Security Council

5459^th Meeting (PM)

INTERNATIONAL CRIMINAL COURT PROSECUTOR BRIEFS SECURITY COUNCIL ON DARFUR,

SAYS WILL NOT DRAW CONCLUSIONS ON GENOCIDE UNTIL INVESTIGATION COMPLETE

Luis Moreno-Ocampo Tells Council, Given Scale, Complexity of Crimes,

Anticipates Prosecuting ‘Sequence of Cases, Rather Than a Single Case’

The International Criminal Court had gathered significant evidence on crimes committed in Darfur, but the Prosecutor had not, and would not, draw any conclusions regarding allegations that some of those crimes had been committed with specific genocidal intent, until the completion of a full and impartial investigation, the Security Council was told.

Briefing the Council for the third time since it had referred the situation in Darfur to the International Criminal Court on 31 March 2005, the Court’s Prosecutor, Luis Moreno-Ocampo, said that particular attention would be given to investigating crimes currently affecting the lives and safety of the 2 million displaced civilians in the region.  Given the scale of the alleged crimes and the complexities associated with identifying those bearing the greatest responsibility for them, he anticipated the investigation and prosecution as “a sequence of cases, rather than a single case” dealing with the situation in Darfur as a whole.  The gravity of the crimes was central to the process of case selection.

Identifying those with greatest responsibility for the most serious crimes was a key challenge for the investigation, he said.  The complexity of the Darfur conflict exacerbated that challenge, given that it involved multiple parties, varying over time throughout the different states and localities.  Many investigation mechanisms were reactive to complaints, but there was a “reluctance or inability” on the part of witnesses and victims to come forward, and in some cases there had been allegations of intimidation and harassment of complainants, especially regarding rape allegations. The lack of any sort of witness protection system was a serious obstacle to any effective national criminal proceedings.

He stressed, throughout his statement, the need for cooperation in order to ensure accountability, not only for past crimes, but for present crimes within the Court’s jurisdiction that continued to affect the displaced populations in Darfur.  “Our justice efforts should contribute to their protection and to the prevention of further crimes.  We need information on groups that continue to attack them or to impede their access to humanitarian assistance,” he said, calling on the Council to help his Office in obtaining that and other types of information regarding the investigation of the situation in Darfur.

His Office had gathered significant amounts of information to determine whether the Sudanese Government had dealt with, or was dealing with, the cases he was likely to select for prosecution, he said.  The Court’s concern was to see to it that effective justice was delivered to the victims, and that could be achieved either at the national level, where domestic authorities were genuinely willing and able to prosecute those most responsible, by the International Criminal Court itself, or by both.  The Sudanese Government had provided much information relating to the conduct of traditional tribal reconciliation mechanisms in Darfur, but, based upon the current assessment, it did not appear that it had investigated or prosecuted any cases that were now, or would be, the focus of his Office’s attention, nor were any such investigations or prosecutions currently under way.

Sudan’s Permanent Representative to the United Nations, Omar Bashir Mohamed Manis, said that the International Criminal Court Prosecutor had reflected very important aspects of cooperation established with the Government of the Sudan.  And that communication and cooperation had led to several positive results.  Among them, the Prosecutor had “directly and immediately” understood the situation during his visit and had heard a briefing by members of the Sudanese judiciary concerning its independence and relationship with other judicial organs in the country.  The Prosecutor had also learned that a lot of cases had been decided.  A special court had been established, which had issued sentences including execution and life in prison.  In addition, measures had been taken by the Government to provide compensation to the victims.

There was no dispute over the fact that a political settlement was the model solution and the key to stability, justice and peace in Darfur, he said.  After the signing of the Peace Agreement in Darfur on 5 May, there was now a bridge on which to cross over to security and stability.  That Agreement, however, had many challenges to overcome, uppermost among them the fact that armed groups still remained outside of it.  In addition, there were doubts about the Agreement among some other people in Darfur.  Nevertheless, the Agreement had addressed in detail all of the elements in question in Darfur, and the various signatories were trying to implement their commitments.  That effort would not succeed, unless it was accompanied by efforts at the grass-roots level, which, presently, was characterized by “extreme tribal intolerance”.

He said that success in Darfur could be achieved by activating the traditional mechanisms for the settlement of conflicts and disputes, and for reconciliation.  In fact, that process had been repeated many times in the history of Darfur, and was customary in Africa as a whole.  Repairing the tears in the social fabric was based on conciliation, amnesty and satisfying the different tribes; that was fundamental to establishing peace in Darfur.  He hoped that effort would enjoy the support and encouragement of the African Union and the international community, including the Security Council.  His Government, for its part, would continue its efforts to set up the rule of law and justice through the various courts and mechanisms in Darfur, to end impunity, and bring all the perpetrators to justice.

The meeting began at 3:05 p.m. and adjourned at 3:40 p.m.

Background

The Security Council met this afternoon to hear a briefing by the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo.  It had before it the third report of the Prosecutor, pursuant to Security Council resolution 1593(2005), which supplemented his address to the Council.  The report outlines the progress in the investigation and stresses that the swift fulfilment of the Prosecutor’s mandate requires the full and unconditional cooperation of States and organizations, particularly the Government of the Sudan and other parties to the conflict in Darfur, as well as those organizations with significant presences on the ground, such as the African Union and the United Nations.

The report covers the following:  conduct of the investigation; crime patterns; parties to the conflict/identification of individual criminal responsibility; admissibility; initiation and conduct of investigations; Darfur Special Court; other mechanisms; and tribal reconciliation.

It states that, based on the Prosecutor’s current assessment, it does not appear that the national authorities have investigated or prosecuted, or are investigating and prosecuting, cases that are or will be the focus of his Office’s attention, such as to render those cases inadmissible before the Court.  His Office reinforces the point made in previous reports that this assessment is ongoing and a final determination will be made following a full investigation of the specific cases that are selected for prosecution.  This will require the continued cooperation of the Sudanese Government in providing access to proceedings, to officials and institutions, including in Darfur, and to relevant documentation.

The Prosecutor continues to gather information from various organizations and individuals relevant to the assessment of the interests of justice, the report further states.  Progress in the investigations and prosecution of crimes in Darfur rests, in particular, on the cooperation that the Court receives from the Government of the Sudan, the African Union, the United Nations and other organizations with significant presence in the region.  The report details areas of cooperation, as well as an assessment of that cooperation by the above parties.

In conclusion, the report recalls that the Court is a complementary international mechanism to deliver justice for the most serious international crimes.  The concern of the Court is to see effective justice for the victims of the crimes in Darfur.  This can be achieved either at a national level, where the domestic authorities are genuinely willing and able to prosecute those most responsible for the most serious cases, or by the International Criminal Court.  In the coming phase, the Office of the Prosecutor will seek to complete the investigation of those individuals with the greatest responsibility for the most serious crimes, including those who are today exacerbating the suffering of displaced persons.  It will also assess the inadmissibility of cases.  The achievement of these objectives in an expeditious manner requires the full support of the Security Council and the unfettered cooperation of the international community, particularly the Government of the Sudan and all parties to the conflict, the African Union and the United Nations.

Statement by Prosecutor

LUIS MORENO-OCAMPO, International Criminal Court Prosecutor, recalled that, in adopting resolution 1593 (2005), the Security Council had affirmed that justice and accountability were critical to achieving lasting peace and security in Darfur.  That position had been reinforced in resolution 1674(2006), which concluded that the prevention of armed conflict required a comprehensive approach and that ending impunity -- through appropriate national and international mechanisms -- was essential to ensuring the non-recurrence of abuses.

He said his Office was committed to contributing to that comprehensive approach, by investigating and prosecuting crimes within the Court’s jurisdiction.  His Office would, in due course, select those to be prosecuted on the basis of the evidence collected and would present its conclusions to the judges.  The judges would finally decide who would be tried by the Court.  In accordance with its rules and policies, he would only make such a presentation, once he had gathered comprehensive and solid evidence of individual responsibility for crimes committed in Darfur and thoroughly analyzed the admissibility of its cases.  That would guarantee both fair and expeditious trials.

Given the scale of the alleged crimes in Darfur and the complexities associated with the identification of those individuals bearing the greatest responsibility for the crimes, he said his Office currently anticipated the investigation and prosecution of “a sequence of cases, rather than a single case” dealing with the situation in Darfur as a whole.  The gravity of the crimes was central to the process of case selection.  His Office looked at factors such as the scale and nature of the crimes, as well as the impact of the International Criminal Court investigations and prosecutions in the prevention of further crimes.  In the context of Darfur, particular attention would be given to investigating crimes currently affecting the lives and safety of the 2 million displaced civilians in the region, in an effort to improve conditions for humanitarian assistance and to protect victims from further attack.  The Office needed to gather sufficient information on those crimes to meet the evidential standards in the Rome Statute.

He said his Office was collecting all available information from outside Darfur and it had managed to make progress in its work, despite serious obstacles.  He emphasized, however, that the effort was now entering a new phase, where unconditional cooperation would be essential to complete the investigation and identify those most responsible for crimes committed in Darfur in an expeditious manner.  The speed would depend on the cooperation received.  The full cooperation of the Government of the Sudan and other parties to the conflict was vital.  Furthermore, the cooperation of those organizations with significant presence on the ground, such as the African Union and the United Nations, was, and would continue to be, essential.

His previous reports to the Council had highlighted the slow progress of cooperation between the African Union Mission in the Sudan and his Office, he recalled.  Since December 2005, he had engaged on a number of occasions with the African Union and its Mission, in an effort to expedite cooperation.  He had also offered to brief the Union’s Peace and Security Council on his activities and the importance of reinforcing mutual efforts to ensure justice and accountability.  Representatives of his Office had also met with the Mission in Khartoum and had delivered a detailed request for information relevant to the investigation.  He welcomed the recent statement of support from the Peace and Security Council, and he had also received confirmation in writing, from both Alpha Omar Konare, Chair of the African Union Commission, and Baba Gana Kingibe, head of the Union’s Mission in the Sudan, of the Union’s commitment to fully cooperate with the Court and its determination to assist in the fight against impunity.  In addition, he had been invited to brief the Union’s Peace and Security Council in the near future.  Those were signals that cooperation would now be forthcoming.  It was important to reiterate that the African Union’s assistance remained a fundamental component to progress in key aspects of the investigation.

He said that a delegation from his Office had visited the Sudan this past February for an extensive round of meetings with judges, prosecutors, representatives of the police force and other Government departments.  The Sudanese Government had cooperated with the Office and had allowed access to the requested officials during meetings that were simultaneously videotaped.  The Government had also facilitated meetings with the Governor of South Darfur and with representatives of the commission demarcating nomadic routes, who had provided further information on the situation in Darfur.

During that mission, and throughout the reporting period, his Office had gathered significant amounts of information to determine whether the Sudanese Government had dealt with, or was dealing with, the cases he was likely to select for prosecution.  The Government had also provided significant amounts of information relating to the conduct of traditional tribal-reconciliation mechanisms in Darfur.  Those were not criminal proceedings, as such for the purposes of assessing the admissibility of cases before the International Criminal Court, but they were an important part of the fabric of reconciliation in Darfur.

He went on to stress that the admissibility assessment was a case-specific one, and not a judgement of the Sudanese justice system as a whole.  Once his Office identified cases for prosecution, he would then examine whether or not the national authorities were, or had been, genuinely conducting national proceedings in relation to those cases.  It was clear that those authorities faced significant challenges to the conduct of effective criminal proceedings in Darfur, particularly since the conflict had destroyed or dislocated the normal criminal justice infrastructure.

Indeed, the special courts remained relatively inaccessible, with judges performing other duties in Khartoum, awaiting the start of trials in Darfur.  Limited resources and specialized expertise, and the need to rely on existing infrastructure for investigations, was also hampering progress.  The Sudanese Government had also made some efforts to rectify those deficiencies, but those efforts had been hampered because of lack of security on the ground.

He said that many investigation mechanisms were reactive to complaints, but there was a “reluctance or inability” on the part of witnesses and victims to come forward with complaints, and in some cases there had been allegations of intimidation and harassment of complainants.  That was particularly true regarding rape allegations.  The lack of any sort of witness protection system presented a serious obstacle to the conduct of any effective national criminal proceedings.  Based upon the current assessment, he said it did appear that the national authorities had not investigated or prosecuted any cases that were now or would be the focus of his Offices’ attention as regarding admissibility to the International Criminal Court, nor were any such investigations or prosecutions currently under way.

Reinforcing a point made in previous reports, he said that this assessment was ongoing and a final determination would be made when specific cases were selected for prosecution.  “This will require the continued cooperation of the Government of Sudan in providing access to proceedings, to officials and institutions, including in Darfur,” he said.

On the request to conduct other interviews related to activities undertaken in Darfur, he said that the requested interviews had not yet taken place, but that Khartoum had recently agreed that they could commence in August 2006.  Those interviews were extremely important, in order to establish a comprehensive account of the events in that region since July 2002.  Under the Rome Statute, his Office was obliged to investigate not only incriminating, but also exonerating circumstances.  “Particularly because my Office is conducting its investigations from outside Sudan, access to all parties in the conflict will be extremely important to allow us to fully test and corroborate the numerous accounts and allegations of crimes,” he said.

In addition to a moral duty, he said his Office was under legal obligations to protect victims and witnesses.  The absence of a functioning and sustainable system for their protection continued to prohibit an effective investigation in Darfur.  The Office’s investigative activities had, therefore, continued in several countries outside the Sudan, including in Chad, until April, when its activities had been suspended due to clashes between Government and rebel forces.  Operations were expected to resume soon.

“The Office has already gathered significant amounts of information and evidence on crimes committed in Darfur,” he said, emphasizing the International Criminal Court’s jurisdiction over crimes against humanity, war crimes and genocide.  Various allegations had been made that some of the groups involved in the commission of crimes there had done so with specific genocidal intent.  “This issue remains the subject of investigation and I have not, and will not, draw any conclusions as to the character of the crimes, pending the completion of a full and impartial investigation,” he said.

Identifying those with greatest responsibility for the most serious crimes in Darfur was a key challenge for the investigation, he said.  The complexity of the Darfur conflict exacerbated that challenge, given that it involved multiple parties, varying over time throughout the different states and localities.  He reiterated that the list of 51 names provided by the International Commission of Inquiry on Darfur was, of course, not binding on his Office, and he would keep it confidential.  His Office had also noted the developments in the work of the United Nations sanctions committee and the listing of individuals that might be subjected to such measures.  That list was in no way connected to the process of identification of individuals for possible prosecution by the International Criminal Court.

Finally, he stressed that the International Criminal Court was a complimentary global mechanism for the delivery of justice for the most serious international crimes.  The Court’s concern was to see that effective justice was delivered to the victims of the crimes committed in Darfur.  That could be achieved either at the national level, where domestic authorities were genuinely willing and able to prosecute those most responsible, by the International Criminal Court itself, or by both.  “In the coming phase, the Office will seek to complete the investigation of the first case and will continue to assess, on an ongoing basis, the admissibility of selected cases,” he said.

He said he had stressed, throughout his report, the need for cooperation in order to ensure accountability not only for past crimes, but for present crimes within the Court’s jurisdiction that continued to affect the displaced populations in Darfur.  “Our justice efforts should contribute to their protection and to the prevention of further crimes.  We need information on groups that continue to attack them or to impede their access to humanitarian assistance,” he said, calling on the Council to help his Office with obtaining that and other types of information regarding the investigation of the situation in Darfur.

OMAR BASHIR MOHAMED MANIS ( Sudan) noted that the Security Council mission had just returned from an important and historic visit to his country.  That visit had permitted the members to understand the reality of the situation, both in Darfur and in the Sudan in general.  The mission now understood the root causes of the crisis and its internal and external aspects, and the difficult period in which the Darfur Peace Agreement had been signed on 5 May.

Today, he said, the International Criminal Court Prosecutor had reflected very important aspects of cooperation established with the Government of the Sudan.  Since the adoption of resolution 1593 (2005), the Sudanese Government had responded positively.  It had begun consultations with the Prosecutor and his assistants, including during their visit to the Sudan.  That communication and cooperation had led to several positive results.  Among them, the Prosecutor had “directly and immediately” understood the situation and had heard a briefing by members of the Sudanese judiciary about its independence and relationship with other judicial organs in the country.  The Prosecutor had also seen the “security vacuum”, which had led to the elimination of police stations.  That had been followed by confrontation among the tribes and interaction among the political factions, which had escalated the situation and led to the widespread violations.

He said that the Prosecutor had also learned that a lot of cases had been decided.  A special court had been established, and sentences had included execution and life in prison.  He had also had the opportunity to understand the tribal problems, and he had had the chance to question members of the armed forces directly.  Questions from the Prosecutor’s Office had been answered, and, in the last few days, someone from that Office had visited the Sudan in search of additional responses.  Also during the Prosecutor’s visit, there had been meetings with judicial teams and judges associated with the situation in Darfur and entrusted by the Government to follow-up related cases and events.  The Prosecutor had also learned of the measures taken by the Government to provide compensation to the victims, and he had listened to testimony by the national investigation commission and the recommendations that that body had reached.  He had also learned of the steps taken by the ministers of justice and the interior to prosecute those accused of violations in Darfur.

There was no dispute over the fact that a political settlement was the model solution and the key to stability, justice and peace in Darfur, he said.  After the signing of the Peace Agreement in Darfur -- sponsored by the African Union, in cooperation with the Security Council, the European Union and many other partners -- there was now a bridge on which to cross over to security and stability.  That Agreement, however, had many challenges to overcome, uppermost among them the fact that armed groups still remained outside of it.  In addition, there were doubts about the Agreement among some other people in Darfur.  Nevertheless, the Peace Agreement had addressed in detail all of the elements in question in Darfur, and the various signatories were trying to implement their commitments.  That effort would not succeed, unless it was accompanied by efforts at the grass-roots level, which, presently, was characterized by “extreme tribal intolerance”.

He said that success in Darfur could be achieved by activating the traditional mechanisms for the settlement of conflicts and disputes, and for reconciliation.  In fact, that process had been repeated many times in the history of Darfur, and was customary in Africa as a whole.  Repairing the tears in the social fabric was based on conciliation, amnesty and satisfying the different tribes; that was fundamental to establishing peace in Darfur.  He hoped that effort would enjoy the support and encouragement of the African Union and the international community, including the Security Council.  His Government, for its part, would continue its efforts to set up the rule of law and justice through the various courts and mechanisms in Darfur, to end impunity, and bring all the perpetrators to justice.

On the other hand, he said, there was a nascent Agreement, requiring wise sponsorship to ensure that peace became a reality among the tribes.  That required the adoption of a methodology that established the rule of law and peace, so that justice could interact with the elements of amnesty and forgiveness.  That way, peace would come easily to the tribes.  That would also take into account the social traditions, values and customs so important in the current phase, because peace and stability must be a result of the people’s will and not just a paper agreement.  The political security and social conditions in Darfur required the Security Council’s support, in order to spur internal dialogue in favour of peaceful coexistence.

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