the Darfur situation remain in force, she insisted.  “The former status quo is over.”

Mr. Al‑Bashir has been arrested and charged with domestic offences, while two other suspects — Abdel Raheem Hussein and Ahmad Harun — are reportedly detained in Khartoum, she said.  Sudan is under a legal obligation to transfer them to the Court unless it can prove it is willing and able to prosecute them for the same cases.  It is also obliged to arrest and surrender Ali Kushayb and Abdallah Banda, who are still at large, and provide her Office unfettered access to Sudan.

Recalling that civilian protesters in Khartoum were attacked on 3 June by Sudan’s Rapid Support Forces — which include members of the former Janjaweed militias linked to systematic rights abuses in Darfur — she urged the Transitional Military Council to ensure its inquiry into those events is conducted promptly.  She called for the Security Council’s strong and effective support in pursuing justice.  “We must not squander this opportunity,” she asserted.

In the ensuing discussion, delegates presented a range of views on the Court’s jurisdiction, with Côte d’Ivoire’s representative stressing that States will cooperate with the Court “only if we can dispel the clouds of useless suspicion” around the judicial body.  Resolution 1593 (2005), he recalled, encourages the Court to promote the rule of law and combat impunity.

Equatorial Guinea’s delegate meanwhile called for resumed dialogue between the Transitional Military Council and stakeholders on the content of the political transition.  He urged parties to respect all human rights, adding that Equatorial Guinea is not a party to the Rome Statute and thus ignores its jurisdiction.

The Russian Federation’s delegate cited as “strange” the Court’s opinion that a State official does not have immunity before a competent national court, as the hunt for Mr. Al-Bashir demonstrates the opposite:  the countries he visited during his presidency did recognize that immunity and refused to arrest him.  He accused the Prosecutor of “academic experimenting”, noting that limiting the freedom of a foreign State official enters the realm of inter-State relations.

Along similar lines, China’s delegate urged all parties to avoid interfering in Sudan’s internal affairs, while South Africa’s representative underscored the importance of the Sudanese people charting their own path to peace, “devoid of interference”.

Clarifying the national perspective, Sudan’s delegate said his country is not a Rome Statute party and the Court is not an organ of the United Nations.  Thus, “we are not obliged towards the Court”, he said.  The events unfolding since December 2018 are ushering in a new reality and a new regime that will respect freedom, democracy and the rule of law.

Stressing the independent nature of Sudan’s judiciary and its ability to achieve justice, he said the Public Prosecutor has started investigations into Mr. Al-Bashir — whose fair trial will begin next week — as well as Mssrs. Hussain and Harun.  He insisted that resolution 1593 (2005) does not provide an exemption from immunity, emphasizing that a targeted person remains entitled to that protection and can invoke it “in the face of the Court”.

Also speaking today were representatives of Belgium, United Kingdom, France, Germany, Dominican Republic, Indonesia, Peru, United States, Poland and Kuwait.

The meeting began at 10 a.m. and ended at 11:32 a.m.

Briefing

FATOU BENSOUDA, Prosecutor of the International Criminal Court, presented her twenty-ninth report on her Office’s activities relating to the situation in Darfur.  Following months of anti-Government protests and President Omer Hassan Ahmed al‑Bashir’s removal from power on 11 April, Sudan is in an uncertain period of political transition.  While not underestimating the complex fluidity of events unfolding, she insisted that “now is the time for the people of Sudan to choose law over impunity and ensure that [Court] suspects in the Darfur situation finally face justice in a court of law.”

Expressing deep concern about reported violence against civilians, including sexual and gender-based crimes throughout Sudan, she called for an immediate end to such abuse, robust protection for civilians and full accountability for the perpetrators.  Within the scope of the Court’s mandate and jurisdiction under the Rome Statute, “I am committed to do all that I can to secure accountability in Sudan”, she asserted.  Calling for full cooperation among all States parties, she said Sudan is at a crossroads with an opportunity to depart from its policy of complete non-cooperation with her Office and embark on a new chapter by signalling a commitment to seek accountability for the victims in the Darfur situation.  The Court is ready to engage.

While all five Court arrest warrants in the Darfur situation remain in force, the circumstances have dramatically changed, as Mr. Al‑Bashir has been deposed, arrested and charged with domestic offences, and the other suspects — Abdel Raheem Hussein and Ahmad Harun — are reportedly detained in Khartoum.  Sudan is under a legal obligation to transfer them to the Court to stand trial unless it can demonstrate it is willing and able to genuinely prosecute them for the same cases.  Consistent with the “bedrock” principle of complementarity, she is ready to engage with authorities to ensure Darfur suspects face an independent, impartial justice — either in The Hague or Sudan.  “Continued impunity is not an option,” she said.

The history of cooperation between her Office and Sudan must resume, she said, calling for the Council’s full support and inviting all stakeholders in Sudan to engage with her Office.  In its 11 April inaugural address, the Transitional Military Council made a commitment to uphold all treaties, charters and conventions — local, regional and international — a pledge she said must include a commitment to the United Nations Charter, according to which Sudan is bound by Council resolution 1593 (2005).  Recalling that the Appeals Chamber on 6 May confirmed States parties’ legal obligation to arrest Heads of State subject to its jurisdiction, she said it also confirmed that Sudan’s obligation to provide any necessary assistance to the Prosecutor — as mandated by resolution 1593 (2005) — is legally binding, and includes an obligation to surrender those Darfur suspects in custody in Sudan and to arrest and surrender those still at large:  Ali Kushayb and Abdallah Banda.  It also includes an obligation to provide her Office safe and unfettered access to Sudan.

She has repeatedly stressed that ending impunity for alleged Rome Statute crimes in Darfur is essential to maintaining peace in Darfur and beyond, she said, noting that recent events sadly demonstrate that these are not empty slogans.  In the absence of accountability, security forces, including aligned militia, allegedly continue to commit crimes against civilians.  Most recently in Khartoum, Sudan’s security forces, including the Rapid Support Forces, attacked civilian protestors on 3 June, she said, recalling that those Forces include members of the former Janjaweed militias linked to systematic human rights abuses in Darfur between 2003 and 2008.  She joined the Council in strongly condemning the recent violence, in which Sudanese authorities say 61 fatalities occurred following the 3 June attack, while civil society organizations register more than 100 deaths — the latest in a series of attacks by security forces on demonstrators since mid‑December 2018.

She urged the Transitional Military Council to ensure that its investigation into these events is conducted promptly by experts and includes all reported violations, as attacks against civilians in Darfur have continued during the reporting period and appear to be increasing in severity.  She cited in that context a January militia attack on Kura, which resulted in the killing of two civilians and the burning of nearly 50 houses, and a 9 June attack on Deleig market.  The 1.64 million internally displaced persons in Darfur meanwhile remain vulnerable, with sexual and gender-based violence continuing to restrict the free movement of women and girls, in camps and areas of return.

She shared the African Union’s concern that political events in Sudan have fostered the deterioration of security conditions in Darfur, expressing concern about the alleged seizure by the Rapid Security Forces of assets previously held by the African Union-United Nations Hybrid Operation in Darfur (UNAMID).  While her team will do its utmost to obtain justice for the victims in Darfur, it cannot secure the arrest and surrender of suspects alone.  With the Council’s support, and cooperation from Sudan’s authorities, there is an opportunity to make real progress in the pursuit of justice.  It must not be squandered.

Statements

MARC PECSTEEN DE BUYTSWERVE (Belgium) recalled that, in 2005, following the report of the international commission charged with investigating violations in Darfur, the Council adopted a historic resolution referring a case to the International Criminal Court for the first time.  In so doing, members sent a strong message to the perpetrators that they will not escape justice wherever they may be.  While the situation in Darfur remained unchanged for several years, with none of the suspects arrested or sent to the Court, Sudan’s Transitional Government now has the chance to finally bring justice to the victims by opening a new chapter in the relationship between the Government and the Court.  “The situation in Darfur cannot be separated from the situation in the rest of Sudan,” he said, pointing to continued violations of human rights — including reported cases of gender-based violence — across the country.  Stressing that the fight against impunity is more urgent than ever, he emphasized that justice must be an essential element of any lasting peace in Darfur and in Sudan more broadly.

JONATHAN GUY ALLEN (United Kingdom), reiterating his call on all States parties, as well as Sudan, to cooperate with the International Criminal Court, recalled the initial reasons for the referral of the Darfur case — namely the fact that the conflict there left some 300,000 people dead and 2.5 million people displaced.  “Let us not forget that sexual violence continues to be perpetrated in Darfur,” often by State officials and with complete impunity, he said.  Meanwhile, UNAMID recently recorded cases of human rights violations committed by the Rapid Support Forces, as well as brutality committed against peaceful protesters by the Sudanese Armed Forces.  Today, the Transitional Military Council has the opportunity to cooperate with the Court and the United Nations, to address years of economic mismanagement and to end the brutal cycle of violence in Sudan.  Urging officials to choose that path, he expressed the United Kingdom’s readiness to support a civilian administration and ensure that the many horrors committed against Sudan’s people are never seen again.

SHERAZ GASRI (France) condemned the violence reported in Sudan in recent weeks, including the unacceptable and disproportionate use of force against protesters.  “Those responsible for this violence must answer for their actions,” she stressed, voicing regret over delays in releasing the conclusions of an investigation into those events.  Calling for a negotiated, consensus-based political transition in Sudan, she said the United Nations should fully support the African Union-led mediation process to that end.  Moreover, she expressed concern about reports of violence in Darfur in recent weeks, which once again demonstrates how unstable the situation in that region remains.  The international community must do everything possible to prevent Darfur from once again descending into chaos, she stressed, urging Sudanese officials to demonstrate their political will by cooperating with the International Criminal Court in executing all arrest warrants and transferring suspects to the latter’s custody.

GENNADY V. KUZMIN (Russian Federation) said he will not comment on the internal situation in Sudan as the Council has other formats for that purpose, which can take place without the Prosecutor’s presence.  During the reporting period, the Court continued its “academic experimenting”, he said, citing its 6 May opinion that a State official does not have immunity before a competent national court.  That is strange, since the hunt for Omer Hassan Ahmed al-Bashir demonstrates the opposite:  the countries he visited during his presidency did recognize that immunity and refused to arrest him.  Recalling that the coming days will mark the 100th anniversary of the Treaty of Versailles, he said that, under its article 127, the Allies arranged for the German Kaiser, whom they accused of violating certain treaties, to appear before a court.  That plan came to naught.  The Netherlands refused to surrender the former German emperor.  Noting that the Russian Federation’s position on immunities is well known, he said the fact that the subject does not arise in today’s discussion is pernicious and dangerous.  Limiting the freedom of a foreign State official enters the realm of inter-State relations.  He called on States parties to the Rome Statute to act rationally and refrain from steps that could provoke friction among States.

KACOU HOUADJA LÉON ADOM (Côte d’Ivoire) welcomed that the Council has not failed in its support for transferring to competent national jurisdictions those accused of crimes against humanity.  “This is a call to our collective conscience,” he said, calling for those who breach international humanitarian law to be brought before such jurisdictions — in this case, the Court.  Noting that the social and political crisis in Sudan is affecting Darfur, he said Côte d’Ivoire, a Rome Statute State party, expects Sudan’s authorities to prosecute those responsible for the June events, as civilians throughout Sudan must be protected and their rights promoted.  Council resolution 1593 (2005) encourages the Court to promote the rule of law and combat impunity, and underscores the need to promote national reconciliation and the creation of both inclusive institutions and judicial processes.  This approach can restore lasting peace, he said, with the support of the African Union and international institutions.  States’ cooperation with the Court will be constructive only if “we can dispel the clouds of useless suspicion” around the judicial body.

THABO MICHAEL MOLEFE (South Africa) expressed deep concern about the continued violence and loss of life in Darfur as reported by the Prosecutor.  While noting some progress achieved in the peacekeeping and peacebuilding efforts in Darfur, South Africa remains concerned about persisting security challenges and human rights violations.  Women and children remain most vulnerable and affected by sexual violence, which continues to be used as a weapon of war in Darfur, he emphasized, urging military and security forces to respect human rights.  He strongly condemned the unjustified loss of life and reminded the transitional authorities in Sudan of their obligation to protect civilians.  He urged the Transitional Military Council to return to the internal dialogue with the aim of responding to the legitimate concerns of the Sudanese people.  That Council must also return to the framework established by the African Union and focus on finding a lasting solution to the crisis.  “It is important that the Sudanese people chart their own path of peace, devoid of interference,” he said.

JUERGEN SCHULZ (Germany) echoed expressions of concern about the excessive use of force against civilian protesters in Sudan, as well as the detainment of hundreds of civilians.  Voicing support for a political transition to a civilian‑led Government, he also backed the International Criminal Court’s assertion that the rule of law is a prerequisite for peace and stability in Sudan.  Accountability must be ensured, he stressed, emphasizing that “now is the time to act” and urging the Sudanese officials to cooperate with the Court in order to prevent and deter future crimes.  States must investigate and prosecute crimes in line with the principle of complementarity, including arresting suspects with warrants issued against them by the Court and abiding by Security Council sanctions regimes.  He also urged countries that have not yet ratified the Rome Statute to consider doing so.

JOSÉ SINGER WEISINGER (Dominican Republic) said the situation in Sudan remains a source of great concern, with violence continuing and dialogue between the parties now stalled.  Underlining the courage of the Sudanese people — who yearn for an impartial investigation into those accused of crimes against them — he said their protests will undoubtedly change the course of their country’s future.  Calling on the authorities of Sudan to cooperate with the International Criminal Court, including by granting it access to Darfur and surrendering those sought by the Court’s Prosecutors, he stressed that “now is the time for the people of Sudan to forge ahead” with zero tolerance for crimes committed against civilians.  The Security Council must stand united behind them, he added.

MUHSIN SYIHAB (Indonesia) said the security situation in Darfur remained relatively stable.  Intercommunal clashes continued to decline and “rebel groups” lost their foothold, with one remaining armed group inside Darfur growing more fragmented.  However, the peace process is stalling, and several conflict drivers have yet to be addressed.  Indonesia continues to watch developments in Sudan and review their potential impact on Darfur’s security, he said, underscoring the imperative to protect civilians and observe both international human rights and humanitarian law.  He expressed concern that rights violations are under-reported due to fear and restricted access, underlining the need to ensure that the Sudanese regain their confidence in law enforcement and judicial institutions.  Efforts to pursue justice must pay due regard to the wider efforts to achieve peace in Darfur, he said, stressing that any international actions taken must not jeopardize ongoing dialogue among Sudanese stakeholders.  The Prosecutor’s actions shall neither nullify the principle of complementarity nor prevent a Sudanese national court from invoking its jurisdiction against criminal perpetrators.

ANGEL HORNA (Peru) condemned the violence that has led to nearly 100 deaths since 9 April, stressing that the perpetrators must be brought to justice in line with the principle of complementarity.  Reiterating support for the Prosecutor, he encouraged the Transitional Military Council to arrest and surrender those suspected of crimes against humanity, war crimes and genocide.  States must cooperate with the Court in providing justice for crimes perpetrated in Darfur.  However, States parties have not complied with arrest warrants while suspects were present on their territories.  They must comply with the Court’s mandate, he insisted, stressing that the powers of the Council and Court respond to similar objectives enshrined in the United Nations Charter.

JOB OBIANG ESONO MBENGONO (Equatorial Guinea) condemned the 3 June attacks in Khartoum and expressed concern about ongoing violence in Sudan since December 2018.  Noting that UNAMID called the situation in the country “relatively stable”, marked by fewer civilian incidents than in the previous reporting period, he encouraged resumed dialogue for peace, especially in Jebel Marra where clashes persist.  Dialogue must also resume between the Transitional Military Council and stakeholders on the content of the political transition, he said, advocating for discussions to bring about a consensus-based Government which has the support of the people, in line with the African Union Peace and Security Council communiqué.  He called on all involved in the conflict to respect all human rights, adding that Equatorial Guinea is not a party to the Rome Statute and thus ignores its jurisdiction.

WU HAITAO (China) said his delegation’s long‑standing position on the situation in Darfur remains unchanged, namely its fully support for Sudan’s sovereignty.  In addition, he urged all parties to avoid interfering in Sudan’s internal affairs and to heed the legitimate demands of Sudan’s Transitional Government and the African Union.

MARK A. SIMONOFF (United States), drawing attention to reprehensible and grotesque acts of violence against protesters and internally displaced persons in Sudan, warned that unabated intercommunal violence serves as a reminder of the ongoing challenges facing the country.  Those security concerns have been execrated by delays in the Government transition, he said, calling on Sudan’s interim military authorities to cease all attacks on civilians; withdraw restrictions on media outlets and Internet freedom; respect all human rights and fundamental freedoms; and support the rapid deployment of a United Nations human rights monitoring team. Emphasizing that lasting security in Sudan will depend on a strengthened judicial system and a fully functional, civilian-led Government that is committed to reform, he said no real peace can be seen until accountability and justice for victims of atrocity crimes is ensured.  Noting that the United States continues to object to any assertion of International Criminal Court jurisdiction over non-States parties to the Rome Statute, absent a Council referral or the consent of the State, he nevertheless stressed that those concerns in no way diminish his delegation’s commitment to ensuring accountability for all atrocity crimes.

MARIUSZ LEWICKI (Poland) agreed with other speakers that, pursuant to Council resolution 1593 (2005), Sudan and all other parties to the Darfur conflict remain legally bound to cooperate fully with the International Criminal Court and its Prosecutor.  In addition, Sudan — as a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide — is legally obligated to “undertake to prevent and punish” that crime, for which Omer Hassan Ahmed al‑Bashir stands accused.  Condemning recent violence in Darfur and reports that civilians have been targeted by Government personnel, including the Rapid Support Forces, he also spotlighted the high number of internally displaced persons and continued instances of denial of humanitarian access in that region.  Urging the parties in Darfur to stop all hostilities and violence and fully respect international law, he also called for efforts to address the root causes of violence, end impunity, deter future violence and ensure full respect for fundamental rights.  Noting that the events in Darfur must be viewed in the context of Sudan’s wider situation, he condemned the latest use of violence by Government forces and emphasized that there is no justification for using force against peaceful protesters.  The Transitional Military Council should respect the aspirations of the Sudanese people and prioritize a transfer of power to a civilian-led authority, he said.

MANSOUR AYYAD SH. A. ALOTAIBI (Kuwait), Council president for June, spoke in his national capacity, recalling that the 15-member body had welcomed the improved security situation in Darfur.  Expressing hope that the Court’s procedures do not prevent Sudan from ensuring a transitional peace process or promoting security in a way that fulfils the aspirations of its people, he said the arrest of Omer Hassan Ahmed al-Bashir did not garner support from the Organization of Islamic Cooperation (OIC), of which Kuwait is a member, or other organizations which are regional partners of the United Nations.  Resolution 514, adopted at the twenty‑second Arab Summit in Sirte in 2010, outlines the Arab position on Court procedures, he explained, noting that such measures cannot undermine State sovereignty, independence or territorial integrity and urging respect for Sudan’s sovereignty.

ELSADIG ALI SAYED AHMED (Sudan) said his country is not party to the Rome Statute, and the Court is not an organ of the United Nations.  Thus, its position remains unchanged.  “We are not obliged towards the Court,” he said, welcoming the report’s reference, while late, to complementarity.  Since December 2018, Sudan has seen significant positive developments that allow for a new political reality to usher in the establishment of a regime that respects freedom, democracy and the rule of law.  Indeed, Sudan is pursuing civilian rule, meaning that there is no room for impunity.  Stressing the independent nature of the judiciary and its ability to achieve justice, per international criminal and humanitarian law, he said the Public Prosecutor has started investigations of Omer Hassan Ahmed al‑Bashir, as well as Mssrs. Hussain and Harun.

Noting that Mr. Al-Bashir will have fair trial before a national judiciary next week, demonstrating Sudan’s ability to combat impunity, he went on to stress that the report on Darfur contains contradictions, caused by erroneous statistics.  Paragraphs 25 to 41, for example, refer to events that either did not take place or were exaggerated, contradicting the Secretary-General’s report and the last strategic review, which affirmed the continued improvement of conditions in Darfur.  Moreover, the report adopted by the African Union Peace and Security Council recommends the continued drawdown of UNAMID per the agreed timeframe, he said, noting comments by the Mission’s Force Commander on 18 June regarding measures taken to facilitate a transition from peacekeeping to peacebuilding in Darfur.

He said the Appeals Court judgement in the case of Jordan was a political interpretation, rather than judicial one, violating the Rome Statute’s article 10, which outlines that “nothing in this part shall be interpreted as limiting or prejudicing existing or developing rules of international law”.  The judgement also violates international customary law, as the judges selected what suits their interests.  Insisting that Council resolution 1593 (2005) does not provide an exemption from immunity, he said immunity is a right of the State itself, not the individual in question.  The targeted person remains entitled to immunity and can invoke it in the face of the Court, he said, adding that attempts to state otherwise are a misjudgement by the Appeals Chamber and that efforts to combat impunity fall within the national judiciary’s purview.

For information media. Not an official record.