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ICC Prosecutor statement on Darfur, Sudan pursuant to UNSCR 1593 (2005)

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Mrs Fatou Bensouda, Prosecutor of the International Criminal Court.

Statement to the United Nations Security Council on the situation in Darfur, Sudan, pursuant to UNSCR 1593 (2005).  New York, 15 December 2015.-

Each time I appear before the United Nations Security Council to brief its Members on judicial developments at the International Criminal Court (“Court” or the “ICC”) and to update you on the activities of my Office with respect to the Situation in Darfur, I wish I could declare that at last the victims of the protracted and incessant conflict in Darfur will soon see justice, and that persons alleged to be responsible for Rome Statute crimes in Darfur will soon be held accountable before the Court. Unfortunately, the reality is that the individuals against whom ICC arrest warrants have been issued continue to remain at large.

Ten years have elapsed since this Council concluded that the Situation in Darfur, Sudan, constituted a threat to international peace and security. It was on this basis that the Council decided to refer the Darfur situation to the Office of the Prosecutor of the Court so that those alleged to be responsible for Rome Statute crimes may be investigated and prosecuted.

As recently as 29 June 2015, in its Resolution 2228, this Council reiterated yet again, as it has done in many of its previous Resolutions, that “the situation in Sudan constitutes a threat to international peace and security.” Starting with UNSCR 1593, each of the resolutions adopted by this Council represented hope for the victims of grave crimes allegedly committed in Darfur that they will not be forgotten; that those responsible for their suffering will be held accountable, and that peace and tranquillity will return to their lives, families and communities.  

I observe with great regret that the adoption of each Resolution has, in practical terms, amounted to no more than an empty promise.  Year after year, victims’ hopes and aspirations for justice and a durable peace have been dashed.

Instead, the people of Darfur have continued to endure desolation, alleged gross violations of human rights; indiscriminate killings; mass rape and sexual abuse, while the individuals against whom ICC arrest warrants have been issued, and who may be implicated in these crimes, continue to evade justice.  Countless victims have been demoralised.

After all, who can blame them when attaining justice appears so remote; not the least because of the absence of adequate follow-up and support from the Council.  Their frustration and resignation in the face of inaction must weigh heavily on our collective conscience.

My Office’s numerous Reports to this Council over the years must offer little, if any, solace to victims of atrocity crimes in Darfur. Despite my repeated requests for the Council to take action with respect to Sudan’s blatant disregard of its obligations, and in violation of this Council’s Resolutions, my appeals continue to be unheeded.

As my Office’s reports have indicated, Mr Al Bashir is not only a fugitive from justice who continues to travel across international borders, but he also harbours other fugitives and refuses to facilitate their surrender and transfer to the ICC to be tried.

My Office, and indeed the Court as a whole, do not have powers of arrest. Those powers rest with States. In the case of Sudan, this Council which referred the situation in Darfur to the ICC has important responsibilities to ensure that States uphold their obligations. I can only reiterate my appeals to this Council to take appropriate measures within its powers to ensure that all Darfur situation fugitives are apprehended and brought to justice for the sake of the victims.

Today, my message to the victims in Darfur is clear and unequivocal: we shall not stop our work and we shall not despair. My Office remains firmly committed to its legal mandate with respect to Darfur, Sudan.  We will also continue our principled approach and will repeatedly call upon this Council to more robustly support our work. Victims of atrocity crimes in Darfur should rest assured that the cases against the Sudan suspects are far from over. Contrary to the misinformed belief that investigations in Darfur have been closed, a team of committed lawyers and investigators from my Office is continuing with its work of interviewing witnesses, collecting documentary evidence and seeking information from relevant sources.

My team is also continuously reviewing the evidence and following leads. In short, notwithstanding the challenges present, we are doing everything we can within our mandate and means.  Our resolve to fully meet our mandate vis-à-vis Darfur remains unshaken. Let me be clear, the arrest warrants against all Sudanese fugitives remain in full force and effect, and my Office will continue its efforts to do everything feasible within its powers to press for their arrest and surrender.

The victims of Darfur will no longer find solace in our words.  They deserve tangible justice, and they deserve to see justice is being done. What is required is concrete and joint action by this Council, the States and the Court to achieve real progress. 

Without arrest and surrender, this Council will not be able to deliver on the promise to hold accountable those alleged to be responsible for committing Rome Statute crimes in Darfur, neither will it be able to facilitate sustainable peace and security in Sudan.

Whether it be in the former Yugoslavia, Rwanda or Sierra Leone, this Council has repeatedly demonstrated that where there has been widespread commission of atrocity crimes against thousands of victims, peace and reconciliation cannot be fully achieved unless and until those responsible for the crimes are held accountable. The same rationale applies to Darfur. The criminal justice process that commenced with the Court’s issuance of arrest warrants against Mr Al Bashir and other suspects in the situation must be adequately supported.

I must also emphasise that my Office’s ability to effectively and fully discharge the mandate this Council entrusted to it is hampered by lack of resources.  The level of investigative activities in Darfur is necessarily a function of capacity and resource constraints. I have stressed similar concerns in various other contexts, including in my last briefing before the Council last month.

I take this opportunity to once again recall the provisions of article 115(b) of the Rome Statute in accordance with which funds of the Court may be provided by the United Nations, in particular in relation to the expenses incurred due to referrals by the Council.  The situation in Darfur is one such referral, and it is incumbent upon this Council to help support and devise innovative ways of providing the much needed resources for my Office’s investigative activities.

Victims of Darfur have been let down for far too long.

If I may be so bold, this Council must do more to demonstrate its commitment to Darfur, Sudan. It must confidently play its part in facilitating the arrest of suspects against whom the Court has issued warrants of arrest.  It must act concretely on the Court’s non-compliance communications.  In this regard, I thank the Council Members who are tirelessly working to ensure that communications from the Court receive the attention they deserve by the Council.  Ultimately, this august body must recognise its crucial role vis-à-vis those states, including Sudan, that have been found to be in non-compliance by the Court, and to fully assume its responsibilities to advance the objectives of the Rome Statute.

I conclude my remarks this morning by making the following observation: the interplay between the Court and the Council is entrenched in the founding treaty of the ICC, and hence, is here to stay. It is reasonable to expect that with time and increased inter-institutional interaction, the burgeoning relations between these two important institutions will develop further and evolve. 

I encourage regular exchanges with the Council, independent of the situation related periodic briefings, so that we may jointly brainstorm and address inter-institutional matters regarding how to strengthen the support and working methods of the Council in relation to the ICC, building on a similar and most helpful initiative organised in October of last year under the Presidency of Argentina.  More opportunities for dialogue and exchange of views between the Court and the Council will be conducive to generating ideas and practical solutions, enabling the Council to more effectively respond to ICC related matters. 

Ending impunity for the world’s most destabilising and gravest crimes is not the prerogative of one single institution. It is a collective responsibility with humanity as a whole as its beneficiary.

This Council’s tangible, consistent and principled support for the Court will be an important factor for not only the maintenance of international peace and security but also the cause of international criminal justice in this new century. Indeed, the former is in many ways contingent on the latter.

As detailed in my report, terrible crimes allegedly continue to be perpetrated in Darfur.  Only strong and committed action by the Council and States will stop the commission of grave crimes in Darfur and ensure that the perpetrators of past crimes are held accountable.

History will surely stand witness to the tenacity of our will and ability to deliver on our respective obligations.



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