International Criminal Court Prosecutor Presses for More Active Security Council Role in Supporting Arrest, Transfer of Indicted Fugitives
Exclusive Focus on Africa Shows Clear Bias, Says Sudan’s Representative, as Others Stress Immunity of Sitting Presidents
The Chief Prosecutor of the International Criminal Court pressed the Security Council today to play a more active role in supporting the arrest and transfer of those suspected of mass-atrocity crimes in Darfur, a situation it had referred to The Hague-based tribunal more than 13 years ago.
“How many more years and how many more reports will be required for this Council to be galvanized into taking tangible action?” asked Fatou Bensouda, emphasizing that the victims were owed accountability through the Court’s independent judicial process for the Rome Statute crimes committed in Darfur.
She said Government leaders Omer al-Bashir, Ahmad Harun and Abdel Hussein, as well as militia leader Ali Kushayb and rebel leader Abdallah Banda — who were all presently at large — stood accused of multiple crimes against humanity and war crimes. Stressing that the Office of the Prosecutor sought to advance its investigations, and the Court to arrest and surrender those suspects, she said “the support of the Council is critical to each if we are to move the Darfur situation forward”.
While more than 20 States parties had cooperated with the investigations, Sudan continued to refuse, she continued, and the Council must help to facilitate dialogue in that regard. It must also follow up on the Court’s notification of non‑compliance, particularly by Uganda and Chad, after their failure to arrest and surrender Mr. Al‑Bashir during official visits in 2017, she said, underlining that the status quo would not only erode public confidence in the cause of international criminal justice, but in the Council itself.
In the ensuing dialogue, some delegates pressed the Council to act resolutely to combat impunity, Côte d’Ivoire’s delegate encouraged Sudan to respond to the Court’s concerns, including by shedding light on allegations of human rights violations and bringing to justice those accused of committing crimes.
The representative of the United States, meanwhile, decried the prevalence of sexual violence by people wearing Rapid Support Forces uniforms, abuse that Sudan denied. The United States would use all tools available to persuade Sudan to improve its human rights practices and protect fundamental freedoms, he added.
Others, however, took a different view, with Ethiopia’s delegate stressing that his country had repeatedly called for the suspension of proceedings against Mr. Al‑Bashir and urging the Council to with draw its referral. “We still think that the case is so weak that its continuation makes no sense,” he said. Sudan had played a constructive role in fighting terrorism, human trafficking and illicit migration, having enhanced its multilateral engagement on all those issues.
The representative of Equatorial Guinea, likewise, said the Court lacked the jurisdiction to accuse a sitting President. Many States had not collaborated in the detention or arrest of the President of Sudan because they did not share the Court’s interpretation of the principle of immunity, he noted.
On that point, the representative of the Russian Federation said the referral of a situation to the Court did not automatically lead to an end of immunity for the officials of the State in question. Immunity to criminal jurisdiction was a key international legal norm and an element of stability in international relations. Personal immunity had no exceptions under customary law, he said. All other officials had functional immunity.
Sudan’s delegate said his Government was fully committed to upholding customary international law. Chief among those commitments was the fight against impunity. Calling attention to the Court’s almost exclusive focus on African States, he noted that attempts to arrest a Head of State had not been made in any other world region, which demonstrated a clear bias. Sudan had always sought to be “above board” regarding the need for a decisive ruling on the issue of immunity for Heads of State, and it was regrettable that the former and current Prosecutors had come up against difficulties due to their inability to define their own mission.
Also speaking today were representatives of the United Kingdom, France, Peru, China, Sweden, Bolivia, Kuwait, Kazakhstan, Poland and the Netherlands.
The meeting began at 10:06 a.m. and ended at 12:11 p.m.
FATOU BENSOUDA, Chief Prosecutor of the International Criminal Court, recalled that, after 13 years, the victims of grave crimes which prompted the Council to refer the Darfur situation to the world body had yet to see those alleged perpetrators face justice. “How many more reports will be required for this Council to be galvanized into taking tangible action?” she asked. Sudan had not only refused to cooperate, but had been emboldened to denounce the Court in the Council.
Evidence collected to date as part of the Darfur investigations, thanks to the assistance of victims and witnesses and often at great risk, had persuaded the judges to issue arrest warrants against five suspects, she continued. While considerable progress had been made, what was now required was for the Council to support the apprehension and transfer of suspects to the Court. She urged the Council to take action concerning States that the Court had referred to it following their failure to arrest and surrender the suspects on their territories.
She went on to note that Government leaders Omer al-Bashir, Ahmad Harun and Abdel Hussein, as well as militia leader Ali Kushayb and rebel leader Abdallah Banda — who were all presently at large — stood accused of multiple crimes against humanity and war crimes. She described two main areas of focus: efforts by the Office of the Prosecutor to advance its investigations, and the Court’s efforts to arrest and surrender those suspects. “The support of the Council is critical to each if we are to move the Darfur situation forward,” she emphasized.
Regarding the investigations, she said efforts by her team had led to important advances, but additional funding was required. Appealing to the Council to facilitate support, she said that, while the investigations had benefited from cooperation by more than 20 States parties, Sudan had refused, and the Council must help facilitate dialogue. Pre-Trial Chamber II had initiated proceedings in relation to the failures by Uganda and Chad to arrest and surrender Mr. Al‑Bashir during official visits on 14 November 2017 and 1-2 December 2017, and she pressed the Council to take action following the Court’s notification of non-compliant States.
Recalling that Jordan had appealed a decision by Pre-Trial Chamber II to find it in non-compliance with its obligation to arrest and surrender Mr. Al‑Bashir on 29 March 2017, she said that, in response to an invitation by the Appeals Chamber, the United Mexican States and 16 law professors had been granted permission to submit legal observations. The Chamber had also invited the United Nations, African Union, European Union, League of Arab States and the Organization of American States (OAS) to submit, by 16 July, observations on the legal issues in that appeal. She said she was encouraged that the African Union had signaled its acceptance of that invitation, noting that the Chamber had also invited Sudan and Mr. Al‑Bashir to file submissions by 16 July on the merits of the legal questions raised in Jordan’s appeal.
She went on to commend the efforts of all those involved in the Darfur peace process, while making clear that several clashes between the Government and rebel groups in Jebel Marra had nonetheless been reported. Peace and stability could only return to Darfur once the causes of conflict were addressed, including ending impunity for alleged crimes under the Rome Statute and ensuring accountability for the victims, she stressed. The Council must play a more active role, particularly in supporting the investigations by her Office by facilitating United Nations funding and working to ensure it obtained the cooperation it required, notably from Sudan, she reiterated. Its support in securing the arrest and surrender of the Darfur suspects was a prerequisite for justice for the thousands of victims. The status quo would not only erode public confidence in the cause of international criminal justice in Darfur, but also in the Council itself.
SUSAN JANE DICKSON (United Kingdom) welcomed the decline in the fighting in Darfur, but said her delegation remained concerned about ongoing clashes between armed militants and Government forces. It was unacceptable that the Government of Sudan had prevented the African Union-United Nations Hybrid Operation in Darfur (UNAMID) and other humanitarian actors from accessing areas of recent conflict, she emphasized. However, as the security situation showed some improvement, small numbers of internally displaced persons were returning to their places of origin, although many of those returns were short-lived due to instability and the lack of services. Noting that the situation was particularly perilous for female internally displaced persons, she said the lack of progress in the peace process was cause for significant frustration, and called upon the Government to fulfil its legal obligations to cooperate fully with the International Criminal Court.
ANNE GUEGUEN (France) emphasized that it was the responsibility of the Council to act resolutely to combat impunity in Sudan and put an end to crimes in Darfur. Justice was indispensable for long-term stability in that country, and France was concerned about the current intercommunal violence taking place and the fact that militants were still active. Noting that there were too many instances of sexual violence taking place in Darfur, she stressed the need to stop the fighting and violence against civilians, particularly in the Jebel Marra region. Addressing the underlying causes of the conflict, including issues of land and water rights, would be key. It was essential that UNAMID have access to the areas where conflict persisted, she said. And in order for those who were suffering to have a normal life, it was also essential that the perpetrators of crimes be identified and held accountable.
TEKEDA ALEMU (Ethiopia) said his country’s position was in line with that of the African Union, which had called repeatedly for the suspension of proceedings against Omer al-Bashir and urged the Council to withdraw its referral. “We still think that the case is so weak that its continuation makes no sense,” he said, adding that it would only damage the Council’s credibility for the lack of action on the matter. Sudan had played a constructive role in fighting terrorism, human trafficking and illicit migration, as well as having enhanced its multilateral engagement on all those issues, he noted. Describing the lifting of bilateral sanctions by the United States as a “major positive development” arising from Sudan’s improved international relations, he said the significant decrease in intercommunal violence in Darfur had been confirmed by the joint African Union‑United Nations strategic review, which was why a paradigm shift was needed in the approach to addressing the Darfur situation. He urged Sudan to redouble its efforts to implement all remaining tasks, and the Council to exert pressure on the armed movements to negotiate an end to the suffering.
GUSTAVO MEZA CUADRA (Peru) expressed support for the political process in Darfur, emphasizing the importance of actions to address the causes of conflict and to ensure the safe return of internally displaced persons. Reaffirming Peru’s support for the Prosecutor’s efforts, he said they would only succeed with cooperation by States, notably the State concerned. Stressing Sudan’s responsibility to enforce the Court’s arrest warrants, he voiced regret that some States had failed to arrest and transfer suspects to the Court and pressed them to abide by their responsibilities under resolution 1593 (2005). Peru, the focal point for Latin America and the Caribbean on the issue of non-compliance, welcomed New Zealand’s 2016 initiative to address that issue, he said, noting that the Court’s responsibility was complementary to the primary responsibility of States. He expressed support for UNAMID’s work and for the Doha Document for Peace in Darfur.
ZHANG DIANBIN (China) said the political and security situation in Darfur, and in Sudan more broadly, had improved thanks to cooperation between the African Union and the United Nations, and thanks to efforts by Sudan itself. The Government had worked for years to strengthen its capacity in security and governance, and to promote a political process of reconciliation, notably over the last year with its weapons collection campaign. Such progress demonstrated Sudan’s ability to assume its peace and security responsibilities in Darfur, he said, expressing hope that the international community would respect Sudan’s leadership, focus on building the Government’s security and governance capacity, and stand with it as it promoted reconstruction in Darfur. China’s position on Sudan and the Court was unchanged, he said, encouraging the Council and the Court to respect Sudan’s sovereignty, address its concerns and those of the African Union, and respect the opinions of both the African Union and the Arab League on that issue. Noting that a Head of State enjoyed privileges and immunities by virtue of his or her office under international law, he underlined that the Council’s referral of the Sudan situation to the Court in no way undermined that immunity.
IRINA SCHOULGIN NYONI (Sweden) said it was regrettable that once again, little had changed since the Prosecutor’s last briefing in December 2017. It was particularly frustrating that all arrest warrants remained outstanding and that suspects remained at large. The success of the referral of the Darfur situation to the Office of the Prosecutor continued to depend heavily upon the cooperation of States, and in that connection, it was deeply concerning that the President of Sudan continued to travel internationally, including to countries that were States parties to the Rome Statute, he said. Turning to the current situation in Darfur, she welcomed reports that, over the last six months, the level of violence against civilians and the number of internally displaced persons had both decreased. Nevertheless, despite the fact that the reported instances of rape remained relatively low during the reporting period, sexual and gender-related violence remained a serious problem, he emphasized.
SACHA SERGIO LLORENTTY SOLÍZ (Bolivia) said the Council could not ignore the fact that the investigation into the situation in Darfur had dragged on for more than a decade, making it all the more difficult to shed light on the crimes committed there and to ensure accountability. Bolivia encouraged the Office of the Prosecutor to include in its next report details of the Court’s activities to promote the strengthening of judicial organs in Sudan. There was a clear and undeniable improvement in the security situation in Darfur thanks to the joint efforts of the African Union, United Nations and the Government of Sudan, which must maintain a laser focus on sustainable peace in Darfur. Describing the International Criminal Court as a global undertaking of importance to all States, he stressed the importance of reflecting on its effectiveness and efficiency, particularly given the fact that the model was established some 20 years ago.
ANATOLIO NDONG MBA (Equatorial Guinea) said the International Criminal Court lacked the jurisdiction to accuse or charge a sitting President. It lacked credibility due to its failure to discharge its duties efficiently, honestly and transparently. Many States had not collaborated in the detention or arrest of the President of Sudan because they did not share the Court’s interpretation of the principle of immunity. Its lack of progress in the Darfur case indicated that the case lacked merit, he said, aligning himself with the African Union’s oft-repeated call for the suspension of actions targeting the President of Sudan and for the withdrawal of the Darfur case from the International Criminal Court.
BADER ABDULLAH N. M. ALMUNAYEKH (Kuwait), recalling the twenty-second Arab Summit in Sirte, where the League of Arab States had rejected the politicization of international justice reaffirmed the need to respect Sudan’s sovereignty and territorial integrity, which was being challenged by the Court’s warrant against its President. The Court’s actions had not gained the support of regional organizations to which Sudan belonged, including the League of Arab States and the Organization of Islamic Cooperation (OIC), he said. Noting that the Prosecutor’s report welcomed the stability in Darfur, he pressed the Council to address Darfur in a coherent manner that would assist Sudan in removing hurdles to peace. Kuwait hoped that the Court’s proceedings would not become such an obstacle, he said, underscoring the need to respect international law and the United Nations Charter.
MARK A. SIMONOFF (United States) said his country supported accountability for war crimes, crimes against humanity and genocide, stressing that victims in Darfur deserved justice. The 2 million displaced people there still could not safely return home, as the 21‑23 May attacks on their camps had demonstrated, he noted, voicing concern over renewed violence in Jebel Marra, intercommunal violence outside that area and the refusal to grant access to UNAMID. Citing reports of a potentially calamitous harvest failure in October due to possible economic and fuel crises, he said that risked a return to conflict as people grew desperate for resources. He called upon Sudan to allow UNAMID, the United Nations country team and humanitarian organizations unfettered access to areas where communities remained vulnerable to violence. Expressing concern over the prevalence of sexual violence by people in Rapid Support Forces uniforms in Darfur as Sudan denied that it was taking place, he underlined that the culture of impunity around such abuse must end. Those responsible for violations, including security forces using excessive force against civilians in Darfur, must be held accountable. He welcomed Sudan’s arrest of a former Janjaweed commander, yet voiced concern about the lack of transparency around his trial and the charges he faced, pressing authorities to investigate atrocities charges and to hold him accountable if he had perpetrated them. He expressed disappointment that Mr. Al‑Bashir continued to travel around the world and emphasized that the United States would use all tools available to persuade Sudan to improve its human rights practices and protect the fundamental freedoms of people in Darfur.
KANAT TUMYSH (Kazakhstan) welcomed Sudan’s commitment to stability in Darfur and its strengthened cooperation with the United Nations and the African Union, which had resulted in the continuing improvement in Darfur’s security and humanitarian situation. Respect for national ownership, and for Sudan’s sovereignty and independence was central to those positive results, and Kazakhstan was confident that constructive and inclusive dialogue, in line with the Doha Document for Peace in Darfur, was the only way to establish peace and stability in Darfur, he said, underscoring the critical role of the African Union in resolving the crisis in Darfur.
MARIUSZ LEWICKI (Poland) said the issue of internally displaced persons in Darfur required the Council’s close attention and an appropriate solution. Citing resolution 2363 (2017), which stated that returns must be safe, voluntary and in accordance with international law, he said any forced return should be prevented. The volatile human rights situation in Darfur was a great concern, he said, emphasizing that sexual and gender-based violence must be monitored and prevented, and vulnerable persons, especially women and girls, protected. Reported arbitrary arrests and detentions also required review. He said UNAMID’s withdrawal must be compensated with an increased presence of the United Nations country team and closer cooperation by relevant stakeholders. Greater efforts by Sudan to provide security, promote intercommunal reconciliation and address the causes of conflict were also crucial. Poland supported the Court efforts to ensure accountability, he said, pressing the Council to adopt a persuasive course of action against States referred to it by the Court for non-compliance.
ILAHIRI ALCIDE DJEDJE (Côte d’Ivoire) noted with satisfaction the relative peace and security in Darfur, and invited the international community to build on the progress already achieved. Fighting impunity was an important part of the national reconciliation process, which was conditional on holding accountable those that had committed crimes, he said, encouraging the Sudanese authorities to provide an adequate response to the concerns expressed by the Court, including by shedding light on allegations of human rights violations and those accused of committing crimes bringing to justice. Despite the efforts of the Government, the weakness of institutional capacities and the lack of funding were having a negative impact on the rule of law and security, he said, encouraging the international community to provide support for the establishment of strong institutions that could tackle Sudan’s rule-of-law needs. The lifting of sanctions and improvements in Sudan’s socioeconomic condition were positive developments and helped to amplify the current trend towards peace and development, he noted.
KAREL JAN GUSTAAF VAN OOSTEROM (Netherlands) expressed deep disappointment that some of the suspects, including the President, continued to travel unhindered, including to countries that were States parties to the Rome Statute without being arrested. There had been no accountability for victims of the crimes committed in Darfur, he said, emphasizing that sustainable peace would only be achieved by holding accountable those who had committed crimes, including gross violations of human rights. The Court required cooperation to function effectively, and in that connection, he added, urging all States to extend their full cooperation to it. It was unacceptable that the victims of international crimes in Darfur had been waiting more than 13 years for justice, calling upon the Security Council to ensure adequate follow-up on its own decisions.
GENNADY V. KUZMIN (Russian Federation), Council President for June, spoke in his capacity, noting that there had been zero developments in the Court’s investigations. The Prosecutor’s report should be about the Court’s activities, but it was largely a description of visits made by Sudan’s President, replete with quotes from the Secretary-General’s reports and verbatim records of the Security Council. On the Court’s appeal that States that were not parties to the Rome Statute arrest and bring to justice those figuring in its investigations, he referred to resolution 1593 (2005), saying it outlined that such States had no obligations under that instrument, and thus, need not comply with the Court’s requests. Furthermore, that particular provision had been included upon request by the United States, he added. That the Council referred a situation to the Court did not automatically lead to the end of immunity for the officials of the State in question, he emphasized, pointing out that immunity to criminal jurisdiction was a key norm of international law and an element of stability in international relations. Personal immunity had no exceptions under customary law, but all other officials had functional immunity. “States act in line with their own international legal obligations,” he said, adding that trust in the Court was declining as it could not carry out the tasks that the Council had entrusted it.
OMER DAHAB FADL MOHAMED (Sudan) said his country was an active member of the international community and was fully committed to upholding customary international law. Chief among those commitments was the fight against impunity, which was a priority issue for Sudan, particularly as it sought to bring peace and justice to Darfur. The African Union had always insisted on its commitment to tackling and ending impunity, he said, noting that the bloc and its member States had been objective, coherent and continuous in their criticism levelled of the International Criminal Court, including the practices and actions of the Office of the Prosecutor that failed to respect or comply with various texts and conventions of international law.
The principle of universality had always been subject to attempts at politicization, he continued, calling attention to the Court’s almost exclusive focus on African States. It had sought to arrest an African Head of State despite the fact that similar attempts had never been witnessed in any of the world’s other regions beyond Africa. There was a crystal-clear attempt at politicization and bias in the Court’s work, which had been rendered clear in various documents, including those released by WikiLeaks, he said, describing it as endangered, imperilled and “out of control”. That was why Sudan questioned its objectivity and impartiality.
Sudan had always sought to be above-board with regard to the need for a decisive ruling concerning the issue of immunity enjoyed by Heads of State, he said. It was regrettable that the former and current Prosecutors had come up against difficulties due to their inability to define their own mission. The Prosecutor had sought to conceal secret objectives and promulgated outright lies in her report, including those relating to allegations of aerial bombardments in the Jebel Marra region. It was no surprise that Sudan was firmly opposed to the actions of the International Criminal Court as they compromised the security situation in the country.
Mr. ALEMU (Ethiopia) took the floor a second time and stressed that there were many double standards when it came to international justice and the fight against impunity. The initial referral to the International Criminal Court had been wrong, although that position should be not misconstrued as support for impunity. The Council was refusing to rectify its original mistake, he said, adding: “The Council has no case here and Member States have to realize this.”
Ms. BENSOUDA, Chief Prosecutor, expressed regret over the hostile and disrespectful language directed towards her personally, as well as her Office and the Court at large by the representative of Sudan. She said it was ironic that, due to that country’s complete non-cooperation, it was only in the Security Council that any sort of “dialogue” could be undertaken between Sudan and herself. She also voiced regret over the continued, baseless allegations of conspiracy and improper motives whereas she was interested only in pursuing accountability in a fair and impartial manner, in accordance with the Rome Statute. The Government of Sudan had refused to surrender the suspects so that the truth could be determined in full transparency, she reiterated.