Sudan Not Meeting Cooperation Requirements with International Criminal Court, Prosecutor Tells Security Council, Urging Khartoum to Act Now
While the International Criminal Court’s trial stemming from the Security Council’s first-ever referral of a situation has progressed swiftly with an intended close by February, Sudan has not met its commitments, the Court’s top prosecutor told the 15-member organ today, urging it to not allow those who wish to frustrate accountability to run down the clock.
Karim Khan, Prosecutor of the International Criminal Court, briefed the Council on the trial of Ali Muhammad Ali Abd-Al-Rahman, a senior leader of the Janjaweed militia in Darfur charged with 31 war crimes and crimes against humanity, which heard from more than 50 witnesses over the course of 78 sitting days. Their harrowing testimony — of profound suffering, loss, displacement and challenges — has brought life to what victims and survivors have endured for years in camps as internally displaced persons and in neighbouring countries as refugees. With courage and perseverance as the “triumph of hope”, they had the opportunity to not only confront the accused but also create a record to determine his responsibility for what occurred.
This exercise of humanity has seen the most efficient trial pace since the Court’s establishment due to the targeted presentation of evidence, agreements between the prosecution and defence, excellent trial management and the diligence of the Court’s Registry, he noted.
Despite this, the unfortunate truth is that the Government of Sudan is not meeting its cooperation requirements under Council resolution 1593 (2005), with Sudanese authorities restricting key access to documents and witnesses while ignoring requests for assistance and approval. “Something must be done” so that Sudan can seize this moment for its reputation, people and future, he said, stressing that “judges will judge what is presented in the courtroom but, of course, history judges us all.”
In the ensuing debate, many Council members lauded the trial’s progress and responded to the Prosecutor’s call by urging Sudanese authorities to cooperate, with some spotlighting the instrumental role of the Court.
Praising the trial’s progress as an important tangible step towards delivering justice, the representative of Albania stressed that the Court’s commitment to accountability is the only anchor of hope for survivors and victim’s families. It is a strong reminder that however long it may take, justice will be served as “impunity at the end will be only history”.
Her colleague from Japan emphasized that “we are finally witnessing justice become a reality for victims” after 18 years since the Council’s referral. He urged the Government of Sudan to comply with their obligations so that the international community can fulfil the long overdue and legitimate expectations of survivors.
Elaborating, Ghana’s delegate said the authorities must provide unimpeded access to documents and witnesses, support the establishment of a field presence in Khartoum, respond promptly to the outstanding requests for assistance and ensure full cooperation especially on the Omer al-Bashir case. For its part, the Office should increase its dialogue with African States as well as the African Union.
Stressing that his Government will continue along a path of cooperation, the representative of Sudan requested that his country’s current political landscape be taken into consideration. The exceptional transitional phase has resulted in challenges and caused delays, he pointed out, offering the failure to transfer authority between two ministries as an example.
Ecuador’s representative noted that the constant changes in focal points within national institutions are another example of an obstacle to cooperation.
“Justice delayed is justice denied,” Brazil’s delegate insisted, underscoring the importance to support the Court’s efforts to fulfil its institutional roles and prevent it from becoming an instrument of political pressure on developing countries. Expenses incurred due to Council referrals must be borne not just by States parties to the Rome Statute but also by the United Nations, he reiterated.
Offering a dissenting perspective, the representative of the Russian Federation directed his fellow Council member to the Charter of the United Nations, which states that such costs shall not be borne by the Organization. Perhaps Sudan’s cooling of relations with the Court is the result of that body’s seriously undermined credibility and its jurisdictional overreach, he suggested. Its operations in holding perpetrators accountable, after all, are part of larger efforts to reinforce the peace process and the Sudanese are able to bring justice on their own, he emphasized.
Also speaking today were the representatives of Switzerland, United Kingdom, United States, Mozambique, China, Malta, Gabon, France and the United Arab Emirates.
The meeting began at 3:02 p.m. and ended at 4:54 p.m.
KARIM KHAN, Prosecutor of the International Criminal Court, briefed the Security Council that the trial of Ali Muhammad Ali Abd-Al-Rahman has made swift progress, as the Court has heard from more than 50 witnesses — and been presented with much documentary evidence — over 78 sitting days. Witness testimony has brought to life the harrowing accounts endured by victims and survivors that compelled the Council to refer the matter to the Court almost 20 years ago, and these individuals had the opportunity to confront the accused and create a record that will allow a determination to be made as to the accused’s responsibility for what occurred. Underlining the courage and perseverance of the witnesses, he observed that these traits are seen in victims in so many parts of the world — that, despite what they endured, they represent the best of us, the “triumph of hope in the face of wretched experiences”. Their accounts reflected profound suffering, the loss of family members and friends, displacement and the challenging years — not months — they endured either in their own land in camps for those internally displaced or in neighbouring countries as refugees.
He recounted the testimony of one witness, speaking to the Court about members of their own community: “We need to know their stories. We need to know what they say about who killed their family members, who displaced them, who took away their belongings, who seized their cattle. Not a single person — not even a hundred people — can describe it enough. We have to show the victims that there is justice in this world.”
Stating that it is this prayer, this hope, this imperative that compelled the Council to refer this matter to the Court, he underscored that this is not an exercise of politics — it is one of humanity. He went on to note that the trial is making swift progress, and that the prosecution intends to close its case by the end of February. This makes the trial’s pace the most efficient since the Court’s establishment, and this has been achieved by the targeted presentation of evidence, agreements between the prosecution and defence wherever possible, excellent trial management by the Court’s judges and the diligent work of the men and women of the Court’s Registry. Against that backdrop — and stressing that the Prosecutor’s Office has made sincere efforts to keep promises made to communities in Darfur — he said that the “unfortunate truth”, however, is that the Government of Sudan is not meeting the requirements for cooperation set out in resolution 1593 (2005).
Detailing, for example, issues with entry visas, he also pointed out that, as internationals sit in hotels in Khartoum waiting to get travel permits, people sitting in refugee camps wait for justice. “Their patience — not mine — is what I am quite focused on,” he stressed. Further, access to documentation and witnesses remains restricted, challenges to accessing public information persist, requests for Government assistance remain outstanding and formal approval to establish an office in Khartoum has yet to be given. Underscoring that his Office remains open to engagement and building partnerships, he stressed, however, that “something must be done” because partnerships require two entities to be engaged. Those who wish to frustrate accountability must not be allowed to run down the clock, and he expressed hope that Sudan will seize this moment for its reputation, people and future. Adding that “these situations cannot be never-ending stories”, he said that “judges will judge what is presented in the courtroom but, of course, history judges us all”.
PASCALE CHRISTINE BAERISWYL (Switzerland), commending the significant progress made in the trial of Mr. Abd-Al-Rahman, stressed that these proceedings are essential for the victims and the affected communities who have been waiting for over 17 years for justice to be served. It is notably historic as the first trial stemming from a Council referral, she underscored. She welcomed the Prosecutor’s victim-centred approach, thanked the many witnesses who testified before the Court for their courage and determination and commended civil society for its tireless efforts to support the trial’s proceedings. Welcoming also the assistance of various third States and international institutions which played a key role through their cooperation, she said the trial gives a voice to victims and survivors by underlining once again the preventive and reconciliatory role of the Court as a vehicle for peace and security. Since the Court depends on the assistance of all to carry out its mandate effectively, independently and impartially, she urged all Member States to comply with their obligations to cooperate. For their part, the Sudanese authorities should support the Court’s effort through concrete steps. Providing justice is not only a duty in terms of accountability but also an imperative for the future of Sudan, she emphasized.
CHANAKA LIAM WICKREMASINGHE (United Kingdom) pointed out that the trial has enabled victims and witnesses to courageously tell their stories and has demonstrated that justice can be delivered. Such progress is an example of how strong cooperation with the Court can translate into meaningful action. However, the insufficient cooperation from the Sudanese authorities is disappointing, despite their reassurances. Stronger engagement would demonstrate that they are serious about delivering on their commitments to transitional justice, as outlined in the 2020 Jube Peace Agreement and the initial framework agreement signed on 5 December 2022. As such, he called on the Sudanese authorities to provide prompt access to relevant documentary archives and witnesses. They should also help facilitate the establishment of a field office in Khartoum and remove the unnecessary bureaucratic impediments preventing Court staff from being granted multiple-entry visas to Sudan and accessing Darfur. They must respond swiftly to the Court’s outstanding requests for assistance, he added, noting that 34 requests currently remain outstanding with no responses having been received. In encouraging continued cooperation between the Court and third States, he called for action on the four outstanding warrants and the surrender of Abdallah Banda, who remains a fugitive.
MARK A. SIMONOFF (United States), describing the case against Ali Abd-Al-Rahman, also known as Ali Kushayb, as a landmark case, noted that it is the first trial against any senior leader for atrocities committed by the Omer al-Bashir regime and the first real opportunity for justice for victims. Recalling the recent signing of a framework political agreement for the restoration of Sudan’s democratic transition, he added that this, along with the recent launch of phase two dialogues, are promising steps. The framework political agreement also reflects the values of the 2019 revolution and the diversity of the Sudanese people, he said. “The fact that these negotiations have happened at all is a testament to the Sudanese women, men and youth,” he said, lauding their persistence and courage in taking to the streets to demand their rights. Noting that some of the hardest challenges lie ahead, he pointed to the need for transitional justice and security sector reform. Calling on all stakeholders to cooperate with the Court, he noted its three outstanding warrants. Sudanese authorities must permit the Court’s teams to travel freely within that country and must respond to the Prosecutor’s requests for access to evidence and key witnesses, he stressed.
GENNADY V. KUZMIN (Russian Federation) pointed out that the trial is for some reason being portrayed as a historic milestone reflecting the individual merits of the Court while setbacks and failures — the lack of adequate State cooperation, unfulfilled promises and dashed expectations, to name a few — are being blamed on third parties. This is characteristic not only of the Court but also the International Residual Mechanism for Criminal Tribunals which has inherited the worst practices of its predecessor, he contended. In noting that Sudan is now being reproached for its cooling of relations with the Prosecutor’s Office, he questioned if this was the result of the Court’s credibility as an objective, apolitical body being seriously undermined. He voiced his concern over that institution’s persistent attempts to singlehandedly rewrite existing international law norms, notably through its 6 May 2019 decision on Jordan’s appeal. The Court’s decisions starkly demonstrate how far it is from a sober assessment of its jurisdiction, he said, spotlighting the fact that not one country implemented the unlawful arrest warrant on former Sudan President Omer al-Bashir. He advised the Council to proactively monitor the Court’s work but cautioned that exotic measures — such as sanctions against Court officials as the United States has done — are not yet necessary. On funding for the Court, he directed members to Chapter VII of the Charter of the United Nations, which states that no costs incurred in connection with a referral shall be borne by the Organization. The Court’s operations in holding perpetrators accountable are not an end to itself but rather part of larger efforts to reinforce the peace process, he emphasized, stressing that the Sudanese are able to bring justice on their own.
DOMINGOS ESTÊVÃO FERNANDES (Mozambique), recognizing the role of the International Criminal Court in combating impunity in cases of systematic violations of human rights, expressed support for the Juba Peace Agreement and the national plan for the protection of civilians in Darfur. Addressing injustice is crucial in paving the way towards accountability, reconciliation and durable peace and security in Sudan, he underscored. In this regard, the Court’s mandate should be a supplementary instrument to the peace process in Sudan through collaboration with all relevant national stakeholders. The Council referred the situation in Darfur to the Court almost 18 years ago, he recalled. Voicing support for the peace process in Sudan, he welcomed the launch of the final phase of the political process facilitated by the tripartite mechanism. Welcoming the commitment by the Sudanese authorities in view of straightening cooperation with the Office of the Prosecutor, he stressed the importance of promoting an environment of healing and reconciliation in restoring long-lasting peace in Sudan.
HERNÁN PÉREZ LOOSE (Ecuador) encouraged the Prosecutor to focus his efforts on concluding the trial as this would send a message of hope to victims that perpetrators of heinous crimes will pay. For its part, Sudan’s Government must enforce the arrest warrants against four defendants, three of whom are currently in its custody, and work with the Court on bringing them to justice. He expressed his concerned over the Government’s inadequate cooperation and spotlighted the remaining obstacles, which include the lack of access to documentation and files, absence of an interdepartmental committee to expedite the execution of requests for assistance, visa issuance restrictions and constant changes in the appointment of focal points within Sudan’s national institutions. The Government must fulfil its commitments to cooperate with the Court as this is essential to prevent impunity for the events in Darfur from being perpetuated, he underscored. In acknowledging the cooperation of third States and international institutions with the Prosecutor’s Office, he called for strengthened Council cooperation and coordination with the Court as well as the provision of necessary resources for its functioning. As a founding member of the Court, Ecuador supports the actions of the Prosecutor’s office, which will contribute to achieving national reconciliation and lasting peace in Sudan, he said.
LIU YANG (China), welcoming the improving political situation in Sudan, expressed hope that all parties will put the interests of the country and its people first and soon put the political transition “back on the right track”. Rebuilding the rule of law and achieving justice in Darfur is a common goal for the international community, and China welcomes that the Sudanese Government is using justice and accountability to achieve lasting peace. However, as it is “obvious” that implementing the Juba Peace Agreement and building the Sudanese Government’s judicial capacity requires financial support, he called on the international community to eliminate political interference, provide tangible assistance to Sudan and respond positively to the lifting of Council sanctions. He added that China’s position regarding the International Criminal Court’s involvement in the Sudanese issue remains unchanged, expressing hope that the Court will: strictly adhere to the principle of complementary jurisdiction; respect Sudan’s judicial sovereignty; heed the relevant opinions of the Sudanese Government; maintain its independence, impartiality and objectivity; and ensure that its work is conducive to promoting justice and achieving lasting peace in the country.
JOÃO GENÉSIO DE ALMEIDA FILHO (Brazil), reaffirming his country’s unwavering support to the Court, stressed that there is no sustainable peace without justice. Expenses incurred due to Council referrals must be borne not solely by States parties to the Rome Statute but also by the United Nations, he reiterated. Commending the landmark trial’s progress, he stressed that the Court should not be an instrument of political pressure on developing countries but rather a means to realize justice in the benefit of victims who have a right to reparation. “Justice delayed is justice denied”, he said, recognizing the primary role of the Sudanese authorities to effectively investigate committed crimes and bring the perpetrators to justice. Against the absence of such proceedings, it is even more important to support the Court’s efforts to fulfil its institutional roles, he underscored. In this regard, he commended the efforts to establish a field office in Khartoum and urged the Sudanese authorities to cooperate fully, provide unimpeded access to relevant documentation and enhance the field presence of the Prosecutor’s Office. He then reiterated his support for the 5 December 2022 Sudan Political Framework Agreement and said he trusts that the signatories will agree on achievable, realistic and inclusive road maps sooner rather than later.
FRANCESCA MARIA GATT (Malta), in noting that impunity sows the seeds of further violence, stressed the necessity of ensuring accountability for the people of Darfur to stop the cycle of violence. There is room for a deeper and improved relationship between the Council and the Court, in particular through referrals to ensure accountability for atrocity crimes committed in all regions, she underlined, commending the referral of the situation in Darfur for demonstrating the real progress that is possible when its members act together. She welcomed the trial’s progress, commended the enhanced cooperation with third States and international institutions, applauded the profound courage and determination of witnesses and strongly encouraged improved engagement with civil society organizations and affected community representatives. She also expressed her regret over the lack of progress during the reporting period across the Prosecutor’s four priority areas, especially since the full cooperation of Sudanese authorities remains central for investigative work to deliver on the legitimate expectations of survivors. There must be unimpeded access to documentation and witnesses, support for the establishment of a field presence in Khartoum, issuances of visas and prompt responses to requests for assistance. “Our collective aim here is to ensure a durable and sustainable peace in the Sudan — that aim can only be achieved if there is justice for the victims and survivors of atrocity crimes,” she said.
MICHEL XAVIER BIANG (Gabon), noting the remarkable progress that has been achieved in the Ali Abd-Al-Rahman case, welcomed the Office of the Prosecutor’s renewed strategy of improved criminal cooperation and mutual legal assistance. Recalling the commitments made by the Sudanese authorities to fully cooperate with the Court without compromising their principal judicial competence and national sovereignty, he noted that on 12 August 2021, they consented to sign an agreement which established cooperation modalities between Sudan and the Office of the Prosecutor. This is an important step forward and needs to be implemented, he stressed, adding that it will enable the Court to continue its investigations within the anticipated timelines and in the spirit of mutual dialogue. Underscoring the importance of building upon that momentum, he said it is also essential to improve the political and security situation in Sudan. Welcoming international efforts, specifically the trilateral mechanism of the African Union, the United Nations and the Intergovernmental Authority on Development (IGAD), he said the Office must take into account the delicate political situation and context in Sudan. The international community must not lose sight of the fact that Sudan is at a pivotal point in its history, he said.
FELIX OSEI BOATENG (Ghana) applauded the efforts of the Prosecutor’s Office for increasing avenues through which it engages with witnesses and for launching a public appeal for information in relation to the situation in Darfur. The visit of the Prosecutor to Sudan in August 2022, in particular his visit to Darfur and camps for internally displaced persons, provided an important platform for strengthening collaboration with local communities. Regarding the cases of Wadi Salih and Mukjar who are charged with crimes within the localities of west Darfur — including acts of murder, rape, destruction of property, and pillaging — it is gratifying to note that the Office is working with the benchmark to conclude its case by February 2023, he said. He encouraged full cooperation between the competent Sudanese authorities and the Office, especially on the Omer al-Bashir case where documentary evidence is very much needed. This remains central to accelerating the investigative work of the Office and making sure the legitimate expectations of survivors are addressed. In this context, he called on the relevant Sudanese authorities to provide unimpeded access to documentation and witnesses in Sudan, support the establishment of a field presence in Sudan, and ensure prompt responses to requests for assistance submitted by the Office to the Sudanese authorities. Further, he urged the Office to increase dialogue with African States as well as the African Union.
DIARRA DIME LABILLE (France), stressing that lasting and inclusive peace will not be possible without justice, called on Sudanese authorities to cooperate fully with the Prosecutor’s Office and fulfil their obligations under resolution 1593 (2005), the Juba peace agreements and the memoranda it signed. They must provide all necessary assistance to investigators who must be granted safe access to Sudanese territory, crime scenes, archives, evidence and witnesses and establish a local office of the Court in Khartoum as soon as possible. Welcoming the progress in the case against Ali Abd-Al-Rahman, she commended the trial as a crucial moment for survivors and the families of victims. Stressing that witnesses must be able to be heard without fearing for their security, she applauded the increased cooperation of third States and international organizations. She called on Sudan to surrender Ahmed Harun and for Abdallah Banda to surrender immediately to the Court. Turning to her country’s engagement in Sudan, she spotlighted the political impasse which has jeopardized gains and resulted in an intensification of violence to reiterate her call for a joint protection force. The protection of civilians and safe, full and unhindered humanitarian access must remain priorities, she stressed, urging Sudanese parties to make progress on a civilian-led democratic transition.
ALBANA DAUTLLARI (Albania) said that the Court’s commitment to accountability is the only anchor of hope for survivors and victims’ families. She praised the trial’s progress as an important tangible step towards delivering justice to the people of Darfur and in serving as a strong reminder to all perpetrators of war crimes and crimes against humanity that, however long it may take, justice will be served and “impunity at the end will be only history”. Expressing regret over the unnecessary hurdles faced by the Office of the Prosecutor in accessing public archives and documentation as well as the pending nature of its 34 requests for assistance, she underscored that these actions are nothing other than a further attempt to delay justice. The Sudanese authorities must stick to their written commitments to cooperate; provide unimpeded, secure access to crimes scenes, relevant documentation, public archives, Government witnesses and support; and execute the Court’s arrest warrants for senior officials to face justice. Enhanced cooperation between the Prosecutor and the Government is a must for the Court to achieve its mission and requires honest, inclusive dialogue with political and civil society representatives, especially women and youth, she stressed, calling on the Council to keep its promise to accountability made through resolution 1593 (2005).
SUOOD RASHED ALI ALWALI ALMAZROUEI (United Arab Emirates) cited the signing of the Political Framework Agreement last month by a diverse range of Sudanese parties as a critical step towards realizing the aspirations of the Sudanese people. Sudan continued its engagement with the Office of the Prosecutor, which included facilitating the Prosecutor’s important visit to Sudan in August last year and meetings with Government officials as well as relevant individuals in Sudan, he said, calling for constructive dialogue between the International Criminal Court and Sudan. He also voiced support for Sudan's efforts to implement transitional justice mechanisms in accordance with the provisions of the Juba Peace Agreement to ensure justice for the victims in Darfur. Similarly, he expressed support for Sudan’s recent efforts to de-escalate tensions in Darfur through local reconciliation agreements, which contributed to its stability.
ISHIKANE KIMIHIRO (Japan), President of the Council for January, speaking in his national capacity, reaffirmed his country’s support for the fight against impunity. Underscoring the obligation of Sudan’s Government and all other parties to the conflict to cooperate fully with the Court and the Prosecutor, he welcomed the substantial progress in the trial of Mr. Abd-Al Rahman. Eighteen years since the Council’s referral, “we are finally witnessing justice becoming a reality for victims,” he said. The Sudanese authorities must fully comply with their obligations so that the international community can fulfil the long overdue and legitimate expectations of survivors. Noting the Prosecutor’s increased engagement with victims, witnesses and affected communities through his visit to Darfur and to the camps for internally displaced persons, he commended the Court’s renewed strategic approach.
AL-HARITH IDRISS AL-HARITH MOHAMED (Sudan), underscoring that Sudan will continue to seek justice in Darfur out of the conviction that peace and justice are inseparable, said that, in doing so, the authorities are adopting a comprehensive approach to improve the living conditions in that region in accordance with the Juba Peace Agreement. As achieving justice for crimes committed in Darfur is a priority for the transitional Government, it has opened the door for cooperation with the International Criminal Court in an unprecedented manner. The challenges mentioned by the Court’s Prosecutor relating to Sudan’s cooperation primarily result from the current circumstances in Sudan — namely, its exceptional transitional phase. On the Court’s requests for assistance, he said that relevant authority was not transferred from the Ministry of Justice to the Ministry of Foreign Affairs, which has prevented fulfilling such requests. However, the Government facilitated the Prosecutor’s visit to Darfur and Khartoum without restrictions, and the Prosecutor’s address to the Council from Khartoum in August 2022 is proof of the cooperation between Sudan and the Court.
Stressing that Sudan will continue along this path of cooperation, he nevertheless asked that his country’s current, exceptional political situation be taken into consideration. Sudan stands in solidarity with the victims of war crimes and crimes against humanity. Adding that “criminal justice based on the principle of an eye for an eye” alone does not provide reparations to victims, he also called for the adoption of restorative justice to fulfil the needs and rights of victims who crowd camps for refugees and internally displaced persons. Combating impunity is one of the purposes of justice, he stressed — “there is no dispute about that” — and doing so remains a priority for the transitional Government as it is one of the most-important components for achieving peace in Sudan. Urging the Council to understand Sudan’s complex situation and ongoing efforts to achieve peace and security, he called on the 15-nation organ to take into consideration the current political landscape in his country and expressed hope for a realistic timeline that focuses on the situation in Khartoum rather than international standards.