History at Risk of Repeating, International Criminal Court Prosecutor Tells Security Council, Urging Accountability for New Crimes in Darfur
Calling on the Security Council to deliver justice to the people of war-torn Sudan or risk irrelevance, the International Criminal Court’s top prosecutor today detailed plans to investigate alleged violations of international law emanating from Sudan’s latest conflict, as well as the serious crimes committed in Darfur two decades ago.
Karim Khan, Prosecutor of the International Criminal Court, told Council members that the disregard of promises made to the Sudanese people — along with the absence of any meaningful justice in Sudan for the serious crimes committed in Darfur 20 years ago — have helped create this latest cycle of violence and suffering. “We now are in peril of allowing history to repeat itself, yet again, before our eyes,” he observed, adding: “We are not on the precipice of a human rights catastrophe, we are in the midst of one.”
Working within the mandate given to the Prosecutor’s Office by resolution 1593 (2005), he said the Court is closely tracking reports of extrajudicial killings, the burning of homes and markets, and looting in West Darfur, as well as the killing and displacement of civilians in North Darfur. Further, the Office will soon deploy an investigative team to countries neighbouring Sudan to collect evidence from those who have fled the violence, and has launched a public campaign to solicit information about crimes allegedly committed in Darfur.
Stating that the present outcome has been staring at the international community and the people of Darfur for a long time, he said that, now, “the question is what are we going to do about it”. He pointed to the Court’s recent trial of Ali Abd-al-Rahman, senior Janjaweed leader, urging observers to hold onto hope that justice and accountability in Darfur is possible. He warned, however: “If we fail to deliver here, this calls into question the relevance of the Council.”
In the ensuing debate, many delegates voiced their dismay that the current conflict, which began in Khartoum on 15 April between the Rapid Support Forces and the Sudanese armed forces, has led to civilian casualties and criminal acts, displaced vast amounts of people and hampered the Prosecutor Office’s ability to investigate alleged crimes.
The representative of the United Arab Emirates underlined the need to continue ceasefire initiatives and redouble efforts towards an urgent political solution to end the crisis. She called on the parties to heed the voice of reason and stop the fighting immediately, also emphasizing that the principle of complementarity must guide the Court’s work. Albania’s delegate, for his part, said he was encouraged by the progress made in pursuing justice in Sudan — particularly the completion of the trial of Ali Abd-al-Rahman, one of the most efficient in the Court’s history.
However, the representative of the Russian Federation questioned how that trial can be considered effective when it was opened by the Court 17 years ago. She called the Court an obedient tool that follows the West’s directions as it examines the Sudan file. The Court, unable and not particularly willing to fulfil its mandate under resolution 1593 (2005), chooses to explain its ineffectiveness by blaming national authorities for its failures. “The main question to think about is who needs the ICC [International Criminal Court] and why,” she emphasized.
On that, the representative of Malta said that accountability is essential to ending the cycle of violence that has engulfed Sudan, observing that the outbreak of ethnic violence in Darfur bears a terrifying similarity to the suffering of civilians 20 years ago. Expressing support for the Prosecutor’s efforts — including investigations into incidents relating to current hostilities in Darfur — he commended States that have cooperated with the Court. It is regrettable, however, that Sudanese authorities have failed to abide by their obligations.
The representative of Mozambique, along those lines, stated that both the Juba Peace Agreement and the national plan to protect civilians in Darfur reaffirm the centrality of justice, accountability and protection of human rights in the peace process in Sudan. He therefore voiced support for the Court’s role in combating impunity, encouraging the Prosecutor’s Office to maintain constructive dialogue with the Sudanese authorities and other stakeholders — including the African Union.
The representative of Sudan, meanwhile, noted that the Juba Peace Agreement has not been implemented because funding pledges have not been honoured. While the Prosecutor points to Khartoum’s lack of cooperation, the Government constantly cooperated with the Court — although Sudan has yet to ratify the Rome Statute — before the recent clashes. Its legislative reform measures are based on that cooperation, and special tribunals were created to investigate crimes in Darfur. Regarding the Prosecutor’s requests, he stressed that there must be early notification and sufficient time allowed to implement them.
Mr. Khan, responding to comments, spotlighted the basic principle of international law that a national authority cannot claim a domestic impediment to fulfil an international law obligation. Resolution 1593 (2005) clearly states that the Government of Sudan and all parties shall cooperate fully with the Court. “Unfortunately, this international obligation has been much more honoured in the breach, rather than in the observance,” he said.
The meeting began at 3:03 p.m. and ended at 5:06 p.m.
Briefing
KARIM KHAN, Prosecutor of the International Criminal Court, said that the fighting that began on 15 April between the Rapid Support Forces and the Sudanese armed forces in Khartoum has quickly spread to Darfur. “We now are in peril of allowing history to repeat itself, yet again, before our eyes,” he observed, adding: “We are not on the precipice of a human rights catastrophe, we are in the midst of one.” Against that backdrop, he said that the mandate of the Prosecutor’s Office, pursuant to Council resolution 1593 (2005), is ongoing with respect to any alleged violations of international humanitarian law that fall within the Court’s jurisdiction. As part of its investigations, the Court is closely tracking reports of extrajudicial killings, the burning of homes and markets and looting in West Darfur, as well as the killing and displacement of civilians in North Darfur.
The Office will soon deploy an investigative team to countries neighbouring Sudan to collect testimonial and other forms of evidence from those who have fled the violence, he continued. It is also launching a public campaign to solicit information about crimes allegedly committed in Darfur from 2002 up to, and including, the current hostilities. The Office has established a new, secure portal to receive this information, which may be provided on an anonymous basis. Stating that the present outcome has been staring at the international community and the people of Darfur for a long time, he said that, now, “the question is what are we going to do about it”.
On that, he underscored that the disregard of promises made to the Sudanese people through the unfulfilled Juba Peace Agreement, the neglect of commitments made to the Court, the failure to meet international legal obligations and the absence of any meaningful justice in Sudan for the serious crimes committed in Darfur 20 years ago have sown the seeds for this latest cycle of violence and suffering. For its part, the Prosecutor’s Office remains open to engage with all actors and has reached out to leadership on all sides. In so doing, however, it maintains two key conditions for engagement: that those involved in hostilities recognize and uphold their obligations under international humanitarian law, and that they extend genuine communication and cooperation to the Office — both for current hostilities and for previous crimes committed in Darfur.
Urging observers to hold on to the hope that justice and accountability in Darfur is possible, he pointed to the Court’s recent trial of Ali Abd-al-Rahman, senior Janjaweed leader, with the prosecution closing its case after presenting the evidence of 81 witnesses. This first trial regarding the situation in Darfur is a key milestone. “This hope was also reflected in the voices of those who were able to provide testimony,” he said. The Prosecutor’s Office is committed to helping the Court ensure that this trial maintains momentum, reaches a just conclusion and lets people in Darfur see that justice can be delivered. Underlining the message he has given the Council since his first briefing on Darfur, he said that he did not want any investigation by the Prosecutor’s Office to be a never-ending story. “If we fail to deliver here, this calls into question the relevance of the Council,” he added.
Statements
SHINO MITSUKO (Japan), affirming support for the International Criminal Court, voiced concern over the continued hostilities that have impacted the ability of the Prosecutor’s Office to implement its mandate in Sudan. Widespread war crimes and crimes against humanity are reportedly happening again, and three major fugitives detained in Khartoum — who are subject to warrants issued by the Court — were released from prison after the outbreak of fighting. Japan urges all parties in Sudan to immediately cease fighting and to respect the process of justice and the rule of law in the political process. “As the Court emphasizes in its report, the impact of law must be felt in real time,” she stressed. Noting progress made by the Court in its investigations despite challenges, she spotlighted the trial of Ali Abd-al-Rahman — the first-ever case from a Security Council referral — which featured the participation of victims’ representatives.
RICCARDA CHRISTIANA CHANDA (Switzerland) expressed concern over the alleged sexual and gender-based crimes cited in the Prosecutor’s report, including those of mass rape and violence against children. His decision to investigate these incidents is an important contribution to the fight against impunity. Welcoming progress made by the Prosecutor, she noted developments in the trial of Ali Abd-al-Rahman. The speedy proceedings — as well as the central role given to victims and witnesses — are welcome. Stressing the importance of full cooperation with the Court, she called on the Sudanese authorities and all parties to the conflict to cooperate with the Court pursuant to resolution 1593 (2005) to ensure that victims in Darfur receive the justice they so long for. On that, she recalled the words of a Sudanese victim: “We have been waiting for a long time to see perpetrators stand in court.”
JEFFREY DELAURENTIS (United States) called on the leadership of both sides to immediately stop the violence, enable humanitarian aid, medical care and appropriate services to survivors, and submit to a genuine process of dispute-resolution. He welcomed the Prosecutor’s announcement that alleged war crimes and crimes against humanity committed in the current fighting may be subject to the Court’s investigation and prosecution. Naming four current suspects with outstanding warrants relating to the situation in Darfur, he underscored that the international community is unrelenting in its commitment to individual criminal accountability. He urged all States to cooperate with the Court in this regard to deliver the justice promised to the people of Darfur, and to join the United States in supporting efforts to hold accountable those responsible for atrocities in Darfur past and present.
SOLOMON KORBIEH (Ghana) observed that progress made in the trial of Ali Abd-al-Rahman, as set out in the report, would not have been possible without the courageous testimonies of witnesses. Turning to Darfur, he voiced support for the Prosecutor’s decision to initiate investigations into acts of alleged war crimes and crimes against humanity due to current hostilities. Voicing concern over the loss of lives and the displacement of thousands of people, he reiterated his call on the parties to respect their obligations under international humanitarian law. He also condemned the deliberate targeting of black Sudanese populations. The full cooperation of Sudanese authorities is necessary, he said — especially in connection with the case against Omar Hassan Ahmad al-Bashir, where documentary evidence is needed. He therefore called on all entities party to the Court to cooperate with the Prosecutor’s Office by timely responding to its requests.
MARIA ZABOLOTSKAYA (Russian Federation) said that the Court is an obedient tool, following the directions of the West as it examines the Sudan file. She questioned how the trial against Ali Abd-al-Rahman can be considered effective when it was opened by the Court 17 years ago. Meanwhile, the Court has not found anything reprehensible about the mass war crimes of North Atlantic Treaty Organization (NATO) members in Afghanistan, Iraq and Libya. The Court, unable and not particularly willing to fulfil its mandate under resolution 1593 (2005), chooses to explain its ineffectiveness by blaming national authorities for its failures. “The main question to think about is who needs the ICC [International Criminal Court] and why,” she emphasized, adding that this question applies not only to the Sudanese situation. The Court was conceived as an international body of justice, yet Western countries have used it as a tool to impose their notorious “rules-based world order”, she said.
DAI BING (China) voiced hope that the Court will continue to strictly comply with the principle of complementarity stipulated in the Rome Statute, fully respect the judicial sovereignty and legitimate opinions of countries concerned, and avoid politicization and double standards. Noting that armed conflict has persisted for three months, he voiced hope that all parties in Sudan will prioritize peace and people’s well-being, resolve differences through dialogue and negotiations and cease hostilities at an early date. He also encouraged regional organizations to strengthen coordination with all parties in Sudan to promote early de-escalation. The humanitarian situation in Darfur has recently deteriorated, he added, stressing that all parties must uphold and implement the Juba Peace Agreement and support the Sudanese authorities in their responsibility to protect civilians.
SÉRGIO FRANÇA DANESE (Brazil) observed that the report paints a “grimmer picture” of the prospects for investigating and prosecuting alleged crimes committed in Darfur. The conflict in Sudan has affected both the ability of the Prosecutor’s Office to conduct investigations in Darfur and Sudanese authorities’ capacity to comply with assistance requests, he noted, underlining the need for an immediate cessation of hostilities. Complementarity is a fundamental principle of the Rome Statute, and he emphasized that the primary responsibility to provide justice belongs to — and must remain with — States, without prejudice to the complementary role the Court must play when States are unable or unwilling to discharge that responsibility. Further, he reiterated that expenses incurred by the Court due to referrals from the Council must not be borne solely by States parties to the Rome Statute, but also by the United Nations.
DARREN CAMILLERI (Malta) said that accountability remains essential to ending the cycle of violence that has engulfed Sudan and left multiple lives destroyed and displaced. Expressing support for the Prosecutor’s efforts, including the commencement of investigations into incidents relating to current hostilities in Darfur, he commended States that have cooperated with the Court. However, it is regrettable that Sudanese authorities have failed to abide by their obligations under resolution 1593 (2005). The outbreak of ethnic violence in Darfur bears a terrifying similarity to the suffering of civilians 20 years ago. The situation in El Geneina is of utmost concern, he said, deploring the ethnically motivated killings, sexual violence, widespread burning of homes and mass displacement. He urged all parties to cease violations against civilians and comply with international humanitarian law.
ANNETTE ANDRÉE ONANGA (Gabon) said that hostilities in Sudan are causing vast displacement. Further, political and humanitarian crises have resulted in severe violations against people, including women and children, and have prevented representatives from the Prosecutor’s Office from visiting Sudan to observe the situation. When they are able, teams of investigators must be able to visit the country and establish the truth. She welcomed that the beginning of the first case regarding Darfur — that involving Ali Abd-al-Rahman — has come to an end, as this is an important step in the criminal justice system. All must be done to end the war in Sudan, she underscored, expressing hope for additional political efforts to restore peace. The political and security situations in Sudan must improve. Adding that a return to peace is an absolute necessity, she expressed full support for the Prosecutor’s Office.
GHASAQ YOUSIF ABDALLA SHAHEEN (United Arab Emirates), voicing concern over escalated fighting that has resulted in civilian casualties and other criminal acts, underlined the need to continue ceasefire initiatives and redouble efforts towards an urgent political solution to end the crisis. She called on the parties to heed the voice of reason, stop the fighting immediately and adhere to that agreed upon in Jeddah. She also noted that her Government has provided humanitarian and medical support to alleviate the humanitarian situation caused by the influx of Sudanese refugees into Chad due to the current situation. Diplomatic efforts remain essential, she added, stressing the importance of coordinating international and regional efforts to ensure their effectiveness. Further, she emphasized that the principle of complementarity must guide the work of the Court and its Prosecutor.
DIARRA DIME LABILLE (France) said that violence in Darfur is worrying due to its scope and community dimension, highlighting that the United Nations Integrated Transition Assistance Mission in the Sudan (UNITAMS) has stated that recent ethnic violence could constitute crimes against humanity. The discovery of mass graves, reported by the United Nations High Commissioner for Human Rights today, is “extremely worrying”, she said, noting the Prosecutor’s willingness to investigate the matter. Underscoring the need for justice, she called on Sudanese authorities to uphold their obligations and respond to the Court’s request to clarify the whereabouts of certain individuals, unknown since the outbreak of clashes in Khartoum. Further, she urged Abdallah Banda to surrender to the Court to stand trial, also underscoring the importance of ensuring that witnesses participating in the ongoing trial of Ali Abd-al-Rahman do not face reprisals.
HERNÁN PÉREZ LOOSE (Ecuador) said that the outbreak of hostilities in Sudan has displaced 2.8 million people and prevented the Prosecutor’s Office from providing the Council with a complete update on the situation. Further, reports of sexual and gender-based violence and attacks against children are concerning, and he welcomed the decision by the Prosecutor’s Office to launch an investigation into extrajudicial killings and other crimes. Authorities must comply with their international legal obligations and allow officials to travel within relevant territories and access witnesses. He also urged the Prosecutor’s Office to work with third parties and expressed hope the Court’s trial of Ali Abd-al-Rahman will not be affected by current hostilities. Calling on the Sudanese authorities to respond to requests for information, he stressed that violence in Sudan should remind the international community of the importance of breaking the cycle of impunity.
ANDRIS STASTOLI (Albania) said that his delegation was encouraged by the progress made in pursuing justice in Sudan — particularly the completion of the trial of Ali Abd-al-Rahman, which is a long-awaited step towards justice. It is one of the most efficient cases in the Court’s history, he said, welcoming the participation of victims in the proceedings. Applauding the Court’s decision to hear, in person, from women and girls who were subjugated to sexual violence in Darfur, he expressed full support for the Prosecutor’s decision to extend investigations into ongoing hostilities. His delegation is troubled by the release of Omar Hassan Ahmad al-Bashir, Abdel Raheem Muhammad Hussein and Ahmad Muhammad Harun, who were held in custody until the outbreak of fighting in Khartoum in April 2023. The Sudanese authorities must hand them over to the Court to face justice, he stressed.
PEDRO COMISSÁRIO AFONSO (Mozambique) noted that, despite efforts made by the Sudanese Government before hostilities began, recent reports indicate increased violence against the most vulnerable people. Both the Juba Peace Agreement and the national plan to protect civilians in Darfur reaffirm the centrality of justice, accountability and protection of human rights in the peace process in Sudan. He therefore voiced support for the Court’s role in combating impunity. Despite ceasefires, violence continues to spread and cause civilian casualties in Sudan, and he reiterated condemnation of attacks on civilians and private property, as well as of human-rights abuses — including sexual violence targeting girls and women. He went on to underline the role played by national and regional judicial institutions and reconciliation mechanisms, encouraging the Prosecutor’s Office to maintain a constructive dialogue with the Sudanese authorities and other stakeholders, including the African Union.
JAMES KARIUKI (United Kingdom), Council President for July, spoke in his national capacity to welcome the completion of the Court’s case in the trial of Ali Abd-Al-Rahman, noting that the victims’ statements are now under way. “This case is testament to the victims’ courage and patience to tell their stories after two decades,” he said, urging all parties to help maintain the trial’s momentum. He expressed regret, however, that there was an almost complete failure by the Sudanese authorities to cooperate with the Court, starting from the October 2021 military coup up until the outbreak of conflict in April 2023. The United Kingdom shares the Prosecutor’s concern over the current conflict’s impact on ongoing investigations, including the apparent release of certain Court suspects from custody. Further, he echoed the Prosecutor’s assessment that the current conflict stems partly from the failure of those who hold power in Sudan to ensure justice and accountability.
AL-HARITH IDRISS AL-HARITH MOHAMED (Sudan), noting that there is a legal basis for cooperation between his country and the Court — although Sudan has yet to ratify the Rome Statute — said the transition Government began such cooperation after the revolution and hosted a Court delegation in December 2021. The signed memorandum of understanding is the basis for the implementation mechanism between the parties, he said, adding that full cooperation requires that Sudan finalize ratification of the Rome Statute. He then detailed the process to that end. When it comes to implementing requests from the Prosecutor, there must be early notification and sufficient time allowed, he stressed, along with information about what kind of activities will be conducted in Sudan.
He went on to point out that the Juba Peace Agreement has not been implemented because donors have not fully funded it and pledges have not been honoured, spotlighting his country’s limited resources and financial difficulties. Further, Sudan has upheld all its commitments within the ceasefire under the aegis of the United States and Saudi Arabia. Noting that the report points to his country’s non-cooperation and deteriorating relationship with the Court, he stressed that the Government constantly cooperated with the Court and the Prosecutor’s Office before the recent clashes. Its legislative reform measures are based on that cooperation, and special tribunals were created to investigate crimes in Darfur. However, the report does not mention the Government’s efforts, including those to protect civilians by sending joint forces in implementation of the Juba Peace Agreement.
Mr. KHAN, taking the floor a second time, said that it is a basic principle of international law that a national authority cannot claim a domestic impediment to fulfil an international law obligation. Resolution 1593 (2005) clearly states that the Government of Sudan and all parties shall cooperate fully with the Court and the Prosecutor’s Office. “Unfortunately, this international obligation has been much more honoured in the breach, rather than in the observance,” he said. One such example is the 34 requests for assistance that remain outstanding. “This is not a case that the events of the last 90 days can gloss over or muddy the waters of non-cooperation,” he stressed. While noting that it pains him to acknowledge that — at this moment — Sudan is unwilling and unable to fulfil its obligations, he called on both parties in the conflict to cooperate in this eleventh hour.