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SC/14378
10 December 2020

Justice within Reach for Darfur’s Victims, International Criminal Court Prosecutor Tells Security Council

Speakers Welcome Signing of Juba Peace Agreement

Justice in a key case is within reach for victims of crimes in Darfur, said the Prosecutor of the International Criminal Court in a 10 December video‑teleconference meeting, as she outlined improving relations with the Government of Sudan in efforts to hold perpetrators of atrocity crimes to account.

“Fifteen years after the referral of the situation in Darfur to the International Criminal Court, the victims of crimes finally have a chance to see justice in relation to one of the cases,” said Fatou Bensouda, as she updated the Council on the case against Ali Muhammad Ali Abd-al-Rahman, also known as Ali Kushayb.

Mr. Abd-al-Rahman was transferred to the Court on 9 June where he faces multiple counts of crimes against humanity.  The confirmation of his charges, originally scheduled for 7 December, was postponed to 22 February 2021.  However, due to challenges arising from the COVID-19 pandemic, a request was made to push the confirmation hearing to 31 May 2021.

The planning, preparation and conduct of missions in Europe and Africa to expedite Mr. Abd-al-Rahman’s confirmation hearing have been heavily impacted ‑ and at times, unavoidably delayed — as a result of the pandemic.

Ms. Bensouda noted that her Office continues to monitor repeated allegations of attacks on civilians, resulting in significant casualties, in Darfur, occurring mainly in June and July.  Alarmingly, there are continuing reports of sexual‑ and gender-based violence and crimes against children.

Welcoming the Juba Peace Agreement, signed on 3 October between the Sovereignty Council and the Sudan Revolutionary Front and other movements, Ms. Bensouda lauded the accord’s focus on cooperation with the International Criminal Court, including on the appearance of those wanted by it.

In October, Ms. Bensouda’s Office was able to lead its first mission to Sudan in 13 years.  The mission presented an opportunity to hear directly from the Sudanese authorities about their plans for cooperation with the Court and their commitment to accountability and justice for the people of Darfur.  During the mission, Ms. Bensouda stressed the need for her investigation to be given access to Sudan.  “I emphasized that time is of the essence as my team strives to meet the various deadlines set by the Court’s judges in Mr. Abd-al-Rahman’s case,” she declared, adding that the mission represents a turning point in her Office’s formal relationship with the Government of Sudan and that the parties are working on a memorandum of understanding on modalities of cooperation.

She stressed that outstanding arrest warrants against former Sudan President Omar al-Bashir, as well as those against, Ahmad Harun, Abdel Raheem Hussein and Abdallah Banda Abakaer Nourain remain in full force.  However, she warned the Council that her Office is yet to receive any official confirmation by Sudanese authorities on what actions are being taken in relation to the suspects, who, except for Mr. Banda, are reportedly in custody.

“We must ensure, with full respect for the principle of complementarity, that all the Court’s suspects are brought to justice through fair, objective and independent proceedings, either before the International Criminal Court or in Sudanese courts,” she concluded, assuring the Council that politics that aim to undermine the progressive movement towards greater accountability for atrocity crimes have a limited shelf life.

In the ensuing discussion, speakers welcomed the signing of the Juba Peace Agreement and the legislative mechanisms created through it.  Delegations expressed hope that such efforts can form the foundation for reconciliation and lasting peace.  Speakers also welcomed increased engagement between the Court and Sudan and urged the expedited signing of a memorandum of understanding on modalities of cooperation.  However, some Member States warned of bias by the Court and urged respect for the sovereignty of Sudan and the opinion of Sudanese authorities.

Belgium’s representative welcomed the tangible measures undertaken by Sudan for justice and accountability since the previous briefing in June.  After repealing the legislative provisions that prevented cooperation with the Court, the Sudanese authorities have made concrete commitments to transitional justice within the framework of the Juba peace accords.  Besides the creation of a commission for peace and reconciliation and a special court for Darfur, the parties pledged full cooperation with the Court regarding suspects on arrest warrants.  In applying the principle of complementarity enshrined in the Rome Statute, a judicial process can be carried out in The Hague or in Sudan.  The ongoing proceedings concerning Ali Muhammad Ali Abd–al-Rahman require for the Office of the Prosecutor to gain access to Sudanese territory to contact key witnesses and collect further evidence.  His country encourages Khartoum to rapidly conclude a memorandum of understanding with the Office.  As the focal point for the Court in this Council, his delegation has ensured to defend and promote interests of the Court, calling on the United States to reconsider its sanctions against the Prosecutor and members of her office as they hamper the Court’s proper functioning.

The representative of the United States welcomed the recent positive developments in Sudan, including the concrete steps undertaken to build a stable, human-rights-respecting future.  His delegation was encouraged by the landmark Juba Peace Agreement, he said, welcoming the formation of a special court for Darfur and other measures to address decades of conflict.  Genuine accountability must be promoted in a clear break from the past.  Washington, D.C., will continue to deepen diplomatic relations with the transitional Government of Sudan, he said, expressing support towards the establishment of an independent justice system.  More needs to be done to address the acts of genocide in Darfur and other crimes.  Emphasizing that his country champions accountability and justice, he, however, underscored the need to carefully choose the right tools.  His country is not a party to the Rome Statute and its position on the Court is well known, he added.

Germany’s representative stressed the link between human rights and mass atrocities, reminding the Council of the importance of respecting human rights to avoid such crimes.  Welcoming progress made by Sudan on accountability, he said the Juba Peace Agreement opened the door for unlimited cooperation on this dimension.  The primary responsibility to investigate and prosecute the perpetrator of atrocity crimes rests with States.  In applying the principle of complementarity, Sudan must cooperate with the United Nations and the Court.  Calling on Member States to keep up their support for the Court, he urged countries to abstain from undue interference.  He also called on States to join the Rome Statute if they have not done so.

The representative of Saint Vincent and the Grenadines said that there has been considerable progress by the Sudan transitional Government in its efforts to restore democracy, peace and stability in the country.  This progress includes the conclusion of the Juba Peace Agreement on 3 October, as well as Sudan’s commitment to usher in a new era with the United Nations Integrated Transition Assistance Mission in Sudan (UNITAMS).  Despite these advances, she expressed concern over the dire humanitarian and economic situation confronting Sudan, which are exacerbated by climate change and the COVID-19 pandemic.  Intercommunal violence, together with grave violations against the most vulnerable groups, are also very disturbing.  She called for greater cooperation between Sudan and the Court, particularly to ensure that the Office of the Prosecutor executes its mandate unfettered.  Noting the transitional Government’s decision in July to amend legislations to repeal criminal laws that prevented cooperation with the Court, she underscored that a fortified relationship between Sudan and the Court augurs well for the respect of international criminal justice.

The representative of Indonesia said that, as Sudan marches towards peace and stability, its commitment to pursue justice and accountability remains a critical element of its transition.  On public confidence in the legal system, Indonesia welcomes the Juba Peace Agreement and the national plan for the protection of civilians.  The focus now needs to be on implementing these achievements.  Indonesia is concerned over the lack of public confidence in the legal system, especially among internally displaced persons.  It welcomes the decision to establish a truth and reconciliation commission in relation to Darfur.  He called on the Government of Sudan to work with all stakeholders to nurture public confidence in the legal system and emphasized the importance of Khartoum’s effective leadership in the transitional process.

The representative of Viet Nam welcomed the recent historic developments in Sudan, particularly the signing of the Darfur Peace Agreement on 3 October.  It is critical that the Sudanese parties continue to fully implement the Agreement to bring lasting peace and development in the country.  Viet Nam looks forward to the full and timely operation of UNITAMS to support that country’s transition in this critical period.  At the same time, Viet Nam is concerned about reports on rising number of civilian casualties in the past few months due to intercommunal violence.  He called on Khartoum to take appropriate measures in addressing this issue, including acts related to violations of international humanitarian law.  It is Viet Nam’s consistent position that the State has the primary responsibility for the implementation of international humanitarian law.  The establishment of accountability for violations of international humanitarian law and serious criminal acts shall be conducted in accordance with the fundamental principles of international law, including the respect for State independence and sovereignty.

The representative of Estonia, affirming strong support for the Court, commended the Prosecutor for enhancing dialogue with the Government of Sudan and welcomed Khartoum’s commitment to work with the Prosecutor, as well as its drafting of a memorandum of understanding with the Court.  At the same time, he condemned continued violence against civilians and demanded that it end, with perpetrators brought to justice.  He called on Sudan to step up civilian protection in view of the peacekeeping transition in Darfur.  Reiterating that peace cannot be achieved without justice, he welcomed the surrender of Mr. Abd‑al‑Rahman and took note of the Offices’ plans for further investigations in Sudan as soon as possible.  He called on the country to follow through in its cooperation with the Court, including through granting full, unimpeded access to its territory and the arrest and handover of the remaining four suspects.  For the sake of the victims and peace, he expressed hope that by the next reporting period there will be further concrete steps towards the end of impunity in Sudan.

The representative of Tunisia praised the efforts of the Prosecutor to combat impunity in Sudan and welcomed political progress in the country.  The Court’s activity under its mandate there can have positive results in bringing justice for victims and supporting reconciliation, if the principles of cooperation, subsidiarity and complementarity are respected.  In that light, he hoped discussions between the Prosecutor’s Office and the Government will result in full access to Sudan’s territory and to the testimony of victims.  Engaging the parties in Darfur is equally important, he maintained, stressing the need for greater dialogue between the Office and all stakeholders so that responsibilities can be harmoniously shared between the different parties and judicial systems at the local and national levels.  He welcomed, in that context, the establishment of a special court for Darfur, with the African Union playing a role.  In addition, noting the difficulties of the transitional phase in Sudan, he emphasized the importance of international support in ensuring a democratic future for the country.

The Russian Federation’s representative said that the situation in Darfur has not undergone significant negative changes.  Intercommunal clashes in individual states and the situation regarding transhumance do not change the overall picture of what is happening there.  She commended the ongoing national strategy for the protection of civilians, welcoming Khartoum’s comprehensive approach to tackling the root causes of conflict.  Recalling that the Council has entrusted the Court with the duty to bring justice to victims for those responsible for atrocity crimes in Darfur 15 years ago, she noted that no substantial progress has been made during this period.  The Court’s work on Darfur clearly showed its incompetence, she deplored, lamenting that the Court has distorted the current customary international law on immunity.  As a result, Sudan decided to take the situation into their own hands.

China’s representative welcomed the Juba Peace Agreement as a critical step to lasting peace, urging all signatories to implement the accord and non‑signatories to sign it.  Noting that the Court is subject to unilateral sanctions, he expressed Beijing’s staunch opposition to such measures that are not in line with international law.  In applying the principle of complimentary, Sudan’s judicial sovereignty and opinions must be fully respected, he emphasized.

The representative of the Dominican Republic urged all parties to the Juba Peace Agreement to implement it without delay to ensure peace for people that have suffered too long.  This new stage in cooperation is crucial to lasting stability, he said, welcoming the outcome of recent meetings between Ms. Bensouda and Sudanese authorities.  He went on to urge Sudan to effectively act on the remaining warrants outlined in the Prosecutor’s report.  “Death, displacement and hunger have no place in a Sudan that is moving towards progress,” he declared, calling for an end to violence in Darfur.

The representative of France said prosecuting and convicting perpetrators of atrocity crimes is essential to building just and lasting peace in Sudan.  To that end, the Prosecutor’s Office must be allowed to conduct its work without impediment, she stressed, calling for a prompt signing of a memorandum of understanding between Ms. Bensouda and the Government of Sudan.  Investigators must be granted access to Sudan for the Court to implement its mandate.  Noting recent attacks on civilians in Darfur, she encouraged Sudanese authorities to fully implement the national plan for the protection of civilians and build the capacity of national authorities working to that end.

Niger’s representative, noting encouraging progress made by Sudan on the fight against impunity since the last report in June, welcomed the adoption by the Sovereign Council of Sudan in July of several legislative amendments, including the repeal of criminal law provisions which precluded any cooperation with the Court.  It is encouraging that the parties to the Juba peace accord agreed to fully cooperate with the Court on suspects on arrest warrants.  Urging the establishment of a regular dialogue and constructive relationship between Khartoum and the Court, he called for the development of a memorandum of understanding to facilitate the operation of the latter’s Office of the Prosecutor in Sudan.

The representative of the United Kingdom said that the continued work of the Prosecutor and her team is critical to ensure accountability for major crimes committed in Darfur and achieve justice for victims.  Welcoming judicial reforms in Sudan that will advance that effort, he praised cooperation between the country and Prosecutor’s Office, as well as the related provisions of the Juba Peace Agreement.  He noted that issues of concern remain, however, including the deterioration of security along with continued human rights violations, including against children.  He called on the Government to intensify its efforts in those areas and to incorporate accountability into their civilian protection plan.  Welcoming further investigative work by the Prosecutor, he called on Sudanese authorities to continue to strengthen their cooperation with the Prosecutor and ensure its access across Darfur.  He pledged that his country stood ready to assist the Government in its democratic transition in the interest of the welfare of Sudanese people.

The representative of South Africa, expressing support for the full implementation of resolution 1593 (2005), welcomed the progress made in terms of the ongoing efforts to ensure justice for the victims of the Darfur conflict, particularly the developments in the case against Mr. Abd-al-Rahman before the Court.  The questioning of Mr. Al-Bashir, Mr. Harun and Mr. Hussein by the Darfur War Crimes Investigation Commission regarding crimes committed in the province is also promising.  South Africa welcomes the establishment of a truth and reconciliation commission in relation to Darfur and a Special Court for Darfur Crimes, he said, underscoring that they will not only ensure accountability for crimes committed, but also that justice is seen to be done by the victims in Sudan.  Voicing concern about the ongoing reports of continued deaths and violence and reports by the African Union-United Nations Hybrid Operation in Darfur (UNAMID) of human rights violations related to children, he urged all stakeholders in Sudan to engage in constructive dialogue to restore peace and stability in the country.

Sudan’s representative said that the transitional Government inherited the Darfur dossier from the previous regime.  After almost 20 months, the country’s revolution is still ongoing under the slogan of “peace, freedom and justice”.  The parties to the Juba Peace Agreement agreed to address the root causes of conflict and end the decades of war.  This will allow millions of displaced civilians to go back to their villages.  An armed coalition force will be established to ensure safety in Darfur.  The national plan for civilian protection has been praised by the United Nations and the African Union.  He said he won’t comment on Mr. Abd‑al‑Rahman’s transfer to the Court’s custody, but noted that the parties to the Juba Agreement stressed their commitment to resolution 1593 (2005), by which the Council referred the Darfur situation to the Court.  The transitional Government will allow Ms. Bensouda’s Office and investigators to reach victims and crime scenes in Darfur, he pledged.

Stressing the competence of Sudan’s judicial system to fight impunity, he cited an agreement to establish the truth and reconciliation commission and a special court for Darfur.  In July, legislative amendments were introduced to repeal provisions that prevented cooperation with the Court.  In November, a decree was signed to pardon ex-combatants, except those on the Court’s arrest warrants.  The domestic trial against Mr. Al-Bashir on charges of undermining democracy is ongoing.  “Accountability for crimes against our people is a top priority of the transitional Government,” he said.  “It’s not a hollow slogan.”  Concrete steps will be taken to satisfy the victims and the bereaved.  The transitional Government values the call by Ms. Bensouda to cooperate in achieving justice, he said, adding that the format of cooperation will be discussed bilaterally.  The competent judicial authorities of Sudan have commenced “serious steps to close this file”, he emphasized.

For information media. Not an official record.