Statement of ICC Prosecutor, Fatou Bensouda, before the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005)
Thank you for the opportunity to present my Office’s Twenty-fourth report on the situation in Darfur, pursuant to UN Security Council Resolution 1593.
Six months have passed since my last report to this Council, and indeed, nearly a decade has passed since the first warrant of arrest was issued by the Court in the situation of Darfur. As I present this Twenty-fourth report before you today, it is with immense regret that I acknowledge once again that all five suspects against whom warrants of arrest have been issued by the International Criminal Court in this situation remain at large.
As the longing for justice of the victims of Rome Statute crimes in Darfur remains unfulfilled, the suspects, Messrs Omar Al Bashir, Abdel Hussein and Ahmad Harun continue to occupy high-ranking positions within the Government of Sudan without subjecting themselves to the scrutiny of the law so that their guilt or innocence can be established. What is more, Mr Ali Kushayb continues to be active in Government of Sudan’s-aligned militias operating in Darfur while another suspect, Mr Abdallah Banda also remains at large in Sudan.
Time may lapse, but time does not erase the fact that serious crimes have been committed in Darfur, resulting in the untold suffering of victims. And time will not change the fact that these five men stand accused of multiple crimes against humanity and war crimes, and additionally, in the case of Mr Al Bashir, genocide. These constitute the world’s most serious crimes. We must ensure, Mr President, Excellencies, that time also does not erode this fact in our memories, nor our obligations to hold those responsible for these egregious crimes accountable.
Let me recall by way of a few examples the gravity of these crimes. It is alleged that between August 2003 and March 2004 in the town of Mukjar, West Darfur, over seventy men were summarily executed after being detained and tortured by the Janjaweed and Sudanese Army. In that same period, women and girls were raped and sexually assaulted. Civilians were attacked, forcibly expelled from their homes, and herded into IDP camps.
In an attempt to stop the violence and restore peace, the African Union (“AU”) deployed a peace keeping operation in Darfur. Yet, despite their protected status, in September 2007, rebel forces under the command of Mr Banda are alleged to have attacked and murdered AU peacekeepers at their base in Haskanita, including one peacekeeper from a State which is currently a Member before this Council. The courageous women and men who risk their lives in international and regional efforts to maintain peace deserve not only our respect and admiration, but also the best protection we can afford them. That protection, surely includes holding those who target and attack peacekeepers accountable for such crimes.
These are a just a few illustrations of the many crimes I am trying to prosecute as a result of the referral from this Council; crimes which the Pre-trial Chambers of the International Criminal Court have determined there are grounds to believe were committed by the Darfur suspects.
Mr President, Your Excellencies,
I refer to these crimes because it is critical that we do not lose sight of the ultimate purpose of these half-yearly briefings. These briefings should be more than a simple routine in fulfilment of a prescribed timetable. They should be seen as an opportunity for dialogue and exchange of views between my Office and this Council on how best to achieve the objectives of Resolution 1593, so that independent and impartial justice can be delivered to the Darfur victims.
As my report makes clear, the Rome Statute system has two essential pillars: a judicial pillar provided by the International Criminal Court and an execution and enforcement pillar, provided by State Parties, and in the context of the Darfur situation this Council. The Office’s reports are intended not only to provide relevant updates, but also to galvanise and mobilise this Council to enforce the obligations created by Resolution 1593 and the Rome Statute legal framework.
Resolution 1593 was intended to enable my Office to establish the truth and deliver justice to the victims of Rome Statute crimes in Darfur. Instead, as time passes, ICC fugitives continue to travel across international borders unimpeded by the failure of Sudan, other States, including – I regret to say – some States Parties, to enforce the Court’s arrest warrants.
A further aggravating factor is this Council’s inaction. It is no surprise then that victims and witnesses of the Office are slowly but surely losing faith in the process of international criminal justice in Darfur. We must ask ourselves some tough but honest questions. What are we to say to victims that continue to suffer in Darfur, to the individuals who have uprooted their lives to be witnesses and had the courage to tell their story? How can we maintain their trust in the judicial process when they continue to observe Mr Al Bashir and other suspects traversing the globe with impunity? Victims, including some I have met with personally, are puzzled and dismayed by the Council’s lack of action.
Mr President, Your Excellencies,
It is almost eight years since the Pre-trial Chamber of the International Criminal Court issued the first warrant of arrest against Mr Al Bashir. Yet, during each reporting period, Mr Al Bashir travels to different States, attending events ranging from presidential inaugurations to international sporting events.
According to my Office’s information, Mr Al Bashir has crossed international borders on 131 occasions since March 2009, on 14 occasions to State Parties and on 117 occasions to non-State Parties. His movements are traceable. The world knows where he is, where he travels to – often in advance, from the media.
There is ample opportunity for Mr Al Bashir to be apprehended – if the political will exists amongst States, and indeed, this Council. As I stated to this Council in June, the lack of action by this body has emboldened States to continue to host Mr Al Bashir. It also emboldens the Darfur fugitives to travel as demonstrated by a recent visit by Mr Al Bashir together with Mr Hussein to a non-State Party. This open display of impunity undermines Resolution 1593 and the credibility of this Council.
The legal position regarding the obligation of States Parties to arrest and surrender Mr Al Bashir should he travel to their territory could not be clearer. As the Pre-Trial Chamber II stated in its non-compliance decision of 9 April 2014:
[N]owhere in any decision issued by the Court is there the slightest ambiguity about the Chambers’ legal position regarding Omar Al Bashir’s arrest and surrender to the Court, despite the arguments invoked relating to his immunity under international law.
As this Council will recall, South Africa failed to arrest Mr Al Bashir during his visit in June 2015. On 8 December 2016, the Chamber issued a decision to convene a public hearing, to be held on 7 April 2017, in relation to a possible finding of non-compliance for South Africa’s failure to arrest and surrender Mr Al Bashir to the Court.
The Chamber has not only invited South Africa and my Office to make written and oral submissions, but has also invited the United Nations to attend the hearing and be heard. This opportunity will allow the United Nations to set forth its position on non-compliance with UN Security Council referrals to the Court and the role to be played by the Security Council in non-compliance proceedings. The Chamber further invited all interested States Parties to provide any relevant submissions should they wish to do so.
Most recently, the Court found States Parties, Uganda and Djibouti, in non-compliance for failing to arrest Mr Al Bashir during visits to those countries in July of this year and referred the matter to this Council. In these decisions, the Court emphasised the critical role of this Council when non-compliance findings are referred to it. Specifically, it stated, and I quote:
In the absence of follow-up actions on the part of the Security Council, any referral to the Court under Chapter VII of the Charter of the United Nations would become futile and incapable of achieving its ultimate goal of putting an end to impunity.
I can only underscore the necessity of this Council taking swift and concrete action to ensure compliance with all arrest warrants against the fugitives in Darfur situation. This includes action against Sudan for its continued and open defiance of the Court’s orders and Resolution 1593.
The Pre-trial Chamber has now issued 13 decisions finding non-compliance and/or requesting for appropriate action to be taken against Sudan and States Parties for failing to arrest Mr Al Bashir and other fugitives.
At a minimum, this Council ought to consider referencing these decisions in a separate resolution as has been done in the Libya situation when this body issued Resolution 2213.
It is not enough for Council Members to continue calling for support for the Court. Such calls have to be matched by concrete action.
In this regard, serious consideration should be given to New Zealand’s recommendation on 9 June 2016. New Zealand stated that when a finding of non-compliance is received, the Council should consider using the tools at its disposal, such as a draft resolution or statement, letter, or a meeting with the country concerned.
And let us not forget that the failure to execute warrants of arrest is not limited to Mr Al Bashir; to date, the ICC arrest warrant against Messrs Harun and Kushayb remains outstanding for almost 10 years; against Mr Hussein for almost five years, and against Mr Banda for just over two years.
I benefit from this forum to call on all states to fully cooperate with the Court in the arrest and surrender of suspects against whom ICC arrest warrants have been issued. Allowing suspects to travel across international borders with impunity not only severely undermines the Council’s credibility and that of the Court, but equally erodes public confidence in our common responsibility to end impunity for the world’s most serious crimes as well as our ability to ensure victims attain the justice they so rightly deserve.
Mr President, Your Excellencies,
In the face of the failure to arrest the Darfur suspects, it is no surprise that allegations of the commission of new crimes under the Statute continue to be reported in Darfur.
According to the information, my Office has obtained, hundreds of civilians were reportedly killed since April 2016. The area of Jebel Marra continues to be an area of conflict and instability and this has a dire impact upon civilians. Since June of this year, there have been new clashes between the Government of Sudan and the Sudan Liberation Movement-Abdul Wahid in Jebel Marra, resulting in aerial bombardments by the Government.
Some 80 civilians were allegedly killed as a result of these bombardments, mainly in Jebel Marra.
Additionally, as the Council is aware, the African Union-United Nations Hybrid Operation in Darfur reported on 1 July 2016 that women and girls continue to suffer from sexual and gender-based violence, including conflict related violence.
Particularly worrying is the recent, as yet unconfirmed, allegation by Amnesty International that the Government of Sudan may have deployed chemical weapons on civilians during several attacks on Jebel Marra in Darfur throughout the course of 2016. It is alleged that 200 to 250 people, including many children, may have died from exposure to chemical weapons.
My Office is taking the steps it can to verify whether the allegations are true. I note that the Government of Sudan has denied the claims, and to date, both the Organisation for the Prohibition of Chemical Weapons and UNAMID have not come across evidence that supports the claims. However, it must also be noted that the Government of Sudan severely restricts access of UNAMID and other organisations to the Jebel Marra region.
Denying access to the United Nations, the AU and other international humanitarian actors prevents aid getting to the victims and internally displaced, and potentially enables the parties to the conflict to cover up crimes against civilians committed in the conflict zones. It is imperative for the Government of Sudan to facilitate access to the Jebel Marra.
Consistent with its policy of total non-cooperation with the Court, Sudan also denies access to my Office to prevent us from investigating alleged crimes.
Mr President, Your Excellencies,
I also feel compelled to stay a few words about resources. With the Office’s multiple situations and cases, it will be increasingly difficult for the Office to allocate needed resources to the Darfur investigation in the coming year given the recently approved 2017 budget of the Court.
Nevertheless, despite limited resources, the total lack of cooperation by Sudan, and the inability to investigate in Darfur, my Office continues to conduct inquiries and investigations.
The team assigned to the Darfur situation has interviewed more witnesses since my last report, and obtained further evidence regarding not only previous crimes, but also allegations of current crimes. Further efforts are being made to identify potential witnesses.
In sum, despite many challenges, my team continues to make progress. The support of this Council for additional funding from the UN General Assembly would significantly increase the investigation capacity of my team.
Mr President, Your Excellencies,
On every occasion that I report to you on the situation in Darfur, I am forced to voice my concerns on the very same challenges; the sum total of which amounts to justice still eluding the victims in Darfur. I wish I could be here today informing the Council, and the victims, that the judicial process has significantly advanced. But I cannot. As long as this Council does not take direct action to induce Sudan and other States to execute the arrest warrants, I will likely be here next June delivering the same message. This lack of progress must weigh heavily on our collective conscience and must not be allowed to continue.
I end on this point, and ask the honourable Members of this Council to consider it carefully: it was a watershed moment for international criminal justice when this Council voted in favour of referring the situation in Darfur to the International Criminal Court. The referral signalled to the world and to the victims this Council’s determination to fight against impunity and foster justice and accountability in Darfur. That determination must guide the Council today as it did then.
I ask this Council to give new life to your Resolution 1593 by giving my Office the support it needs in order to advance its investigations and prosecutions in the Darfur situation. For the sake of the victims in Darfur, you must break the current impasse.
Under the critical watch of history, we must not allow “Never Again” to ring hollow to taunt the memory of the victims in Darfur. To be sure, the world yearns to see this Council employ its authority with confidence and conviction in full support of international criminal justice.
Mr President, Your Excellencies,
This august body’s effective follow-through in the Darfur situation is the Litmus test of the Council’s ability to fulfil that promise.
I thank you for your attention.
