H.E. Ms. Fatou Bensouda, Procurator of the International Criminal Court, presented her Twenty-Eighth Report of the United Nations Security Council pursuant to UNSCR 1593 (2005) on the situation in Darfur. Here below a transcript of her speech.
“Over 13 years ago, on 31 March 2005, at a meeting also attended by the late United Nations Secretary General, Mr. Kofi Annan, members of this Council came together to adopt Resolution 1593. The Council considered that the situation in the Sudan constituted a threat to international peace and security, and decided to refer the situation in Darfur since 1 July 2002, to the Prosecutor of the International Criminal Court.
Following the adoption of Resolution 1593, members of this Council made statements that noted allegations of grave crimes, and highlighted the need to ensure accountability and justice in Darfur. The representative of Benin, for example, stressed the need to end the reign of impunity and to ensure credible and timely action against persons charged with atrocities and serious crimes.
Some members of the Council also emphasised that the Council’s support would be crucial to ensure an effective outcome to the referral of the Darfur situation to my Office.
Since the moment the Darfur situation was referred to my Office, we have consistently strived to establish the truth and to secure justice for victims, by pursuing accountability for alleged perpetrators of Rome Statute crimes in Darfur.
At the request of my Office, Pre-Trial Chambers of the Court have issued multiple arrest warrants in the Darfur situation, after independently assessing the evidence. Today, warrants remain outstanding for five persons, all of whom occupied positions of responsibility at the time of their alleged crimes, namely officials of the Government of the Republic of Sudan: Mr. Omar Al Bashir, Mr. Ahmad Harun and Mr. Abdel Hussein; militia leader Mr. Ali Kushayb, and rebel leader Mr. Abdallah Banda. Notably, several of these suspects continue to hold senior positions within the Government.
Combined, these arrest warrants include over sixty counts of war crimes and over fifty counts of crimes against humanity. The alleged crimes include extermination, murder, rape, forcible transfer and torture. These are the crimes that rightly preoccupied and concerned this Council resulting in the referral of the Darfur situation to my Office. Yet the alleged perpetrators of these crimes remain free, while the victims and affected communities continue to wait for justice.
My Office’s investigations in the Darfur situation continued during the current reporting period and significant progress was achieved. Notwithstanding the many challenges we face, my investigators remain dedicated to their mission and continue to identify leads and interview new witnesses each month. 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.
My report notes the positive news that during the reporting period, levels of violence against civilians in Darfur continued to decrease. Nevertheless, the impunity that Resolution 1593 aimed to end continues in Darfur, and regrettably, so do the commission of serious crimes.
These ongoing crimes include attacks against personnel of the African Union-United Nations Hybrid Operation in Darfur. In its Resolution 2429 of 13 July earlier this year, this Council condemned the ongoing impunity for those who attack peacekeepers and urged the Government of Sudan to do its utmost to bring all perpetrators of such crimes to justice. Over 11 years after Mr. Banda’s alleged crimes against African Union peacekeepers, it is a serious indictment on all of us that crimes against peacekeeping personnel continue to be committed in Darfur.
Conflict also continues in the Jebel Marra area between forces of the Government of Sudan and the Sudan Liberation Army-Abdul Wahid. My report refers to information from UNAMID on the destruction of villages and the killing, injury and displacement of civilians. I continue to be deeply concerned by reports of sexual and gender-based violence against women and girls in Darfur.
In Resolution 2429, this Council expressed concern that UNAMID is unable to access areas from which it has withdrawn. I call on the Government of Sudan to respond affirmatively to this Council’s request for UNAMID to have unfettered access throughout Darfur, not least because of the vital role that UNAMID plays in monitoring and reporting violence against civilians in Darfur.
My analysts will continue to assess allegations of current crimes in Darfur. They do so, not for the purpose of simply monitoring and reporting on the findings of others, as some assert, but rather to ensure that my Office is aware of allegations of ongoing grave crimes committed in Darfur and to feed that information into our on-going assessment of the situation over which we are seized as well as our independent investigations. We will continue to make use of reports from reliable entities and sources operating in Darfur.
I do wish to emphasize that in direct contravention of Resolution 1593, the Government of Sudan continues its policy of antagonism and non-cooperation, in effect obstructing my Office’s ability to conduct on the ground investigations in Darfur. The Council is once again invited to urge the Government of Sudan to cooperate with my Office in accordance with its own Resolution.
I now turn to the issue of cooperation more broadly. Regrettably, as I outline in my latest report, my Office continues to face multiple obstacles and impediments in relation to this issue.
As regards the arrest and surrender of the Darfur suspects, this Council will recall the litigation before the Appeals Chamber in relation to Jordan’s failure to arrest and surrender Mr. Al Bashir to the Court, when he visited Jordan on 29 March 2017. Pre-Trial Chamber II found that Jordan had failed to comply with its obligations under the Statute and decided to refer Jordan to the Assembly of States Parties and this Council.
As this Council is aware, Jordan appealed that decision, and this resulted in extensive litigation during the reporting period. This involved multiple written briefs, and culminated in a five day hearing before the Court’s Appeals Chamber from the 10th to the 14th of September earlier this year. The issues focused on head of state immunity, Resolution 1593, and articles of the Rome Statute relating to cooperation, consultations with the Court and waiver of immunity. In the course of this process, multiple legal submissions were made, including by Jordan, the African Union, the League of Arab States, professors of international law, and of course, my Office.
This comprehensive and inclusive legal process has now concluded, and we await a final determination by the Appeals Chamber.
During the reporting period, Mr. Al Bashir continued to travel internationally, including to Djibouti and Uganda in July. Both of these States Parties were previously referred to the Assembly of States Parties, and this Council, for their failure to arrest and surrender Mr. Al Bashir to the Court while on previous trips to their territory in 2016. No action was taken by the Council in relation to those, or indeed any other referrals. It is therefore not surprising that States Parties to the Rome Statute, such as Djibouti and Uganda, continue to host ICC suspects on their territory, in blatant violation of Court findings. In the absence of any meaningful consequences for such instances of non-compliance, we are unlikely to see a change in such regrettable patterns. This status quo is hardly conducive to advancing the cause of justice in Darfur.
My Office, yet again, calls on this Council to take meaningful action to give effect to non-compliance referrals by the Court.
My Office took note of the 9th of July Declaration by the High Representative of the European Union that called on all United Nations Member States to abide by and implement the resolutions adopted by this Council, notably Resolution 1593.
I remain grateful for the principled support of members of this Council, international and regional organisations, and indeed, all States who support my Office’s work in the Darfur situation.
In this regard, I was particularly encouraged by the recent 6th of July Arria-formula meeting convened on the relationship between the Court and Council. This timely meeting was helpfully co-sponsored and organised by ICC States Parties on this Council, and I take this opportunity to once again express my appreciation to them for the initiative. The session provided a unique opportunity for the President of the Assembly of States Parties, Council members, State representatives, civil society, and my Office, among others, to exchange views on how to further enhance coordination and synergies between the Council and the Court.
Notably, numerous participants at that meeting expressed concern at the Council’s failure to act in instances where a State is referred to the Council, pursuant to a finding of non-compliance by the Court. Several participants proposed concrete, entirely workable measures that this Council could adopt. I remain hopeful that the constructive dialogue and proposals at that meeting will provide further momentum resulting in concrete action being taken by the Council on this issue.
As we are all aware, in Resolution 1593, this Council decided that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and my Office. Yet the Government of Sudan continues to completely disregard the Council’s demand for such cooperation.
On the occasion of my last report to this Council, I repeated my offer to the Government of Sudan to engage in dialogue in relation to the situation in Darfur, including with respect to the issue of surrender of the Darfur suspects to the Court. I also note that this Council, in Resolution 2429, urged the Government of Sudan to “consolidate and expand its efforts to end impunity.”
Yet despite my offer, and despite the representative of the Sudan previously asserting to this Council that combating impunity is a top priority, the Government of Sudan has not engaged with my Office. I also note that during the proceedings initiated by Jordan, the Appeals Chamber invited Sudan and Mr. Al Bashir to file submissions on the issues raised by the appeal. Yet they chose not to engage with the Court.
The Rome Statute requires my Office to investigate incriminating and exonerating circumstances equally. If the Government of Sudan has such evidence, both incriminating and exonerating, I invite it to come forward and share that evidence with my Office. The Government of Sudan can rest assured that the due process rights of any suspects that appear before the Court will be fully respected. These include the right to counsel of their choice and more importantly, the right to a fair, independent and impartial trial.
You will recall that at my last briefing to this Council on the Darfur situation, the representative of Bolivia asked for a report on activities undertaken by the Court to promote the strengthening of judicial organs in Sudan. Consistent with Resolution 1593 and in accordance with the principle of complementarity, my Office is prepared to support national efforts to combat impunity in Darfur, to the extent that my mandate and limited financial resources will permit. However, in the absence of any cooperation from Sudan, I regret I am unable to report any progress in this regard.
The Government of Sudan can and must demonstrate its stated commitment to ending impunity, and its respect for the authority of this Council, by opening a new chapter of cooperation with my Office. It should allow my staff to conduct investigations on the ground in Darfur, and facilitate access to victims, witnesses and relevant documentary evidence. I again invite the Government of Sudan to work with my Office to pursue justice for the victims of the unimaginable atrocities that have occurred in Darfur.
I will conclude by recalling another statement made by a Security Council member at the time that the Council passed Resolution 1593, and I quote: “What the Council said today is there is no way, in our times, that anyone, anywhere in the world, can get away without just retribution for the commission of serious crimes.”
Regrettably, justice and accountability for Rome Statute crimes for now remain unrealised aims in the Darfur situation. This is undeniably an unacceptable situation which must not be permitted to continue. Justice delayed is justice denied. The judgment of victims and the critical eyes of history are upon us.
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Fatou Bensouda, photography by ICC
