Security Council

6336^th Meeting (PM)

Arrest of Indicted Prominent Sudanese Citizens Crucial for Peace in Darfur, Ending

Impunity, International Criminal Court Prosecutor Tells Security Council

 

The arrest of two prominent Sudanese citizens indicted by the International Criminal Court for war crimes and crimes against humanity was crucial for bringing peace to Darfur and ending impunity, Prosecutor Luis Moreno-Ocampo told the Security Council today.

“I would urge Council members to ensure that the arrest of Ahmad Harun and Ali Kushayb be at all times a consistent request of this Organization, through its representatives and envoys in the Sudan, as a critical condition for securing peace and stability in Darfur,” he said in a statement to the Council this afternoon.

Mr. Moreno-Ocampo addressed the Council following a decision by the Court’s Pre-Trial Chamber I to refer the matter to the 15-member body after it found that the Government of the Sudan had failed to comply with its obligations to enforce the arrest warrants in accordance with Council resolution 1593 (2005).  “UNSC resolution 1593, as well as all other UNSC resolutions, should be complied with,” he stressed.

The Prosecutor said his mandate was to end impunity for the most serious crimes as a contribution to the prevention of future crimes.  In the Darfur situation, the Office of the Prosecutor had conducted three investigations, he said, noting that in the first case, it had investigated a consistent pattern of attacks against the civilian population during the period 2003 to 2005.  Sudanese Armed Forces would bomb villages in Darfur and surround them.  Ground troops would then move in to kill and rape civilians and pillage their homes, in attacks that had forced the displacement of 4 million civilians to a hostile environment.

He said the evidence showed Ahmed Haroun, Minister of State for the Interior, as coordinator of the Sudanese Government forces, whose role included recruiting and financing the Popular Defence Forces known as the Janjaweed and their leader, Ali Kushayb.  On 27 April 2007, Pre-Trial Chamber I had issued arrest warrants against both individuals for crimes against humanity, he said, adding that it was in that case that the judges had made their decision about the lack of cooperation by the Sudan.

Turning to the second case, he said the Court had investigated the continuous involvement of the entire State apparatus in attacks on villages, and in a different pattern of crimes against displaced persons.  The attacks were calculated to drive entire groups into inhospitable areas, “where they would die immediately, or into camps where they would die slowly”.  On 4 March 2009, Pre-Trial Chamber I had issued an arrest warrant for President Omer al-Bashir of the Sudan for war crimes and crimes against humanity, including extermination and rape.  The judges had found that obstruction of humanitarian assistance in Darfur was more than a bureaucratic problem, the Prosecutor said, noting that it constituted the crime of extermination.

He continued:  “After forcing citizens from their homes, Sudanese forces would deny meaningful assistance to those who reached the camps, forcing the United Nations and others to set up the largest humanitarian operation in the world, and yet, obstructing their lifesaving efforts every step of the way.”  The crime of extermination did not require killing by bullets, but consisted of intentionally inflicting conditions of life calculated to bring about the destruction of part of a population, including the deprivation of access to food and medicine, among other things.

In its third case, the Court was investigating the three commanders of the September 2007 rebel attack in Haskanita, which had 12 African Union peacekeepers dead and thousands of people without protection, he said.  The judges had found that the attack constituted a crime under the Rome Statute, but had found insufficient evidence to establish the criminal responsibility of rebel commander Abu Garda.  The Prosecutor’s Office would, therefore, present additional evidence, and a new confirmation hearing would be held in the near future.  “These are the persons identified as most responsible for the most serious crimes committed in Darfur over the past six years.  There is no other case at this stage,” he said.

Turning to the main point of his briefing, the Prosecutor recalled that in the past the Government had recognized the Court’s role and had provided cooperation in other cases before it, including for the execution of arrest warrants.  Indeed, on 2 October 2005, the Government, without the Council’s involvement, had signed an agreement with the Prosecutor’s Office to implement the arrest warrants issued against Joseph Kony and four other leaders of the Lord’s Resistance Army (LRA).  That cooperation had been of critical importance to removing the LRA leaders from their safe haven in the Sudan.

In the Darfur case, cooperation had been forthcoming for two years, he said, adding that judicial records and other documents were shared under Article 53 of the Rome Statute.  Sudanese officials had been interviewed in Khartoum, including as suspects, and five missions had been undertaken to Khartoum, the last in January and February 2007.  In June 2007, the Government had accepted the notification of the arrest warrants against Mr. Harun and Mr. Kushayb, but since then, there had been a public and consistent refusal to cooperate with the Court and to comply with Council resolution 1593 (2010).

He said that last weekthe Pre-Trial Chamber had issued a decision informing the Security Council about the Sudan’s lack of cooperation, stressing that the Government’s obligation to cooperate with the Court stemmed directly from the United Nations Charter and Security Council resolution 1593 (2005).  The decision concluded that the Sudan was failing to comply with its cooperation obligations in relation to the enforcement of arrest warrants for Ahmad Haroun and Ali Kushayb.  “The Government of Sudan, as a sovereign territorial State, has the primary responsibility and is fully able to implement the warrants issued by the Court.  It has not done so.  And the judges have taken the step […] to notify the Council,” he said.

While cooperation from Sudan was lacking, it was noteworthy that cooperation was forthcoming from all other actors, he said.  Indeed, many States, including non-signatories to the Rome Statute, had taken steps to encourage cooperation by Sudan, and to isolate and ultimately facilitate the surrender of the individuals sought by the Court.  Those States maintained and expressed publicly their diplomatic support for the Court and had severed all non-essential contacts with those subjected to warrants issued by the Court.

Citing a few examples of that cooperation, he recalled that President Jacob Zuma of South Africa had emphasized just last week that his Government would arrest, under an International Criminal Court warrant, anyone who travelled to his country.  In addition, Kenya and Uganda had vowed to abide by their International Criminal Court obligations should President Bashir attempt to attend meetings in those countries.  United Nations Secretary-General Ban Ki-moon had also reiterated repeatedly the need to comply with Council resolution 1593 (2005).

Turning to crimes alleged to have been committed in Darfur over the past six months, he said he had wished to report that conditions had improved and that such crimes had ended.  Sadly, the truth was that attacks against civilians not participating in the conflict continued.  In February, immediately after the signing of a peace agreement amid public commitments to peace, the Sudanese Armed Forces had forcibly displaced 100,000 civilians in Jebel Marra, employing the same modus operandi as that used by Haroun in 2005 — air bombardments, then attacks by Sudanese Armed Forces integrated with the Janjaweed.

Equally sadly, the crime of extermination against millions of displaced persons in the camps also continued, he said.  John Holmes, Under-Secretary-General for Humanitarian Affairs, had reported to the Council last week about the difficulty of accessing many areas and the problem of finding interlocutors in Khartoum to address such issues.  “Those are not technical issues resulting from disorganization,” he said.  “The decision to expel humanitarian organizations and the accumulation of obstacles is a policy of identified Sudanese officials with the aim of committing the crime of extermination.”

Gender crimes continued unabated in Darfur, he said, citing the 19 May report of the Independent Expert on the situation, Justice Mohammed Chande Othman, which affirmed that perpetrators of rape and sexual violence were often dressed in military uniforms, and that victims were increasingly discouraged from reporting such crimes because they knew they would not benefit from remedial action, as confirmed by the African Union High-Level Panel and the Secretary-General’s April report.  In that context, he stressed the need for an updated comprehensive report on suffering in camps.

He said the facts unveiled by the prosecution shed light on the problems faced by the four different tracks of international endeavour in Darfur — humanitarian assistance, peacekeeping, political negotiations and justice.  The impunity enjoyed by Mr. Harun and Mr. Kushayb was a major problem for all those tracks, he stressed.  “It carries a price.”

As a tribal leader still exercising power in his own area of South Darfur, Mr. Kushayb provided a vivid example to other Janjaweed leaders that they could continue committing crimes, with impunity, the Prosecutor said.  Mr. Harun, after serving in positions where he could mobilize and use militias to attack civilians — and after being sent to manage the conflict in Abyei before it was subsequently burnt down — was now Governor of South Kordofan.  He should be arrested before he committed new crimes in his new position, Mr. Moreno-Ocampo urged.

Maintaining that the evidence presented by his Office should be discussed only in the courtroom at The Hague, he stressed that judges’ decisions would not be changed by political negotiations.  The Council had dealt previously with non-compliance by States with enforcement of arrest warrants, he said, expressing hope that the Security Council could acknowledge and follow up on the judges’ decision between now and the next report in December 2010.

The meeting began at 3:13 p.m. and ended at 3:45 p.m.

Background

Meeting this afternoon to consider matters concerning the Sudan and the International Criminal Court, the Security Council had before it a letter dated 28 May 2010 from the Secretary-General to the Council President (document S/2010/265).

The letter conveys a communication dated 27 May 2010, from the Registrar of the International Criminal Court, transmitting a decision issued by Pre-Trial Chamber I of the Court on 26 May 2010 to inform Council members about the Sudan’s lack of cooperation.  The Registrar concludes that “the Republic of Sudan is failing to comply with its cooperation obligations stemming from resolution 1593 (2005) in relation to the enforcement of the warrants of arrest issued by the Chamber against Ahmad Harun and Ali Kushayb”, noting that the warrants were issued in 2007 and the Government has since refused to accept any Court document on the matter.

Mr. Harun, a former Minister of State for the Interior, and Mr. Kushayb, an alleged leader of the Janjaweed militia, were indicted by the Court for the alleged murder of civilians, rape and outrages upon the personal dignity of women and girls, persecution, forcible transfers, imprisonment or severe deprivation of liberty, and attacks intentionally directed against civilians.  The Court later issued a warrant, in March 2009, for the arrest of President Omer Hassan al-Bashir for war crimes and crimes against humanity.

Those crimes were committed during clashes pitting Government forces and the Popular Defence Force, also known as the Janjaweed militia against such rebel groups as the Sudanese Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM), among others.  According to the Pre-Trial Chamber’s decision, while the Sudan is not a State party to the International Criminal Court’s founding Rome Statute, it is obliged to cooperate fully with and provide any necessary assistance to the Court and the Prosecutor, in accordance with Council resolution 1593 (2005).  The decision is without prejudice to other decisions or actions it may take in other cases arising from the situation in Darfur.

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For information media • not an official record