Chief Prosecutor, Briefing Security Council, Blames Non-Cooperation by States for Non-Appearance of International Criminal Court’s Sudan Indictees

Permanent Representative Criticizes Report’s ‘Fabricated’ Information on Number of Displaced, Human Rights Violations in Darfur

The International Criminal Court’s entire judicial machinery could be frustrated unless the suspects it had indicted appeared before it, the institution’s Chief Prosecutor cautioned the Security Council today, as members discussed different approaches concerning the arrest warrants issued by the Court in the case of Darfur, western Sudan.

Chief Prosecutor Fatou Bensouda, presenting her twenty sixth report on the situation pursuant to Council resolution 1593 (2005), noted that since submitting her last one, President Omar al Bashir of Sudan had travelled to a number of countries, some of which were States parties to the Rome Statute and all of which were United Nations Member States.

Those countries had not fulfilled their obligation to arrest and surrender President Bashir into the Court’s custody, she said, noting his recent travels to South Africa, Jordan, Uganda, Chad, and the Russian Federation. Expressing regret over the Security Council’s inaction in the face of that non fulfilment, she said it emboldened others to invite Mr. Bashir, safe in the knowledge that there would be no consequences.

She went on to invite Sudan to rethink its antagonistic posture towards the Court, emphasizing that its work was essential to fighting impunity. President Bashir and the other suspects were alleged to have committed serious crimes against the people of Darfur, including murder, torture and persecution, she pointed out. Underlining that time was on the side of justice rather than the side of the perpetrators, she pledged the Court’s commitment to victims.

Sudan’s representative responded by saying that the Chief Prosecutor and her Office had been blinded by political motives. Reiterating that his country was not a State party to the International Criminal Court, he said the latter’s very existence contravened the principles of State sovereignty and sovereign equality of States. Turning to the Secretary General’s latest report, he said it exceeded all norms by attacking Heads of State. It also contained fabricated information about the current situation in Darfur, the number of displaced persons, and the violations committed, all of which were outside the Prosecutor’s competence, he said, adding that its exaggerated figures, as compared to reports of Department of Peacekeeping Operations, called for a serious investigation.

Ethiopia’s representative echoed the African Union’s call for suspending the proceedings against President Bashir, saying the case was becoming an embarrassment for the International Criminal Court. The report, which showed the spectrum of countries in non compliance, was itself evidence of the weakness of the case against the President, he said, while highlighting Sudan’s contribution to the fight against terrorism and its improved international engagement.

Other delegates agreed, with the Russian Federation’s representative faulting the report for omitting many positive developments, from Khartoum’s efforts to implement the Doha Document of Peace, to the issuance of visas and customs clearances for the African Union United Nations Hybrid Operation in Darfur (UNAMID). Regarding President Bashir’s visit to other countries, he stressed: We do not intend to report to anybody on our bilateral contacts with Sudan.

Ukraine’s representative, however, said that, as Chair of the Sudan Sanctions Committee, he was concerned about continuing violations of human rights. Emphasizing the importance of bringing to account those responsible for extrajudicial killings, sexual violence and harassment of political opponents and human rights activists, he said each unimplemented Court decision widened the gap between crime and accountability.

The representative of the United States said it was unacceptable that suspects indicted by the International Criminal Court remained at large. It was disappointing that President Bashir continued to travel to countries around the world, diminishing the tremendous suffering of victims. Despite some progress, lasting peace remained elusive and accountability non existent, she said, adding: We will continue to use the tools at our disposal to promote justice for the people of Darfur.

Senegal’s representative stressed that no peace could be built upon the remnants of impunity. Justice for the victims required tireless commitment, he added, encouraging the Government of Sudan to respond to allegations of human rights violations, while underlining the essential importance of dialogue and reconciliation to realizing holistic and definitive peace.

Also speaking today were representatives of the United Kingdom, France, Sweden, Kazakhstan, Italy, Egypt, Uruguay, Bolivia, China and Japan.

The meeting began at 11:06 a.m. and ended at 12:57 p.m.

Briefing

FATOU BENSOUDA, Chief Prosecutor, International Criminal Court, presented her twenty sixth report on the situation in Darfur. She said the Court’s entire judicial machinery could be frustrated unless those it had indicted appeared before it. Expressing regret over the Security Council’s consistent failure to act when a number of States parties to the Rome Statute had welcomed President Omar al Bashir, she emphasized that there was no legal lacuna or ambiguity concerning their obligation to arrest and surrender suspects into the Court’s custody when they travelled to their respective territories. Recalling the decision of Pre Trial Chamber II relating to South Africa’s failure to arrest and surrender Mr. Bashir to the Court in June 2015, saying the Council’s repeated inaction could potentially undermine the struggle against impunity. It emboldened others to invite Mr. Bashir, safe in the knowledge that there would be no consequences from the Council for such breaches.

She went on to state that since her last report, Mr. Bashir had travelled to a number of countries, some of which were States parties and all of which were United Nations Member States. Just yesterday, Pre Trial Chamber II had found that Jordan had failed to comply with its obligations under the Rome Statute by failing to execute the Court’s request to arrest and surrender Mr. Bashir during his late March visit to that country, she noted, adding that Uganda had hosted Mr. Bashir in November 2016, despite having been referred to the Council for its failure to arrest him in May 2016. Due to the efforts of Ugandan civil society, however, an application had been filed at the International Crimes Division of the High Court in Uganda, requesting that a warrant of arrest be issued and executed against Mr. Bashir, but the High Court had declined to issue a warrant. Public records showed that Chad, another country referred to the Council for failure to arrest and surrender Mr. Bashir, had hosted the Sudanese leader during a recent official visit, she recalled, noting also his official travel to the Russian Federation, a permanent Council member, in November.

Such inaction undermined the Court’s credibility in the eyes of victims who had pinned so much hope on it, she emphasized, while also welcoming the declaration by the European Union in relation to Mr. Bashir’s visit to Uganda and the Russian Federation. Noting that Sudan maintained an antagonistic posture towards the Court, refusing all cooperation, she invited that country to rethink its position. Pointing out that Mr. Bashir and the other suspects were alleged to have committed serious crimes against the people of Darfur, including murder, torture and persecution, she emphasized that the Court’s work was essential to fighting impunity, and that the Court deserved the Council’s support. Notwithstanding the decrease in the scale of the violence in Darfur, she said, the Office of the Prosecutor continued to receive reports of unlawful killing of civilians, as well as sexual and gender based crimes. The annual operating budget for the Office was insufficient to support its growing workload, she noted, urging the United Nations to make suitable arrangements for financial support. She pledged the Court’s commitment to the victims of Rome Statue crimes allegedly committed in Darfur, underlining that time was on the side of justice, and not on the side of the perpetrators.

Statements

SUSAN JANE DICKSON (United Kingdom) welcomed the reduction in armed conflict, saying she was encouraged by improvements in humanitarian access. Whereas the situation was showing cause for cautious optimism, however, it had not yet normalized. Security issues and human rights violations made the situation volatile, particularly for internally displaced persons, she said, noting that sexual violence continued although the number of incidents had reportedly declined. A permanent ceasefire was needed so that the root causes of the conflict could be addressed, she emphasized. Welcoming the progress achieved by the African Union United Nations Hybrid Operation in Darfur (UNAMID) in the first phase of its reconfiguration, she expressed regret, however, that the Government of Sudan had not yet agreed to a new base for the mission in the Jebel Marra area. The United Kingdom urged the Government to authorize the base opening without further delay.

TEKEDA ALEMU (Ethiopia) said his delegation’s position reflected that of the African Union, which had called repeatedly for the suspension of proceedings against President Bashir. The case against him was very weak and nothing more than the Prosecutor’s report was required as the evidence validating its weakness. The spectrum of countries in non compliance is a call for change, he said, adding that the case was becoming an embarrassment for the International Criminal Court. Calling on the Council to re examine its position, he said that Sudan had been playing a leading role in fighting terrorism and had enhanced its bilateral and multilateral engagements. The lifting of the sanctions imposed by the United States was a major development, he noted. The Council was often criticized for under performance, but on this matter it had been hyperactive, he said, urging the international community to change its approach in dealing with Sudan.

ANNE GUEGUEN (France) said the goals of fighting impunity and promoting stability in Sudan had not been achieved, even after 12 years, emphasizing that prosecution was the only solution. Calling on all concerned States to implement the arrest warrants issued by the Court, she noted that civilians remained the primary victims in Sudan, and despite encouraging developments on the ground, the displaced were still afraid to return to their homes due to the presence of militia and the proliferation of weapons. To encourage the return of the displaced, it was necessary to deal with deep seated cycles of violence by bringing those responsible to justice, she said, emphasizing that States parties to the Rome Statute had a particular obligation to implement the arrest warrants issued by the International Criminal Court.

IRINA SCHOULGIN NYONI (Sweden) said she shared the Chief Prosecutor’s view that success depended on the cooperation of States, including those that had signed up to the Rome Statue as well as members of the Council. Sweden was disappointed that there had been few developments since the last meeting and that all suspects remained at large. Urging the Government of Sudan to cooperate with the Court, in accordance with Security Council resolution 1593 (2005), she said it was a matter of concern that President Bashir remained able to travel internationally. Although the number of rape cases reported in Darfur had declined, the issue of sexual violence remained and the root causes of instability must be addressed, she said, underlining that impunity and lack of accountability for violations of international human rights law could not be accepted.

FODA� SECK (Senegal) said his delegation was attached to the universal character of human rights and the fight against impunity, and aware of the International Criminal Court’s role in that struggle. Emphasizing that no peace could be built upon the remnants of impunity, he said justice for the victims required tireless commitment. Senegal encouraged the Government of Sudan to provide quick responses to allegations of human rights violations, he said, stressing that dialogue and reconciliation were essential to achieving holistic and definitive peace, as well as a sustainable solution to such issues as refugees and internally displaced persons in that part of Sudan.

BARLYBAY SADYKOV (Kazakhstan) noted the continuing progress in Darfur’s security and humanitarian situation, commending the Government of Sudan for its cooperation with the United Nations and the African Union. Khartoum’s commitment to stability had resulted in the lifting of sanctions imposed by the United States, he said, encouraging Sudan to maintain that positive momentum. The Government must secure dignified and lasting solutions for the more than 2 million internally displaced, he said. Stressing the importance of the Doha Document for Peace and commending the efforts of the African Union and UNAMID, he said Government ownership was crucial for long term reconciliation and the international community must support Sudan’s capacity to promote the rule of law.

EVGENY T. ZAGAYNOV (Russian Federation) noting the continuing decline in the fighting between Government and rebel forces, said that if there had been fighting at all, it was only at the beginning of the reporting period, and it had been residual in nature. The Prosecutor might want to more precisely reflect that trend, he said, pointing out also that the report omitted to mention of Khartoum’s efforts to implement the Doha Document. Turning to cooperation between Khartoum and the international community, he noted the issuance of visas and customs clearances for UNAMID. Sudanese forces were working constructively with the mission to protect its personnel and equipment, and the Government had taken measures to ease humanitarian access to southern Sudan, he said, noting that the report did not consider those facts worthy of mention. The States that President Bashir had visited did not intend to follow the International Criminal Court’s interpretation on questions of immunity, and we do not intend to report to anybody on our bilateral contacts with Sudan, he emphasized.

SEBASTIANO CARDI (Italy) said that despite some progress, intercommunity conflict, human rights violations, impunity and a lack of accountability persisted in Darfur. The Council was faced with a prolonged and unsatisfactory stalemate linked to a lack of cooperation, he said, emphasizing that cooperation with the International Criminal Court was a crucial element of resolution 1593 (2005). The entire international community was called to action, and the Council could decide to act or not, he said, adding that it should adopt a mechanism that would facilitate greater in depth discussion before any conclusions were reached. Such a mechanism would also create deeper engagement and allow for creative solutions to be devised, he said, emphasizing that repeating the same arguments every six months did not lead to progress, but was a reminder that justice must be done for victims in Darfur.

AMR ABDELLATIF ABOULATTA (Egypt) pointed out that there was a unified African Union position on the way in which the International Criminal Court dealt with some African issues. That position was stressed in successive resolutions adopted during regional summits, he said, citing resolution 586 from the twenty fifth summit. The resolutions stressed the need for the Court to respect international law in relation to the immunity granted to high level officials carrying out their mandates. He expressed hope that no measures would be taken to thwart the stability and sovereignty of African States.

MICHELE J. SISON (United States) recalled that more than 300,000 people had been killed since the beginning of the violence in Darfur, and both Sudanese military forces and militias had been responsible for the violence. She said her country was committed to efforts to end the conflict, as reflected in the five track engagement plan launched by the Government of the United States. Sudan had stopped aerial bombardments in 2017 and had taken meaningful steps to improve humanitarian access, but lasting peace remained elusive and accountability non existent, she noted. Calling on the Government of Sudan to uphold all its human rights obligations, she said it was unacceptable that the International Criminal Court’s suspects remained at large. It was disappointing that Mr. Bashir continued to travel to countries around the world, diminishing the seriousness of the charges against him and the tremendous suffering of the victims, she said, stressing: We will continue to use the tools at our disposal to promote justice for the people of Darfur.

VOLODYMYR YELCHENKO (Ukraine) said that, as Chair of the Sudan Sanctions Committee, he was concerned about continuing violations of human rights. All those responsible for extrajudicial killings, sexual violence and exerting pressure on political opponents and human rights activists should be brought to account, he emphasized. Without cooperation from States, all suspects would remain at large and States would use their status as an excuse to evade their responsibility to fulfil their international obligations. The Council was still not ready to give effect to the Court’s decisions on non cooperation, he said, stressing that each unimplemented decision only widened the gap between crime and accountability. Non compliance with Court decisions and requests undermined the foundation of the international criminal justice system, he said, emphasizing that anti impunity efforts should prevail over any issue impeding decisive steps towards the arrest and surrender of suspects.

LUIS HOMERO BERMASDEZ A�LVAREZ (Uruguay) said the Chief Prosecutor’s report added value to the analysis of issues on the Council’s agenda. Expressing concern about all the cases of non cooperation with the International Criminal Court, he pointed to the stipulation within Security Council resolution 1593 (2005) that the Government of Sudan and all parties to the conflict in Darfur must cooperate with the Court. Uruguay was prepared to work to ensure that the Council could play a more active role in cases of non cooperation with the Court so as to ensure that the arrest warrants were executed, he said. The word accountability was heard about issues on the Council’s agenda, he said, but unfortunately calls for accountability were never accompanied by action. The actions proposals presented by New Zealand a year ago would make it easier for the Council to act on cases of non cooperation with the Court.

SACHA SERGIO LLORENTTY SOLA�Z (Bolivia) encouraged the International Criminal Court to join the efforts of regional organizations to strengthen the political process in Sudan, particularly implementation of the Doha Document for Peace. Cooperation with the African Union was fundamental, he said, noting that the regional bloc had established a ministerial council to deal with issues relating to Sudan. Stressing the complementary nature of the International Criminal Court, he said it was important to re establish local capacity. Furthermore, the universal nature of the impunity debate was diminished by the Court’s relative incapacity due to non ratification of the Rome Statute by some States parties.

LI YONGSHENG (China) said that despite improvements in the overall situation in Sudan and the commitment of its Government to maintaining stability, Darfur still faced multiple challenges to its long term security and stability. In lending support to the Government, the international community must take an objective position, he emphasized. Calling on all parties in Darfur to continue efforts to resolve the conflict peacefully, he emphasized that the relevant opposition parties must join the political process at the earliest opportunity. He underscored the importance of the mediation efforts undertaken by regional and subregional organizations, saying the international community must fully respect Sudan’s judicial sovereignty and heed the legitimate concerns of the African Union and the Government of Sudan.

YASUHISA KAWAMURA (Japan), Council President for December, spoke in his national capacity, voicing his country’s commitment to the fight to end impunity. Japan supported resolution 1593 (2005), believing the Court had a role to play in bringing perpetrators to justice, and that cooperation with the Court was vital to successful outcomes. Urging full implementation of resolution 1593 (2005) � requiring the full cooperation of the Government of Sudan and other parties � he cautioned that continued failure would undermine the Council’s legitimacy. While huge challenges remained, there had been encouraging changes in the Darfur situation and in the Government’s behaviour, he said, pointing out that there been no open confrontation recently. Japan commended the efforts of the Government, the African Union, and the United Nations, he said, stressing that they must continue.

OMER DAHAB FADL MOHAMED (Sudan), commenting on a point by representatives relating to the collection of weapons, said the existence of light weapons in conflict zones contributed to instability and the collection of arms in Darfur was a challenge for the Government. During a recent meeting between the Vice President of Sudan and the Joint Representative of the African Union and United Nations, he recalled, the Vice President had stressed that the Government would not participate in the collection of weapons if UNAMID was to be responsible for that task.

Pointing out that his country was not a State party to the International Criminal Court, he said its Chief Prosecutor and her office had been blinded by political motives. They were unable to see a clear point of international law � any international convention or agreement was only binding upon its signatories. Security Council resolution 1593 (2005) stated that the Court’s jurisdiction was not applicable to non-States parties � in contradiction to the explicit and commanding rules of international law � and was the result of inconsistences inherent in the Rome Statute. The latest report was no different from previous ones and had gone beyond all norms by attacking Heads of State, he said.

The mere establishment of the Court on the basis of the Rome Statute contravened the principles of international law, such as national sovereignty and sovereign equality of States, he said, reiterating that international agreements and conventions were only binding on signatories. In that respect, according to paragraphs 7 and 8 of the report, the pre trial chamber had rejected a recognized principle of international law relative to immunity and subjected it to article 27(2) of the Rome Statute, he said, adding that he was not surprised by such a position, having followed the Court’s failures. The report also contained fabricated information about the situation in Darfur, the number of displaced persons and the violations committed, all of which were outside the Chief Prosecutor’s competence, he noted. It also contained exaggerated figures that did not compare to the reports of the Department of Peacekeeping Operations, he added, suggesting that a serious investigation was needed.

Source: United Nations