Briefing Security Council on Darfur, Prosecutor Urges Sudan Government Provide International Criminal Court Safe Access to Crime Scenes, Witnesses
While Sudan remains at a delicate stage of its political transition following its 2018 popular uprising and an October 2021 military coup, accelerated cooperation with the International Criminal Court is the only viable path to ensuring long-delayed justice for the survivors of crimes against humanity in Darfur, the body’s top prosecutor told the Security Council today.
Karim A.A. Khan, Prosecutor of the International Criminal Court, briefed the Council on developments related to the situation in Darfur and resolution 1593 (2005), the 15-member organ’s first-ever text referring a situation to the Court. While that landmark referral provided hope, he expressed his frustration that 17 years have now elapsed without any tangible accountability or justice for Darfur’s people. In particular, he recalled, the absence of cooperation on the part of Sudan under the leadership of former Sudan President Omar al-Bashir led the Court’s last Prosecutor, Fatou Bensouda, to hibernate the investigation.
However, he said, following the 2018 uprising that overthrew Mr. Al-Bashir and put Sudan on a path of political transition, the Court was able to visit the country for the first time in many years and new progress was registered. On 9 July 2021, his Office successfully secured confirmation of all 31 charges of war crimes and crimes against humanity against Ali Muhammad Ali Abd-Al-Rahman, a senior leader of the Janjaweed militia in Darfur, for crimes including murder, rape, torture and attacks on the civilian population. That trial will commence in April, marking the first-ever International Criminal Court trial stemming from a Security Council referral.
He went on to note that four other individuals related to the Darfur situation are currently subject to Court arrest warrants, including Mr. Al-Bashir; former Minister of Interior Abdel Raheem Muhammad Hussein; and former Governor of South Kordofan Ahmed Harun. The fourth individual, former Justice and Equality Movement commander Abdallah Banda, remains at large. Outlining his initial meetings with Sudan Prime Minister Abdalla Hamdok, members of the country’s Sovereignty Council and other officials there, he recalled that the Court signed a memorandum of understanding with the Government in which, for the first time, the latter agreed to facilitate a full-time Court presence on the ground in Sudan.
Voicing regret that the military takeover in Sudan on 25 October 2021 marked a major setback in the Court’s work, he nevertheless reported that his team was able to travel to Khartoum in December to obtain fresh assurances from the Government that their work can continue. He outlined his bolstered support to his Office’s Darfur team, including additional resources and the appointment of a pro bono Special Adviser devoted exclusively to the Darfur investigation. Pledging his commitment to press forward, he repeated his request to the Government that his Office be granted safe and secure access to documents, crime scenes and witnesses in the months ahead.
As Council members took the floor to share their views, several praised recent strides made by the Court and urged the Government of Sudan — despite the turmoil resulting from the October coup — to redouble its commitment to cooperating with the Prosecutor’s Office. However, several voiced concern about external actors exerting undue pressure or influence in Sudan, noting that transitional justice arrangements were clearly laid out in the 2020 Juba Peace Agreement and urging Sudan’s partners to give the country space to implement them. Other speakers raised long-standing concerns about the Court more broadly, underlining the critical importance of respecting Sudan’s judicial sovereignty.
The representative of Albania expressed support for the Court’s work and its role in bringing justice to the victims of the heinous crimes against humanity. “Without accountability, human rights will be denied, crimes will perpetuate and impunity for past conflict-related crimes will persist,” he said. Voicing concern about the precarious security situation in Sudan, as well as ongoing violations of human rights by the military authorities, he joined other speakers in welcoming progress in the Abd-Al-Rahman case and urging the Government of Sudan to continue to deepen its cooperation with the Court.
Ireland’s representative voiced concern that the 25 October military coup interrupted the significant progress made up to that point in the Prosecutor’s investigations. Citing recent reports of civilian deaths, the rape of women and girls, the forced displacement of thousands and the destruction of property — acts which may fall under the jurisdiction of the Court — he urged a return to the progress made prior to October, including the conclusion of a further memorandum of understanding and plans to deploy a full-time investigative team in Sudan.
Other speakers spotlighted progress made in Sudan and the need to give the country time and space to implement its own transitional justice arrangements. The representative of China, for one, said Darfur entered a new stage of peacebuilding with the signing of the Juba Peace Agreement. Urging the international community to support Sudan in shouldering the primary responsibility for ensuring its own peace and security, he said the country’s partners should remain adequately patient and the Court should strictly abide by the principle of complementarity, respecting Sudan’s judicial sovereignty.
Kenya’s delegate said the people of Sudan are having a promising, and at the same time volatile, national dialogue on the nature of government, democracy, justice and accountability. In its engagement with Sudan, the Court should embrace the aspirations of the Sudanese people as reflected in their established, and desired, justice and accountability processes. In addition, she noted that resolution 1593 (2005) invited the Court and the African Union to discuss practical arrangements to facilitate the Court’s work, including the possibility of conducting proceedings in the region.
The representative of the Russian Federation, meanwhile, expressed his country’s long-standing concerns over the Court’s work. Noting that the credibility of any legal body is based on its openness and transparency, he declared: “Unfortunately, the [Court] is still far from these standards.” Emphasizing that the Charter of the United Nations does not endow the Court with the right to interpret the will of the Council, he stresses that the main objective in Sudan should be to achieve national reconciliation. “The [Court] has done nothing to this end in the whole of the 15 years of its work on the situation in Sudan,” he stressed, adding that the country’s people can achieve justice on their own.
Sudan’s delegate said achieving justice in Darfur is a main pillar of the work of his country’s transitional authorities. “Sudan will remain committed to accountability,” he stressed, underlining the importance of truth, justice and healing the wounds of victims. Noting that the authorities are working to implement the Juba Peace Agreement and enact the transitional justice arrangements contained therein, he said the country has passed a Transitional Justice Act and developed a National Civilian Protection Plan. Sudan is cooperating closely with the Court as outlined in the 2021 memorandum of understanding and is operationalizing plans to improve security and justice in Darfur, he added.
Also speaking were the representatives of Mexico, Brazil, United Arab Emirates, United States, Ghana, United Kingdom, France, Gabon, India and Norway.
The meeting began at 10:03 a.m. and ended at 11:30 a.m.
KARIM A.A. KHAN, Prosecutor of the International Criminal Court, briefed the Council and presented his latest report submitted pursuant to resolution 1593 (2005) on the situation in Darfur. Recalling a meeting he convened in 2021 with members of Darfuri civil society, including victims and survivors, he stressed that they have been fighting for accountability for the crimes committed against them for nearly two decades. While resolution 1593 (2005) marked the first time the Council referred a situation to the International Criminal Court, bringing hope for justice, the lengthy process has been frustrating for many. Indeed, he said, 17 years without accountability is too long, and the referral cannot remain a never-ending story for the victims or for the Council.
Reiterating his commitment to work tirelessly in pursuit of a meaningful outcome, he outlined some recent, significant progress achieved by his Office. On 9 July 2021, it successfully secured confirmation of all 31 charges of war crimes and crimes against humanity against Ali Muhammad Ali Abd-Al-Rahman, also known as Ali Kushayb, a senior leader of the notorious Janjaweed militia in Darfur during 2003 and 2004. The crimes confirmed against him include murder, rape, torture, attacks on the civilian population, and other serious Rome Statute crimes. The trial of Mr. Abd-Al-Rahman will commence in April, representing the first-ever International Criminal Court trial stemming from a Security Council referral, and demonstrating the imperative of “staying the course” in the pursuit of accountability. He added that his Office is organizing outreach efforts to keep the Sudanese people abreast of those important developments.
While the Ali Kushayb case is significant, it is just but one case among several, he said. Four other individuals are currently subject to Court warrants of arrest. Three are currently in Sudanese custody, namely former Sudan President Omar al-Bashir; former Minister of Interior Abdel Raheem Muhammad Hussein; and former Governor of South Kordofan Ahmed Harun. The fourth individual, former Justice and Equality Movement commander Abdallah Banda, remains at large. In the case of the latter, he recalled his decision to voluntarily recuse himself pursuant to article 42 (6) of the Rome Statute. He also cited his decision, soon after taking up his position as Prosecutor in 2021, to initiate a comprehensive review of the Darfur situation, with a particular focus on assessing the strength of evidence in its cases.
He recalled that, due to a variety of factors including Mr. Al-Bashir’s hostility towards the Court, there was almost no cooperation between the Office of the Prosecutor and the Sudanese Government for 17 years, leading his predecessor, Fatou Bensouda, to hibernate the investigation. As a result, and as the review of the evidence in the Darfur situation made clear, the evidence in several of the Darfur cases must be strengthened in order to be built upon the strongest possible evidential foundations. His review prompted two immediate actions, namely to increase the resources of the Darfur team and to travel to Sudan to meet with the Government and other stakeholders. In addition, he appointed a pro bono Special Adviser, attorney Amal Clooney, whose portfolio is devoted solely to Darfur.
Outlining his initial meetings with Sudan Prime Minister Abdalla Hamdok, members of the country’s Sovereignty Council and other officials in Khartoum, he said he underlined a new approach. Among other things, he made clear that cooperation with the Government must improve and investigations must accelerate. He also stressed that it is not the location of a trial but the impartiality of the justice process that is crucial. A memorandum of understanding was signed which, for the first time, extended the Government of Sudan’s cooperation with his Office to include all four suspects against whom the Court has issued warrants of arrest. The Government further agreed to facilitate a full-time Court presence on the ground in Sudan.
Regrettably, he said, the military events witnessed on 25 October and the ensuing instability in Sudan marked a setback and pose additional challenges to the Court’s work. Many of its key interlocutors and focal points no longer hold their positions in the Government. While the Prosecutor’s Office was forced to pause its investigation, his team was able to travel to Khartoum in December to obtain fresh assurances from Government officials that their work can continue. “While Sudan remains in a delicate stage of transition, the only option to find a pathway to closure is acceleration,” he said, voicing his hope that he will be able to return there in the coming months. Reiterating that the cases before the Court are not against Sudan but against individuals, and that the Government remains a critical partner, he repeated his request that his Office be granted safe and secure access to documents, crime scenes and witnesses in the months ahead.
JUAN RAMÓN DE LA FUENTE RAMIREZ (Mexico) welcomed the confirmation of charges in the Kushayb case. This is clear progress by the International Criminal Court regarding the situation in Sudan. Applauding the Prosecutor’s visit to Sudan in 2021, including the signing of a memorandum of understanding, he expressed concern about the impact of the coup on accountability. It is essential that the Prosecutor’s Office team have focal points in the Government and have access to evidence and witnesses. It is worthwhile to stress that witnesses should not be subjected to reprisals. Rejecting any tendency to reduce cooperation, he said such an act is an affront to the victims. He then called on Sudan to comply with the Court’s arrest warrants. The Council should facilitate support for the expenses incurred by the Court as result of its referrals.
RONALDO COSTA FILHO (Brazil) said resolutions referring situations to the Court must strengthen the integrity of the Rome Statute and promote international criminal justice in a non-selective manner. Complementarity is one of the cornerstones of the Rome Statute system. Brazil welcomes attempts to bring procedures not only closer to the victims, but also where the evidence is located, he said, encouraging Sudan to ratify the Rome Statute. Cooperation is among the main tools to ensure successful outcomes by the Court, he said, describing the signing of a memorandum of understanding in August 2021 as an important step to strengthening cooperation. Another positive initiative is the proposal to deploy an investigation team to be based full-time in Sudan. A field presence can facilitate investigations and develop a fruitful relationship with the host State. Completion strategies should be an integral part of the Rome Statute system, he stated, welcoming the Prosecutor’s intention to provide a road map for completion of Security Council referrals. International criminal justice is a temporary solution. In the long run, it is imperative to build a culture of accountability at the national level, he emphasized.
AMEIRAH OBAID MOHAMED OBAID ALHEFEITI (United Arab Emirates), noting that the important gains made by Sudan in the last two years must be preserved and built upon, underscored the importance of the Council’s role in encouraging the Sudanese parties to continue engaging in dialogue to reach a consensus on a pathway to advance the transitional process in line with the Constitutional Declaration and the Juba Peace Agreement. Welcoming the launch of the United Nations-facilitated Sudanese-led dialogue initiative aimed at supporting national stakeholders to overcome the current situation, she said her country firmly supports a Sudanese-led and Sudanese-owned transition process that lays the groundwork for a lasting and inclusive peace in the country. Recognizing Sudan’s cooperation with the International Criminal Court to further accountability, she took note of a memorandum of understanding formalizing the channels of cooperation between Khartoum and the Court in August 2021, as well as subsequent visits hosted by Sudan for a team from the Office of the Prosecutor including in December 2021.
GENNADY V. KUZMIN (Russian Federation) said his country’s long-standing position on the International Criminal Court remains unchanged. Noting that the credibility of any legal body is based on its openness and transparency, he declared: “Unfortunately, the [Court] is still far from these standards.” Indeed, it continues to wilfully interpret the provisions of Security Council resolutions and other legal documents. Stressing that the Court is a body based on a treaty between itself and a limited number of States, he said the Charter of the United Nations does not endow the Court with the right to interpret the will of the Council, consequences of which are far-reaching. Moreover, he said, resolution 1593 (2005) indicates that States that are not parties to the Rome Statute do not bear any responsibility under that treaty. Against the backdrop of political instability in Sudan, the main objective should be to achieve national reconciliation. “The [Court] has done nothing to this end in the whole of the 15 years of its work on the situation in Sudan,” he stressed, adding that Sudanese people can achieve justice on their own.
BRIAN PATRICK FLYNN (Ireland) expressed regret that the 25 October military coup had interrupted the significant progress made up to that point in the Prosecutor’s investigations. Recent reports of civilian deaths, the rape of women and girls, forced displacement of thousands and the destruction of property include acts which may come within the jurisdiction of the Court, he said. Urging a return to the progress made prior to October, including the conclusion of a further memorandum of understanding and plans to deploy a full-time investigative team in Sudan, he welcomed the confirmation of charges against Ali Muhammad Ali Abd-Al-Rahman, the first in a Security Council referral. His trial commences 17 years after the adoption of resolution 1593 (2005), demonstrating the importance of the Council and the Court’s continued focus on accountability. However, four arrest warrants remain outstanding, he said, urging Abdallah Banda to surrender to the Court and called on the Sudanese authorities to hand over the three additional fugitives in Sudanese custody to the Court. Sudan should nominate focal points to facilitate continued work with the Court and to ensure the safety of witnesses and their ability to testify.
RICHARD M. MILLS, JR., (United States) said his country has participated in assemblies of State Parties to the Rome Statute as an observer and stands ready to engage with the Court to bring accountability to the most serious crimes. His delegation welcomes the strengthening of the Office of Prosecutor and the Court and the Prosecutor’s position on prioritizing the Council’s referral of Sudan to the Court. He also welcomed the Prosecutor’s visit to Darfur in August and the appointment of a Special Adviser. Citing a coup in October, he urged Sudan to address the situation and expressed concern that armed militias continue their violence and killings with impunity. This cycle of attacks threatens social cohesion and the sustainability of the peace process. Sudan must also address the security vacuum. Justice and accountability are part of the Juba Peace Agreement. The trial for Mr. Abd-Al-Rahman, scheduled to begin in April, 15 years after the arrest warrant was issued, is a testament to what can happen when demand for justice never falters.
FERIT HOXHA (Albania) said that, as a party to the Rome Statute, his country supports the work of the Court and its role in ending impunity and bringing justice to the victims of the heinous crimes against humanity. “Without accountability, human rights will be denied, crimes will perpetuate and impunity for past conflict-related crimes will persist, undermining legitimacy and prospects for peace and reconciliation,” he said. Voicing concern about the precarious security situation in Sudan, as well as ongoing violations of human rights by the military authorities, he said the security services, military and other armed groups must refrain from using further violence against peaceful protestors and civilians. Welcoming progress in the Court’s work in the Kushayb case, he called upon the Government to fully and meaningfully cooperate with the Prosecutor’s Office and to grant access to the country’s territory, archives, witnesses and crime scenes, in line with the memorandum of understanding signed in August 2021.
HAROLD ADLAI AGYEMAN (Ghana) welcomed the Prosecutor’s report, recalling his country’s commitment to the objectives of the Court and the development of a complementary international criminal justice system, as the sixth party to join the Rome Statute. He reiterated the conviction that impunity must not be allowed to stand, stating that the former President of Sudan, Omar al-Bashir, and other individuals facing arrest warrants from the Court must be made to face the course of justice and given an opportunity to account for their actions or inactions in relation to the serious crimes with which they have been charged. Recalling resolution 1593 (2005), he called on Khartoum to assist the Office of the Prosecutor with access to documents, archives and other evidence in Sudan; access to witnesses, including those in custody there; and full and safe access to the country, including to crime scenes in Darfur. Outstanding fugitives must be transferred to the Court without delay. Welcoming the confirmation of charges in the Kushayb case — the first confirmation of charges in a Council referral — he called for the implementation of the principle of complementarity, including through the Court’s working with national judicial systems that might require capacity-building. On witness protection, he pointed out that in some instances witnesses have been recanting, “which adversely impacts the case for the prosecution and invariably casts a slur on the Court”. Ghana, therefore, calls on the Court to do more to ensure witness protection is provided before, during and after the trial process, which will give victims the required confidence to testify during trials.
CHANAKA LIAM WICKREMASINGHE (United Kingdom), welcoming progress made in several of the Court’s cases relating to Darfur, also praised the signing of a memorandum of understanding between the international tribunal and Khartoum in August 2021 and the Government’s early indications of commitment to stronger cooperation with the Prosecutor’s Office. Expressing concern over the deteriorated situation in Sudan following the events of October 2021, he urged the country’s authorities to build on previous strides made alongside the Court and to continue to grant the Prosecutor’s Office access to Sudan’s territory, relevant documents and other evidence. The United Kingdom stands ready to help facilitate the four outstanding arrest warrants issued by the Court against four individuals related to crimes committed in Darfur, he said, calling in particular for the surrender of Mr. Banda, who remains a fugitive at large.
BRICE FODDA (France) said the mission entrusted by this Council to the Court is even more essential in this transition period in Sudan. Building a lasting, inclusive peace in the region will not be possible without justice. Noting that the recent events in Sudan have hindered the investigations under way, he urged the country’s authorities to honour their commitments under resolution 1593 (2005), the Juba peace accords and the memorandum of understanding with the Office of the Prosecutor. It is not only a question of immediately relaunching the channels of communication with the Court, but also to provide the necessary assistance to the investigators, who must have safe access to Sudan’s territory, in particular Darfur. France’s commitment to Sudan is intricately linked to the continuity of the democratic transition in that country, he said, expressing concern about a climate of repression and intimidation against demonstrators and the media by the authorities, including arrests, detentions, searches and recurring Internet shutdowns.
LILLY STELLA NGYEMA NDONG (Gabon) said the Court has a key role to play in ensuring the commitments made in the framework of strengthening international criminal justice do not remain empty promises. Her delegation welcomes the commitments made by the Sudanese authorities to cooperate fully with the Court, by authorizing the ongoing presence of the Office of the Prosecutor in Sudan. The effectiveness and performance of the Prosecutor’s work remains dependent on improving the political and security situation in Sudan. While noting that the Court strives to do justice to the victims of previous conflicts, she expressed regret that the continuation of tensions in Darfur generates new victims. She called on the Sudanese authorities to ensure an end to this climate of violence and rapidly return to constitutional order.
GENG SHUANG (China) said Darfur entered a new stage of peacebuilding with the signing of the Juba Peace Agreement. Calling on all parties to that accord to fully implement it, and on non-signatories to sign on to the agreement as soon as possible, he said the international community should meanwhile support Sudan in shouldering the primary responsibility for ensuring peace and security. However, he said, stability can only be achieved through reconciliation, provisions for which are clearly laid out in the Juba Peace Agreement. The global community should remain adequately patient while providing assistance to Sudan to implement the Peace Agreement, and the International Criminal Court should strictly abide by the principle of complementarity, respecting Sudan’s judicial sovereignty, he said.
PRATIK MATHUR (India), stating that his country is not a signatory to the Rome Statute and is not a member of the Court, said the resignation of Sudan Prime Minister Abdalla Hamdok reflects inherent challenges to the transition process. The United Nations-facilitated intra-Sudanese political process needs to be Sudanese-led and guided by a constructive approach. The Constitutional Declaration signed in August 2019 should drive this process, he said, underlining the need for the military and the civilian leadership to reach an amicable solution to take the transition process forward. Noting that the Transitional Government of Sudan showed readiness to address issues relating to transitional justice, including accountability for human rights violations, he called “a step in the right direction” the Special Court for Darfur Crimes, agreed by the parties to the Juba Peace Agreement, whose jurisdiction will include matters relating to genocide, crimes against humanity and war crimes since 2002. Expressing hope that the Prosecutor will be able to visit Darfur during his next visit to Sudan in the coming months, he went on to emphasize the need to assist the country with capacity-building to strengthen national judicial institutions to enable them to redress issues of the past, promote intercommunal harmony and protect the fundamental rights of all citizens.
CATHERINE NYABOKE NYAKOE (Kenya) said the people of Sudan are having a promising, and at the same time volatile, national dialogue on the nature of government, democracy, justice and accountability. In its engagement with Sudan, the Court should embrace the aspirations of the Sudanese people as reflected in their established, and desired, justice and accountability processes. “The Court can do more to support the principle of subsidiarity by investing in strengthening the national judicial and legal capacity of Sudan,” she said, adding that such support should be in line with the African Union’s call for its member States to share their lessons and best practices in transitional justice with Khartoum. Recalling that resolution 1593 (2005) invited the Court and the African Union to discuss practical arrangements to facilitate the Court’s work, including the possibility of conducting proceedings in the region, she asked Mr. Khan to describe the progress of such arrangements.
TRINE SKARBOEVIK HEIMERBACK (Norway), President of the Security Council, speaking in her national capacity, recalled that on 17 January, 76 years ago, the 15-member organ met for the first time at Church House in London. Its first President, Australia’s Ambassador Norman Makin, opened that meeting with the hope that “the Security Council will be a great power for good in the world”, and also reflected that it has the primary responsibility for the maintenance of international peace and security, conferred by fellow Members of the United Nations. “Let us keep these sentiments in mind as we continue our work; they are just as true today,” she said. There is a serious political crisis in Sudan, she stated, adding that the security forces’ continued use of lethal force against peaceful protestors is unacceptable. Strongly condemning all breaches of human rights, including sexual violence; attacks on media, ambulances and hospitals; and restricting access to medical services and free communication, she called for the violence to stop. The military leadership is primarily responsible for the current constitutional and political crisis and the fragile security, economic and humanitarian situation in the country. Turning to the work of the Court, she thanked the Prosecutor for his first report on the situation in Darfur and applauded his visit to Sudan before the coup. The Council must complement his commitment to prioritize situations referred to the Court with consistent follow-up and support. She called for the implementation of the memorandum of understanding referred to by the Prosecutor, and for pushing for progress in achieving justice for the victims of Darfur atrocities, adding that the upcoming trial against former militia leader Abd-Al-Rahman/Ali Kushayb, and promises made on the transfer to the Court of suspects detained in Sudan are milestones in this direction. Proper access to evidence remains crucial. She urged the military to abide by Sudan’s commitments to the Court and fully cooperate with it.
MOHAMED IBRAHIM MOHAMED ELBAHI (Sudan) said achieving justice in Darfur is a main pillar of the work of his country’s transitional authorities. “Sudan will remain committed to accountability,” he stressed, underlining the importance of truth, justice and healing the wounds of victims. Not only is ensuring accountability the country’s international obligation, but it is also the popular will of the people, he said, adding that the authorities are working with all stakeholders to implement the Juba Peace Agreement and enact the transitional justice arrangements contained therein. Among other things, the country has passed a Transitional Justice Act and developed a National Civilian Protection Plan. Noting that the Government is cooperating closely with the International Criminal Court as outlined in the memorandum of understanding signed in August 2021, he added that it is now operationalizing mechanisms to improve security and justice in Darfur in particular.
Mr. KHAN, taking the floor a second time for closing remarks and to respond to several questions raised, emphasized that the demand for justice “is not going away”. His Office will show the stamina and perseverance that the Darfuri people themselves have shown. Responding to the representative of Kenya’s question about the Court’s engagement with the African Union, he recalled that he met with the Chair of the bloc in 2021 and hopes to attend the African Union Heads of State Summit in February, in order to discuss deeper engagement between the Court and the bloc’s member States. With regard to the forum of adjudication for Sudan cases, he stressed that “there is no magic there” as far as a trial location is concerned. The main thing is to ensure justice for victims who have lost everything.
* The 8947th Meeting was closed.