Thirty-ninth report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to Resolution 1593 (2005) [EN/AR]

EXECUTIVE SUMMARY

This Report reflects the activities pursued by the Office of the Prosecutor (“OTP” or “Office”) in relation to the situation in Darfur from February to July 2024.

The ongoing situation in Darfur is a profound human tragedy. It represents an unprecedented humanitarian crisis marked by allegations of crimes falling under the jurisdiction of the International Criminal Court (“ICC” or “the Court”) committed on a massive scale. In this reporting period, the Office has increased its collection of information and evidence concerning inter alia, gender-based crimes, crimes against children, indiscriminate targeting of civilian populations, attacks against internally displaced persons camps, killing, pillaging and shelling of or targeting of civilian objects.

These ongoing allegations have been the subject of a focused and active investigation by the Office of the Prosecutor since the announcement made in July 2023 by Prosecutor Karim A.A.
Khan KC, following the outbreak of hostilities in Khartoum on 15 April 2023 between the Sudanese Armed Forces (“SAF”), and Rapid Support Forces (“RSF”) and affiliated armed groups.

With a primary focus on alleged crimes (including gender-based crimes and crimes against children) committed in Al Geneina and its surrounding areas in West Darfur, the Office’s investigation has been progressing rapidly over the last six months - complemented by more recent efforts by the Office to monitor and preserve evidence relating to crimes in El Fasher.

The Office’s investigation has benefited in particular from:

• Extensive deployments of investigators on the ground in Chad and other countries, supporting significant engagement with affected communities and the collection of testimonial and other forms of evidence. In refugee camps in Eastern Chad the Office has heard repeated and urgent calls for justice, with emphasis also placed on an acute need for more humanitarian assistance. The Office is grateful to Chadian authorities for the cooperation they have provided to the Office in support of these deployments;
• Deployment by the Office to Port Sudan to engage with relevant national authorities of Sudan, resulting in positive developments in cooperation;
  Productive engagement by the Office for the first time with the tribal leadership of Arab communities from Darfur, commencing an important dialogue that seeks to support the provision of information relevant to investigations;
• Ongoing receipt of responses to a public call for information and cooperation made by Prosecutor Khan in June in relation to allegations of international crimes in Darfur including in Al Geneina and El Fasher;
• Extensive engagement with civil society partners in Sudan and in third countries in order to deepen cooperation, support, mutual learning on approaches to documentation and increase information flow to the Office in support of investigations; and
• The ongoing collection and analysis of video, audio and other documentary evidence by the Office, including through advanced open-source investigation techniques, building on cooperation with an increasingly diverse range of external partners.

Together, these steps have supported significant progress in the collection and analysis of evidence, and legal characterisation of the facts in relation to ongoing allegations of international crimes in Darfur. In the coming reporting period, the Office will be taking targeted steps to fill remaining evidentiary gaps with a view to presenting, in due course, applications for warrants of arrest to the Pre-Trial Chamber of the International Criminal Court.

The progress made by the Office in this reporting period has been possible thanks to the cooperation of victims and survivors, as well as States and non-State actors, with new partnerships being developed by the Office to diversify relevant information in support of its inquiries. In this regard, the Office has placed particular emphasis on engagement with Civil Society Organisations (“CSOs”), including by contributing to strengthening their capacities in support of their documentation efforts for their potential subsequent use in accountability processes. The Office also continues to engage with a number of key States in order to encourage the provision of responses to requests for assistance within a timeframe that is supportive of the implementation of its mandate.

In addition to accelerating its investigation in West Darfur, and calling for additional evidence relating to the same, the Office has received information relevant to the deteriorating situation in North Darfur and its capital El Fasher, and has worked with cooperating partners to preserve relevant evidence.
Additional investigative activities have also been undertaken to further strengthen evidence in relation to individuals already subject to arrest warrants. This work has been supported through the development of new partnerships and cooperation avenues, as well as access to new witnesses with regards to the cases against Messrs Al Bashir, Hussein and Harun.

In parallel with progress in its investigations, the Office has continued its engagement in the ongoing trial of Mr Ali Muhammad Ali Abd-Al-Rahman (“Mr Abd-Al-Rahman”), representing the first trial undertaken at the Court in response to the referral made by the Security Council through resolution 1593 (2005). The Defence case is near completion with an additional witness scheduled to testify in September 2024, following which the parties and participants will submit their final briefs and closing remarks with an expectation that a judgment will be issued in the course of 2025.

In addition to advancing its own investigations and prosecutions, the Office has also provided significant, tangible assistance to domestic authorities investigating crimes committed in Darfur during the reporting period. In one case of assistance, the Office has been able to provide significant support to efforts by the national law enforcement authorities of a State party in relation to their investigation regarding an individual suspected of playing a significant role in ongoing crimes being committed in Darfur. In line with its new policy on Complementarity and Cooperation, launched in April this year, the Office is seeking to further expand avenues for potential provision of support to domestic proceedings, reflecting the two-way street of cooperation with national authorities it is establishing across all situations.

During this reporting period, the Office has also seen some positive steps taken by the Sudanese authorities through the execution of a number of outstanding requests for assistance and the provision of visas supporting the travel of OTP staff members to Sudan.

Although this progress must be consolidated in the next reporting period, the Office recognises the tangible steps forward that have been taken by Sudanese authorities in the last six months.
Against this backdrop, in the coming reporting period the Office will continue its work and efforts towards accountability for alleged crimes committed in the situation in Darfur pursuant to United Nations Security Council (“UNSC”) Resolution 1593(2005) with a focus on the following objectives:

Take the next required steps towards the completion of Abd-Al-Rahman trial: o Following the hearing of the last Defence witness in September 2024, the Office will submit its final brief and present its closing remarks according to the judicial calendar set by the Trial Chamber.

• Further advance collection of evidence regarding 2023 and ongoing crimes, delivering outputs from investigations: o Based on current momentum and anticipated collection of further additional relevant evidence, the Office will be in position to progress and finalise its work on the legal characterisation of facts and evidence in relation to its investigative priorities. This will form the basis for the onward drafting of applications of warrants of arrest in relation to key suspects to be presented in the appropriate time to the Pre-Trial Chamber. o The continued cooperation of victims, witnesses and all partners will be critical in the coming period to achieve further substantial progress in this investigation.
• Consolidate progress with respect to Al Bashir, Hussein and Harun cases: o The Office remains determined to work toward the adjudication of the outstanding cases against these three suspects who remain at large.
  Efforts to collect critical evidence from witnesses will continue to help further strengthen these cases. o In parallel, the Office will exert all necessary efforts and take any additional steps for the tracking of the suspects, including securing necessary State support and cooperation to this effect. To support this effort and other tracking initiatives across all situations before the ICC, the Office has established a specialised Tracking and Information Fusion Section.
• Continue to deepen engagement with States and other partners in support of all Darfur investigations: o Cooperation remains critical to making tangible progress in all lines of inquiry. In the coming reporting period, the Office will continue to intensify its efforts so as to secure its partners support and assistance in the areas of information and evidence sharing, facilitation of investigative missions, operational and logistical support and analytical support.
• Maintain and increase engagement with affected communities and grass root organisations in Chad, Darfur, and elsewhere: o The Office will intensify its engagement with CSOs and affected communities in the coming reporting period, building on past interactions, in support of its investigative efforts. o Further outreach missions will be carried out to refugee camps in the reporting period, with a view to deepening engagement with survivors of crimes committed in Darfur and continuing recent exchanges with leaders of the Arab communities from Darfur.
• Strengthen assistance with respect to complementarity initiatives by States investigating potential perpetrators: o As is the case for cooperation, complementarity remains important in the Office’s work to ensure accountability for Rome Statute crimes.

The Office will continue to positively respond to and assist States as well as organisations conducting investigations in relation to the Darfur situation, through the sharing of information, leads and other support within its means and mandate.

In pursuing these objectives, the Office will require the continued and deepened support of all of its partners including civil society organisations, international partners and national authorities. With States’ assistance and support including through the provision of resources and funding, the Office seeks to swiftly deliver on its mandate with tangible outputs that would support future prosecutions.
There is a human catastrophe taking place in Darfur, with deep suffering again being caused through attacks against civilians. Women and children are bearing the brunt of this.

It is essential that their pain is not exacerbated by global indifference. Our common focus, our collective commitment, must be to ensure that all individuals, including those in Darfur and Chad, feel that their lives are given the same value, the same sense of urgency, when they look to the law for protection.