The Prosecutor of the International Criminal Court urged the Security Council and wider international community to encourage Sudan to do more to help bring Darfur war crimes suspects to justice, during a 10 June videoconference meeting* that took place a day after the surrender of a key fugitive.
Fatou Bensouda said that Ali Kushayb’s transfer to International Criminal Court custody in the Central African Republic on 3 June is a pivotal development that sends a clear signal that no matter how long it takes, or what obstacles might be put in the way, her Office will not stop until alleged perpetrators of Rome Statute crimes are brought to justice. “All ICC [International Criminal Court] suspects against whom arrest warrants have been issued must face justice,” she said, adding that her team in The Hague is keeping up its work to a notable degree despite the challenges posed by the COVID-19 pandemic.
She expressed optimism that the ongoing transitional process in Sudan — and peace talks in Juba between the Government and armed movements — augurs well for prospects to achieve justice for Darfur victims. She added that she remains hopeful that a new chapter of constructive engagement between the Court and Sudan, rooted in mutual respect and a genuine commitment to justice, may be on the horizon. Securing justice for past crimes in Darfur must remain a priority for the Government as it steers Sudan towards greater human security and prosperity.
International Criminal Court arrest warrants for four other suspects remain in force, she said, including those issued against former President Omar Al-Bashir, who is currently serving a two-year sentence in Sudan following a domestic trial on financial corruption charges. Two others — Ahmad Harun and Abdel Raheem Hussein — are reportedly still in Government custody awaiting charges, she said, expressing concern over reports that they have fallen ill with the coronavirus. Another suspect, Abdallah Banda, remains at large.
The Council, acting under Chapter VII of the United Nations, referred the situation prevailing in Darfur since 1 July 2002 to the International Criminal Court through resolution 1593 (2005). The Organization estimates that around 300,000 were killed, and around 2.7 million forced from their homes, during the conflict that involved Government forces, allied militia and armed movements.
Presenting the International Criminal Court’s thirty-first report to the Council on the situation in Darfur, the Prosecutor said that while Sudan is not a party to the Rome Statute that established the Court, it must — pursuant to resolution 1593 (2005) and subsequent orders from the Court’s judges — surrender all individuals subject to the Court’s arrest warrants. She acknowledged that Khartoum is dealing with complex challenges and competing priorities, but emphasized that meeting the Sudanese people’s legitimate demands for justice and accountability must remain at the forefront. Underscoring the importance of cooperation, and for Court personnel to access Sudanese territory, she called on Council members, States parties to the Rome Statute and the international community more broadly to encourage the Government to work with her office fully and promptly.
“Justice for Darfur has already been too elusive for too long,” she said. “It is past time for that unsatisfactory state of affairs to change. A window of opportunity has been reopened. We must collectively seize it. Let us act together to finally bring justice to the victims in Darfur.”
In the ensuing discussion, speakers recalled the Council’s decision on 4 June, through resolutions 2524 (2020) and 2525 (2020), to establish the United Nations Integrated Transition Assistance Mission in Sudan (UNITAMS) from 1 January 2021 to assist Sudan in its transition to democratic governance as the Organization looks ahead to winding down the African Union-United Nations Hybrid Operation in Darfur (UNAMID) (see Press Releases SC/14202 and SC/14203 of 4 June).
Several delegates welcomed Mr. Kushayb’s surrender and recent positive developments in Sudan and echoed the Prosecutor’s call for Khartoum to cooperate more closely and openly with the Court. Others emphasized that the Court must respect Sudan’s sovereignty, independence and territorial integrity.
The United Kingdom’s representative said that, one year after the removal of a brutal regime, Sudan is at a historic moment. Part of its transition is the pursuit of accountability and transitional justice, which must be delivered as soon as possible for the victims of Darfur. He recalled that the Government of Sudan stated in February its intention to try those indicted by the International Criminal Court for the crimes for which they have been charged. However, the United Kingdom does not yet understand how Khartoum will cooperate with the Court. It must engage swiftly with the Court and the Prosecutor, he said, adding that it should permit the Prosecutor to visit Sudan and the Darfur region as soon as COVID-19 implications allow.
Estonia’s representative said that Mr. Kushayb’s voluntary surrender into the Court’s custody is an important step in the pursuit of justice for crimes committed in Darfur. He called on Khartoum to extend meaningful cooperation towards the Court and ensure that every effort is made to prevent further violations on the ground. He also called on all States to fully engage and cooperate with the Court for the arrest and surrender to The Hague of the four remaining suspects. Hopefully, he added, the events of 9 June will mark the start of a new dialogue between Sudan’s authorities and the Court, which is a prerequisite for any meaningful path to justice and accountability.
South Africa’s representative welcomed statements by Sudanese officials indicating a willingness to cooperate with the Court, as well as the surrender of Mr. Kushayb to the Court on 9 June. He likewise welcomed that Sudanese authorities have raised the possibility of proceedings against suspects through the Court or a hybrid court in Khartoum. He expressed concern over allegations of civilian casualties in Darfur, and incidents of sexual and gender-based violence reported by the Panel of Experts, condemning these actions in the strongest terms. He also deplored all attacks against aid workers and the looting of humanitarian supplies from local non-governmental organizations. Echoing concerns about the protection of civilians, he urged all stakeholders to engage in dialogue to restore peace and stability in Sudan.
The representative of Saint Vincent and the Grenadines welcomed efforts to bring about justice for victims in Darfur and ongoing negotiations in Juba as pivotal for restoring peace. Expressing concern over protracted security and humanitarian challenges, he called for strengthening institutions to protect the most vulnerable and prosecuting the perpetrators of atrocity crimes. He looked forward to the implementation of resolutions 2524 (2020) and 2525 (2020) in this regard. Noting that Sudan’s judiciary is responsible for prosecuting atrocity crimes, and that resolution 1593 (2005) encourages Sudan to cooperate with the Court in tackling impunity, he reiterated the principle of complementarity in the application of international criminal law, observing that the Court’s jurisdiction is only invoked when States are unable or unwilling to prosecute alleged perpetrators.
The Dominican Republic’s representative said that “this is the moment for the Government of Sudan to show that accountability is a priority for the authorities”. He welcomed the possibility that International Criminal Court suspects could be tried in Sudan, as that could represent a perfect start to a cooperative and fruitful relationship between Khartoum and the Court. He voiced concern about the complex and difficult situation in Darfur, condemned attacks on humanitarian workers in the region and called on the Government to help stop sexual violence against women and girls. “It’s time the Sudanese people move forward towards a sustainable peace, based on democratic principles of justice and accountability,” he said.
Belgium’s representative, strongly welcoming Mr. Kushayb’s surrender, said that the Court cannot implement its mandate effectively without the assistance of States. He welcomed the fact that accountability for crimes in Darfur remains a central issue in the peace talks in Juba between the Government and the armed movements, and invited Khartoum to reply positively to the Prosecutor’s call for dialogue to facilitate fair and genuine proceedings against the four other Darfur suspects either in The Hague or in Sudan. He encouraged neighbouring States to help the Office of the Prosecutor to track down Mr. Banda and urged United Nations missions and agencies to strengthen their cooperation with the Court. “As attacks on civilians and humanitarian aid workers continue in Darfur, as well as violence against internally displaced persons and incidents of sexual and gender-based violence against women and girls, we need justice more than ever,” he said, calling upon the Council and Member States to support the Court and the Sudanese authorities to end impunity in Darfur in favour of a lasting peace.
Viet Nam’s representative, taking note of the Prosecutor’s report and briefing, and welcoming positive developments in Sudan, emphasized that States bear the primary responsibility for the implementation of international humanitarian law and for the prevention and suppression of serious criminal acts, especially genocide, war crimes and crimes against humanity. Viet Nam hopes that the Government of Sudan will take appropriate measures in resolving issues related to serious violations of international humanitarian and human rights laws. The prevention and suppression of serious criminal acts shall be conducted in accordance with the fundamental principles of international law, including those relating to a State’s independence and sovereignty, he added.
China’s representative said that the situation in Darfur has significantly improved and that Sudan’s peace process has made important steps forward. “China believes that Sudan is able to handle its own affairs and safeguard national sovereignty, security and stability.” He called on the international community to extend more constructive assistance for Sudan while also respecting its sovereignty, unity and territorial integrity. He added that the Court should strictly observe the principle of complementarity, fully respect the legal sovereignty of States and avoid interfering in internal affairs. Regarding Sudan, the Court should attach importance to the legitimate appeals of the Government of Sudan and the African Union on its engagement on Darfur. The Court should also respect the Government’s views, he added.
The Russian Federation’s delegate noted that the security dynamics in Darfur remain largely unchanged. Isolated incidents, as well as sporadic but low-scale clashes in Jebel Marra between Government forces and the Sudan Liberation Army of Abdul Wahid al Nur — “who actually remains the main spoiler of the peace process” — do not change the picture. The Council’s decision last week to establish UNITAMS was guided by a request from the Sudanese themselves to help their country transition from peacekeeping to peacebuilding. Such a decision supports Khartoum in precisely the way that the Sudanese need and expect, he said, adding that that principle equally applies to the process of bringing to justice those guilty of crimes in Sudan.
Tunisia’s representative called the surrender and transfer of Mr. Kushayb a “momentous development in international justice for core crimes”. The Court’s intervention was needed in 2005 due to the failure to prevent mass atrocities, whereas today, international engagement in the “new Sudan” is guided by the principle of Sudanese ownership of its transition and a renewed sense of partnership with the Council. It is within this framework, charted last week, that Tunisia views the Court’s course regarding accountability for core international crimes by Darfur suspects. Recalling that the Court is meant to be a backstop to national jurisdictions, he said its trials must not come at the expense of domestic ownership of the political transition or judicial capacity-building. “Advancing accountability in Darfur is best achieved through dialogue and empowerment of national proceedings,” he said, premised on the priority of domestic jurisdiction and need for international justice. Sudan’s authorities will require time and resources for institutional capacity-building. Its courts should be given “breathing space” to exercise jurisdiction, possibly by exploring opportunities provided for under the “complementarity scheme”. Meaningful interaction between the Court and the Government is needed to steer efforts in a common direction, he observed, and to foster options for carrying out effective investigations and prosecutions.
The representative of France, Council President for June, spoke in her national capacity, saying that Mr. Kushayb’s transfer to the Court’s custody confirms its relevance within the multilateral system. The Court must be able to carry out its work with full independence and the Prosecutor must be free to exercise her prerogatives without obstruction, threats or attacks. France is encouraged by recent statements by Sudan’s authorities expressing their determination to fight impunity and their willingness to cooperate with the Court. Effective channels for discussion must be set up, she said, adding that the execution of outstanding arrest warrants is essential. She said that the growing presence on the ground of the Office of the United Nations High Commissioner for Human Rights, including in Darfur, should enable the United Nations to support Khartoum in building a fair, democratic and inclusive Sudan.
Also participating were representatives of Germany, Indonesia, Niger, Sudan and the United States.
* Based on information received from the Security Council Affairs Division.