Violations of Rome Statute Likely to Continue as States Fail to Arrest Fugitives Indicted over Crimes in Darfur, Chief Prosecutor Warns Security Council

Report
from UN Security Council
Published on 14 Dec 2018 View Original

SC/13623

Security Council
8425th Meeting (PM)

Sudan’s Permanent Representative Accuses Court of Corruption, Saying Report Fails to Reflect Progress in Restoring Security

Violations of the International Criminal Court’s Rome Statute – including failure to arrest fugitives as they cross international borders - are unlikely to end if the Security Council remains unwilling to take action against such non-compliance, the Court’s Chief Prosecutor said today, as she briefed the 15-member organ on her investigation into alleged crimes in the western Darfur region of Sudan.

“Justice delayed is justice denied,” Chief Prosecutor Fatou Bensouda emphasized, outlining numerous instances of non-compliance by both the Government of Sudan and third-party States. Noting that five arrest warrants remain outstanding for current and former Sudanese officials ‑ including President Omer al-Bashir - she said they contain more than 60 counts of war crimes and 50 counts of crimes against humanity, such as extermination, murder, rape and torture. “The body of evidence is increasing, and my prosecution team continues to prepare in anticipation of the future arrest and surrender of any of the Darfur suspects,” she affirmed.

Noting that levels of violence in Darfur decreased over the reporting period, she said that impunity, as well as reports of serious crimes, regrettably persist. Meanwhile, Mr. Bashir and others accused of war crimes continue to travel internationally - including to States parties to the Rome Statute - with no response from the Council, she noted. In a related Arria-formula meeting in July, she recalled, several States voiced concern over such inaction and proposed concrete, workable measures to enhance cooperation between the Court and the Council. “I remain hopeful that the constructive dialogue and proposals at that meeting will provide further momentum,” she said, declaring: “The critical eyes of history are upon us.”

As Council Members took the floor, several speakers expressed support for the International Criminal Court’s investigation in Darfur – and elsewhere – despite growing criticism of its work. Some delegates called upon national authorities to apprehend individuals subject to the Court’s warrants when the opportunity arises, warning States parties to the Rome Statute, in particular, that any failure to do so risks undermining the Court’s credibility Court and denying justice to the victims of horrific crimes.

Sweden’s representative was among the speakers who voiced concern over the continuing failure of Member States to uphold their responsibilities under international law. He said that while the Court has rendered landmark verdicts on such issues as the recruitment or use of children in armed conflict, it is a matter of concern that pressure and hostile rhetoric against it continue to increase. The work of the Court and its tribunals has a real impact, he stressed, adding that “it is impartial and goes wherever justice is most in danger”.

France’s representative emphasized that it remains the Council’s responsibility to take determined action against impunity in Sudan and to end the crimes committed in Darfur. “The fight against impunity and respect for human rights are inseparable,” she said, stressing that the responsibility of States to cooperate with the International Criminal Court in conformity with Council resolutions extends to Sudan, which must execute arrest warrants for crimes committed on its territory. Rejecting efforts to trivialize the refusal of Member States to cooperate with the Court, she reiterated her delegation’s proposal to invite before the Council States that have not been able to cooperate with the Court.

Several speakers struck a different tone, rejecting the International Criminal Court’s legitimacy to investigate non-signatory States parties to the Rome Statute. Still others expressed the view that few, if any, changes have emerged in the Prosecutor’s latest report, which nevertheless trumpets “significant progress” without clarifying the nature of that progress.

In that vein, the Russian Federation’s delegate said that aside from such mysterious references to progress, the Court has in fact spent its time tracking Mr. Bashir’s international travel and demanding that States comply with its rules. Such actions are far less burdensome than interviewing victims, he said, underlining the fact that Mr. Bashir continues to enjoy immunity as a State official, even after being referred to the Court. The latter should focus on its priority functions, he stressed, urging it - “at long last” – to begin an objective, comprehensive investigation into the situation in Darfur.

Ethiopia’s representative said the application of warrants in the Sudan situation is not helpful to the situation there. In fact, the manner in which the Court has acted in Africa as a whole has left a bad impression, resulting in an examination by the African Union Commission, she added. While noting that many member States of the African Union were among the first to sign on to the Rome Statute, she emphasized that the search for justice must not be pursued at the expense of the search for peace. It is for that reason that Africa has requested that the Court withdraw the Council’s referral of the Darfur situation, she explained.

Sudan’s delegate, echoing those sentiments, emphasized the need to reconsider the Court’s role in Darfur, particularly after European investigations revealed corruption in its work. The Court is levying charges to please those financing it, he said, pointing out that while it consistently refuses to press charges against soldiers of powerful countries, it never fails to indict a sitting African Head of State. Underlining the principle of equality among States, he stressed that “the only obstacles to peace in Darfur now are the efforts of the Court”, which has been rendered “a tool of political bias”.

Also speaking were representatives of the United States, Bolivia, Poland, China, Netherlands, Kazakhstan, Equatorial Guinea, United Kingdom, Kuwait, Peru and Côte d’Ivoire.

The meeting began at 3:07 p.m. and ended at 4:47 p.m.

Briefing

FATOU BENSOUDA, Chief Prosecutor of the International Criminal Court, presented her latest report on the situation in Darfur, noting that the pre-trial chambers have issued multiple arrest warrants following their independent assessment of relevant evidence. Today, warrants remain outstanding for five people, all of whom occupied positions of responsibility as officials of the Government of Sudan at the time of their alleged crimes. Naming Omer al-Bashir, Ahmed Harun, Abdel Hussein, militia leader Ali Kusgayb and rebel leader Abdallah Banda, she pointed out that several of those individuals continue to hold senior positions within the Government. Their arrest warrants contain more than 60 counts of war crimes and 50 counts of crimes against humanity, including extermination, murder, rape, forcible transfer and torture, she said. She went on to outline the significant progress made by the Court during the reporting period, saying that its investigators remain dedicated to their mission despite facing many challenges. “The body of evidence is increasing and my prosecution team continued to prepare in anticipation of the future arrest and surrender of any of the Darfur suspects,” she affirmed.

Over the period under review, she continued, levels of violence against civilians in Darfur decreased, but impunity – as well as the commission of serious crimes - regrettably persists. She cited attacks against personnel of the African Union-United Nations Hybrid Operation in Darfur (UNAMID); the ongoing conflict in the Jebel Marra area between Government forces and the Sudan Liberation Army-Abdul Wahid; the destruction of villages; the killing, injury and displacement of civilians; and reports of sexual and gender-based violence against women and girls. Recalling the Council’s concern – expressed in resolution 2429 (2018) – that UNAMID is unable to access areas from which it has withdrawn, she called upon the Government to respond affirmatively to its request for the Operation’s unfettered access throughout Darfur. She pledged to continue to monitor the situation and collect evidence – including by making use of reports from reliable entities and sources operating in Darfur – while pointing out that the Government continues its policy of antagonism and non-cooperation with the Office of the Prosecutor, in contravention of resolution 1593 (2005) and effectively obstructing its ability to conduct on-the-ground investigations.

Describing multiple impediments, she recalled the failure by the Government of Jordan to arrest Mr. Bashir when he visited that country in March 2017. Pre-trial Chamber II found that Jordan failed to comply with its obligations under the Rome Statute and decided to refer the country to the Assembly of States Parties and the Security Council. Noting that Jordan decided to appeal that decision, she said that the Court’s Appeals Chamber heard a five-day hearing on the matter in September. Multiple legal submissions were made - including by Jordan, the African Union, the League of Arab States, professors of international law and the Office of the Prosecutor – and the parties are currently awaiting a final determination. However, Mr. Bashir continued to travel internationally, including to Djibouti and Uganda, she noted, recalling that both States were previously referred to the Assembly of States Parties and to the Council for their failure to arrest and surrender Mr. Bashir. The Council took no action in relation to those or any other referrals, she said.

“It is therefore not surprising that States parties to the Rome Statute […] continue to host [International Criminal Court] suspects on their territory, in blatant violation of Court findings,” she emphasized, citing the lack of any meaningful consequences for that inaction. Many Member States taking part in a related Arria-formula meeting in July also voiced concern over the Council’s failure to act, she continued. The session offered an opportunity for an exchange of views and several participants proposed concrete, workable measures to enhance cooperation between the Court and the Council. “I remain hopeful that the constructive dialogue and proposals at that meeting will provide further momentum, resulting in concrete action taken by the Council on this issue,” she said. Listing other instances of non-compliance by the Government of Sudan, she said that if the latter is in possession of evidence, it should come forward and share it with the Office of the Prosecutor. Pledging full respect for the due process rights of all suspects - including the right to a fair, independent and impartial trial – she reiterated her call for the Government to “open a new chapter of cooperation” with the Court and demonstrate its commitment to combating impunity. “Justice delayed is justice denied; the judgement of victims and the critical eyes of history are upon us,” she stressed.

Statements

JONATHAN R. COHEN (United States) emphasized that accountability is essential for the terrible crimes committed in Darfur. While the overall security situation has improved, civilians still face fighting, communal disputes and attacks on displaced persons. For that reason, UNAMID must have full access to vulnerable persons throughout the region, he stressed. For the sake of long-term peace, all parties in Darfur should engage in transparent dialogue towards implementing previous agreements, he said, calling upon those movements that have not signed on to them to do so. He encouraged the Government to ensure that victims of sexual and other violence have access to justice. Describing his country’s bilateral cooperation with Sudan – intended to build the country’s capacity to improve human rights conditions – he emphasized that human rights monitoring should continue when UNAMID draws down. He also reiterated his country’s rejection of the International Criminal Court’s legitimacy in any investigation of non-signatory States parties to the Rome Statute.

SACHA SERGIO LLORENTTY SOLÍZ (Bolivia) said the delay in accountability for crimes committed in Darfur cannot be shrugged off, emphasizing that those who have committed war crimes and crimes against humanity must be held to account. Meanwhile, improvement of the security situation should continue through further cooperation among the United Nations, regional organizations and the Government, he said, adding that cooperation between the Court and the African Union is crucial. Noting that the Court is supposed to complement national justice institutions, he stressed the need to build national capacity while simultaneously seeking accountability for major crimes. In addition, greater emphasis must be placed on restorative justice, he said, adding that the Rome Statute should be reconsidered in that light, to determine whether other kinds of reform are needed to meet its goals of universality and effectiveness in building the rule of law. He emphasized, however, that it is disingenuous to expect such universal standards of justice when certain countries stand outside the Rome Statute and criticize it. He called upon all countries that have not yet done so to accede to the Treaty.

IRINA SCHOULGIN NYONI (Sweden) said Member States continue to fail in upholding their responsibilities. Suspects remain at large and the President of Sudan continues to travel internationally, including to States parties to the Rome Statute, she said, calling on authorities to apprehend individuals subject to warrants. The Government of Sudan must ensure justice for victims. Welcoming the decline of reported violence against civilians, he expressed concerns about reports of sexual and gender-related violence. While the Court has rendered landmark verdicts on the recruitment or use of children in armed conflict, she regretted to note increased pressure and hostile rhetoric against it, particularly on the anniversaries commemorating the Rome Statute, Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. Despite this situation, the work of the Court and tribunals has a real impact, she said, adding that “it is impartial and goes wherever justice is most at danger.”

JOANNA WRONECKA (Poland) called on the international community to work to ensure accountability for the victims of serious crimes in Darfur, saying this includes facilitating the collection of evidence, freezing of assets and assistance in the arrest and surrender of fugitives. Acknowledging the decrease in violence against civilians, she expressed concern about the high numbers of internally displaced persons and clashes between Government forces and Sudan Liberation Army-Abdul Wahid in Jebel Marra. Without addressing the root causes of conflicts, durable peace in Darfur may be hard to achieve.

WU HAITAO (China), noting improvements in Darfur’s security and political situation, welcomed the Government’s efforts in those areas, saying they demonstrate that it is fully capable of taking sovereign responsibility for the welfare of its people. He expressed hope that the international community will respect that sovereignty. Noting that his country’s position on the International Criminal Court’s activities in Sudan remains unchanged, he emphasized that the Court must fully respect Sudan’s sovereign responsibility for justice, adding that China believes Heads of State have legal immunities that cannot the Court cannot take away.

LISE GREGOIRE VAN HAAREN (Netherlands), welcoming the decrease in fighting in Darfur, expressed concern about continuous reports of sexual and gender-based violence, arbitrary arrests and extrajudicial killings. Gross human rights violations trigger further conflict, she said, highlighting the Council’s responsibility to stop such crimes. Recalling that in 2005, the Council unanimously referred the situation in Sudan to the International Criminal Court, she said it is unacceptable that fugitives of the Court continue to travel unhindered. The Council must now work on ways to address cases of non-cooperation with the Court.

DIDAR TEMENOV (Kazakhstan), welcoming Khartoum’s commitment to stability in Darfur, noted the continuing improvement in the security situation and the overall reduction of intercommunal clashes, criminal activities and human rights incidents. Emphasizing that constructive dialogue, in accordance with the Doha Document for Peace in Darfur is the only way to establish peace and stability, he encouraged the Court to consider the unified position of the African Union and establish dialogue with the African Union Open-ended Committee of Ministers of Foreign Affairs on the International Criminal Court.

SHERAZ GASRI (France) said it remains the Council’s responsibility to take determined action against impunity in Sudan and to end the crimes committed in Darfur. It is critical for the long-term stability of Darfur and Sudan, she added. “The fight against impunity and respect for human rights are inseparable.” Welcoming the overall improvement in Darfur’s security situation, she nevertheless expressed concern that clashes continue to displace civilians and imperil human rights, including through sexual violence. Since UNAMID must play its role fully in those areas, it must have guaranteed access to vulnerable civilians anywhere in Darfur, she said, adding that, as the mission draws down, the country team must build its human rights capabilities. The responsibility of States to cooperate with the International Criminal Court in conformity with Council resolutions extends to Sudan, which must execute the arrest warrants for crimes committed on its territory, she affirmed, emphasizing that the Council must follow up on the Court’s legitimate demands that it be allowed to complete its mandate fully. France refuses to trivialize the refusal of Member States, particularly signatory States, to cooperate with the Court, she said, reiterating her delegation’s proposal to invite States that have not been able to cooperate with the Court to speak before the Council.

GENNADY V. KUZMIN (Russian Federation) noted that paragraph 22 of the Prosecutor’s report contains a mysterious reference to “significant progress” made in the Court’s investigations. Aside from that reference, however, it seems the Court has spent its time tracking Mr. Bashir’s international travel and demanding that States comply with its rules, he said, describing those actions as far less burdensome than interviewing victims. Underlining that Mr. Bashir continues to enjoy immunity as a State official, even after being referred to the Court, he called upon the latter to focus on its priority functions, saying it should – “at long last” – begin an objective, comprehensive investigation into the situation in Darfur.

VICTOR MANUEL ELÉ ELA (Equatorial Guinea) agreed with other speakers that few, if any, changes have emerged in the Prosecutor’s latest report, which nevertheless trumpets “significant progress” without clarifying what that progress is. Citing progressive overall security improvements in Darfur, he noted that clashes nevertheless continue in Jebel Marra. Condemning reported attacks against civilians and calling upon the Government to protect and restore the dignity of its people, he noted the report mentions Equatorial Guinea as one of the countries visited by Mr. Bashir. He confirmed that he was, indeed, invited to the country in October, but pointed out that Equatorial Guinea is not a State party to the Rome Statute and is therefore not bound by it. He went on to caution against attempts to “run roughshod” over non-States parties, saying they risk undermining the Council’s credibility.

SUSAN JANE DICKSON (United Kingdom) encouraged the Government of Sudan to focus its efforts on building the capacity of its police force and judiciary, expressing hope that it will proceed with plans to open a branch of the Office of the United Nations High Commissioner for Human Rights (OHCHR) while helping to ensure a smooth transition from peacekeeping to peacebuilding. It should also abide by its ceasefire obligations, she said, also urging the Sudan Liberation Army-Abdul Wahid group to engage immediately with the peace process. She further urged all parties to build on recent political momentum to reach a political agreement that addresses the roots of the conflict in Sudan. As a co-host of the July Arria-formula meeting on the matter, the United Kingdom calls upon all States parties to cooperate fully with the Court, she said, emphasizing that the Government must stop disregarding Council resolution 1593 (2005), and expressing frustration that fugitives such as Mr. Bashir still openly travel abroad, including to States parties to the Rome Statute. She urged all States parties to abide by their obligations and expressed support for France’s the proposal that States that have failed to cooperate with the Court should be invited to address the Council.

BADER ABDULLAH N.M. ALMUNAYEKH (Kuwait) said problems in Darfur must be dealt with in a coherent manner, given that the security situation is improving. Expressing hope that the Court’s efforts will not hinder those improvements, he recalled the objections voiced by the African Union, the League of Arab States and the Organization of Islamic Cooperation (OIC) to the Court’s activities in Sudan, including its issuance of a warrant for the arrest of the country’s President. The 2010 Arab Summit denounced partiality in international justice, he recalled, adding that it also called for respect for Sudan’s independence and sovereignty.

MAHLET HAILU GUADEY (Ethiopia) said the application of warrants in the Sudan situation is not helpful to the situation there. In fact, the manner in which the Court has acted in Africa as a whole has left a bad impression, and for that reason the African Union Commission is examining the matter, she said. While noting that many member States of the African Union were among the first to sign on to the Rome Statute, she emphasized that the search for justice must not be pursued to the cost of the search for peace. That is why Africa has requested that the Court withdraw the Council’s referral of the Darfur situation, she said, pointing out that, unfortunately, the request has been ignored. Welcoming the Government’s efforts to improve the security situation in Darfur while pursuing political progress, she urged further international support for those efforts.

PAUL DUCLOS (Peru) expressed regret and concern over the growing insecurity in Jebel Marra, further condemning the razing of villages, murders and sexual violence reported there. Against this backdrop, he urged the Prosecutor to redouble her efforts and the Government of Sudan to cooperate with her office to prevent impunity. Also voicing regret that some States parties to the Rome Statute have shown contempt for that agreement - including by allowing fugitives from the Court to openly travel within their territories – he said the Council requires specific procedures to deal with cases of non-compliance. In this regard, he expressed support for the French proposal presented in July, emphasizing that confidence in the justice system is particularly importance for a country which - like Sudan - has been scarred by conflict.

KACOU HOUADJA LÉON ADOM (Côte d’Ivoire), Council President for December, spoke in his national capacity, saying that the overall drop in violence in Sudan is a result of productive cooperation between the Government, UNAMID and other partners working to end the conflict. Noting with concern that allegations of human rights violations continue, he said the fight against impunity remains an important lever in the national reconciliation process. Establishing lasting peace depends on holding accountable those responsible for grave crimes, he said, urging the Government to join in constructive cooperation with the Prosecutor to address concerns. Weak institutional capacity and a lack of resources are having a negative impact on Sudan’s ability to hold criminals responsible, he said, inviting the international community to support the Government and help it transition successfully from peacekeeping to peacebuilding. As a State party to the Rome Statute, Côte d’Ivoire supports the Office of the Prosecutor in its efforts to combat impunity.

OMER DAHAB FADL MOHAMED (Sudan) said the Prosecutor’s twenty-eighth report has brought nothing new and is again full of contradictory and erroneous statements about Darfur. He noted also the statements by permanent Council members today that the International Criminal Court has no jurisdiction over non-signatories to the Rome Statute. Additionally, the report does not reflect the improving conditions in Darfur or the fact that — when describing the President’s visits to other countries — he was visiting as a peacemaker. He emphasized the need to reconsider the Court’s role in transitional justice and in the Darfur situation, particularly after European investigations revealed corruption in the Court. He said that as a result of that corruption, the Court is making charges to please those financing it. He went on to stress that the Court must address its bias, including the fact that it will never press charges against soldiers of powerful States while sparing no effort to indict a sitting African Head of State.

In that action, the Court is impeding progress in Darfur and dividing the Council, he affirmed, adding: “The only obstacles to peace in Darfur now are the efforts of the Court.” That contradiction between peace and justice must be erased, he said, stressing the imperative to uphold the principle of equality among States. No entity can compel a Member State to commit to any treaty that it has not joined, he said, underlining the need to respect the African Union’s opinion. African States will fight impunity through national justice systems, with international cooperation, he said, emphasizing Sudan’s commitment to punishing crimes under international conventions, which also affirm the importance of national sovereignty. He went on to cite a series of articles in European media accusing the Court’s previous Chief Prosecutor of corruption, reiterating that the institution is “riddled with corruption from head to toe”, which has allowed it to turn into “a tool of political bias”.

For information media. Not an official record.