Wednesday, August 10, 2022

Fatou Bensouda – Statement to the UN Security Council on the Situation in Darfur

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Pursuant to UNSCR 1593 (2005) by Fatou Bensouda, Prosecutor of the International Criminal Court.

18 December 2019 –  ” In June, when I last briefed this Council, I emphasised that recent events in Sudan presented a unique opportunity to ensure that the suspects against whom warrants of arrest have been issued by the International Criminal Court (“ICC” or the “Court”) in the Darfur situation finally face justice in a court of law.

I urged the authorities in Sudan and this Council to seize that opportunity. I also expressed my hope that Sudan would begin a new era of cooperation with my Office, and more generally, the Court.

Today, emboldened by events over the last six months, I repeat those messages, with greater confidence that Sudan will honour its commitments to deliver justice for the victims in the Darfur situation.

During the last six months, Sudan’s extraordinary transition has continued. On 17 August, the Constitutional Declaration, which set out a political framework for the following 39 months, was signed by the Transitional Military Council and the Forces for Freedom and Change. On 21 August, the new Sovereign Council was sworn in, composed of six civilians and five military personnel. Shortly thereafter, a new Cabinet was inaugurated, led by Prime Minister Abdallah Hamdok.

These political changes have already yielded a number of positive developments in relation to the Darfur situation. Foremost amongst these is the Juba Declaration, signed on 11 September by the Sovereign Council and a coalition of armed groups across Sudan, including in Darfur. This declaration sets out a comprehensive roadmap for peace across Sudan with the ultimate aim of a national peace agreement. Given the correlation between peace, stability and atrocity crime prevention, it is essential that all sides commit to this initiative and that the ongoing crimes in Darfur stop.

As you are aware, there are ICC arrest warrants for the five suspects in the Darfur situation, and each of these remain in force, notwithstanding the ongoing developments in Sudan.

In response to my last report to this Council, the representative of Sudan confirmed that investigations by the Sudanese public prosecutor were ongoing in relation to Messrs Omar Al Bashir, Abdel Raheem Hussein and Ahmad Harun. All are believed to be in detention in Khartoum. The specific whereabouts of the remaining two Darfur suspects, Messrs Ali Kushayb and Abdallah Banda, are unknown.

Mr Al Bashir has been tried in Sudan for financial crimes. Last week, on 14 December, he was reportedly sentenced to two years in detention. A statement issued by Sudan’s public prosecutor shortly after the verdict indicated that a number of other cases are pending against Mr Al Bashir, including in relation to the 1989 coup that brought him to power and crimes against humanity in Darfur.

In my last report to this Council, I emphasised that pursuant to the fundamental principle of complementarity enshrined in the Rome Statute, the primary responsibility to investigate and prosecute crimes rests with national criminal jurisdictions. In response, the representative of Sudan noted this reference to complementarity, describing it as “positive.”

I was encouraged by the fact that he also emphasised that “fighting impunity is a noble cause of justice” and that this “falls primarily within the responsibility of the relevant national investigative and judicial institutions.” While this position is entirely consistent with the Rome Statute, the principle of complementarity ensures that while States have the primary responsibility for bringing perpetrators to justice, the ICC’s jurisdiction is engaged if States are inactive or otherwise unwilling or unable to exercise that duty genuinely.

With this in mind, in the present circumstances, notwithstanding recent media reports in relation to Mr Al Bashir, the Office is not aware of any concrete information suggesting that the suspects in the Darfur situation are currently subject to domestic investigation or prosecution for the same criminal conduct alleged in the relevant ICC arrest warrants.

Unless and until Sudan can demonstrate to ICC judges that it is willing and able to genuinely investigate and prosecute the Darfur suspects for the crimes alleged in their respective arrest warrants, then these cases will remain admissible before the ICC.

Sudan must ensure that the five ICC suspects in the Darfur situation are brought to justice without undue delay, either in a courtroom in Sudan or in The Hague. In this way, this Council’s referral of the Darfur situation to my Office can finally yield tangible results in court for the victims this Council sought to protect, and progress can be made towards resolving this Council’s referral of the Darfur situation to the ICC. 

In June, I made it clear that my Office is ready to engage with Sudan. Since that time, I am encouraged by public statements made by high-level Sudanese officials, which indicate a clear commitment to accountability in Sudan.

Notably, Prime Minister Hamdok declared before the UN General Assembly on 27 September that “[t]he Sudan is […] determined to uphold its commitment to the principles of international law, international human rights, as well as to the efforts aimed at eradicating all forms of discrimination, exploitation, injustice and inequality.” In early November, the Prime Minister reportedly visited Darfur, including camps for internally displaced persons, where Darfuris reportedly appealed for justice.

On 17 October, in response to the special report of the Chairperson of the African Union Commission and the Secretary-General of the United Nations on the African Union-United Nations Hybrid Operation in Darfur (“UNAMID”), the Sudanese representative told this Council that Sudan is “a new country that seeks to join the international community as a peace-loving member that seeks international cooperation, is committed to international law and respects the basic rights of its citizens.” 

A commitment to international law must include Sudan’s duties under the United Nations Charter, pursuant to which Sudan is bound by this Council’s decisions, including its decision to refer the Darfur situation to the ICC. A respect for international human rights and the basic rights of Sudan’s citizens must include a willingness to ensure accountability for the gross human rights violations against Darfuri Sudanese citizens, as alleged in the ICC arrest warrants.

Sudan now has the opportunity to demonstrate this commitment to international law, and respect for international human rights, by complying with its obligations arising from Resolution 1593 and working with my Office. I have consistently emphasised that this cooperation is crucial to the Office’s independent and impartial investigations in the Darfur situation. In this regard, it is my sincere hope that in the near future, my Office will be granted access to Sudan to facilitate our work and to discuss the way forward.

Sudan has a legal duty to cooperate with my Office, pursuant to this Council’s Resolution 1593 and the jurisprudence of the Appeals Chamber of the ICC. Cooperation with the ICC would clearly demonstrate to this Council and the international community writ large that Sudan is committed to achieving justice for the victims in the Darfur situation, and that it has followed through on its declared commitments and assurances with visible and practical steps. 

Despite the positive developments in Sudan, including in relation to the peace process, crimes in Darfur regrettably continue. These crimes must stop.

The Darfur situation remains a priority for my Office and I am pleased to report that substantial progress has been made in the investigations during the reporting period. In addition, my team continues to monitor events in Darfur and where circumstances require, I will investigate and where appropriate, prosecute those most responsible for crimes in Darfur that fall within the Court’s jurisdiction.

Clashes between government forces and Abdul Wahid al-Nur’s Sudan Liberation Army (“SLA-AW”) have reportedly continued in the Jebel Marra area, resulting in approximately 60 civilian casualties. 

Unfortunately, this fighting has also led to the displacement of over 2,300 people in Darfur, mostly women and children, and exacerbated already unstable living conditions in camps for nearly two million internally displaced persons in the region. 

I am deeply troubled by the fact that sexual and gender-based violence, as well as grave violations against children, have persisted in Darfur throughout this ongoing armed conflict. Since June 2019, UNAMID has reported sexual and gender-based violence against 17 victims, including seven minors, and grave violations against 84 children, including 35 girls. Although UNAMID has identified the perpetrators of these atrocities as mostly SLA-AW fighters, they have also noted violations by the Rapid Support Forces (“RSF”), among other groups.

Additionally, during July 2019, UNAMID reported that SLA-AW elements were responsible for the temporary abduction of several local and international staff members from international non-governmental organisations around Golo, Jebel Marra, and the looting of critical humanitarian equipment.

This disturbing incident closely follows the alleged seizure of UNAMID facilities by the RSF that I mentioned to the Council earlier this year. I am pleased to note that UNAMID now reports that Sudanese authorities have provided assurances that these facilities would be handed over to the Darfur state for the purposes of health, education, and other services.

It is with these essential human rights monitoring functions in mind that I commend the Council on its adoption of UN Security Council Resolution 2495, extending the mandate of UNAMID until 31 October 2020. 

In my statement before the Council in June 2019, I also expressed deep concern regarding the alleged attacks by government forces on peaceful protestors in Khartoum on 3 June. As you will recall, these government forces allegedly comprised the RSF, whose members include former Janjaweed militias linked to systematic human rights abuses in the Darfur region between 2003 and 2008. Subsequently, the new administration has created a commission of inquiry to investigate human rights violations that occurred in the course of these attacks. I express my sincere hope that this investigation is conducted in an independent, impartial, and fair manner by the competent domestic authorities.

In relation to recent judicial activities, on 30 October 2019, a confidential status conference was held by the Trial Chamber in Mr Banda’s case. The purpose of this was to discuss the status of the case and the way forward to ensure Mr Banda’s appearance at trial. As I mentioned, Mr Banda’s arrest warrant has not been executed and he remains a fugitive from the Court.

Following this status conference, the Chamber made a number of requests, including for submissions from the Prosecution and the Defence on their respective positions on trials in absentia in the specific circumstances of Mr Banda’s case. These confidential submissions were filed on 13 December 2019, and the parties now await further direction from the Chamber.

It would be remiss of me not to express my sincere gratitude for the principled support and cooperation that my Office continues to receive from a number of States. I welcome, in particular, the public statements that members of this Council have made to encourage Sudan to cooperate with my Office. It is time to embark on a new chapter in the relationship between Sudan and my Office rooted in a commitment to finally bring those most responsible for the atrocity crimes perpetrated against the people of Darfur to justice. My Office is ready and willing to do so, and we hope that our extended hand of cooperation in the pursuit of justice is met favourably by the new authorities in Sudan.

My Office also continues to benefit from essential support provided by various organisations and individuals committed to the cause of justice in Darfur. In particular, I express my sincere and heartfelt appreciation to Darfur victims groups. Many courageous women and men in these groups work tirelessly to ensure that justice in the Darfur situation remains a critical issue in Sudan’s transition. I am humbled and inspired by their strength, courage and determination.

I will finish where I began, with a request for reinvigorated support and engagement of Sudan and this Council in the Darfur situation.

Sudan continues in its extraordinary journey. Its publicly stated commitments to international law, international human rights and justice, have created a renewed expectation for accountability in the Darfur situation. Sudan is now on a path towards greater peace and stability. If this can be achieved, justice for the victims will be essential to comprehensive and enduring peace in Darfur.

In the process of its transition, Sudan has benefited from the support of this Council and the UN system, the African Union and multiple States and regional organisations. Now a principled caucus must rally to strongly support and encourage Sudan in its pursuit of justice in Darfur.

In response to the special report on UNAMID on 17 October, the representative of Sudan told this Council that the “Sudan of today is totally unlike the Sudan the Security Council has come to know over the past three decades.” These are promising words that need to translate into action.

I now invite Sudan, with the support of this Council, and all stakeholders in the Darfur situation, to work with my Office, and in doing so, to demonstrate that the Sudan of today is unambiguously committed to achieving the long awaited justice for the victims in Darfur. As it has been most eloquently said in these timeless words: “[t]he arc of the moral universe is long, but it bends towards justice.”

We must seize the opportunity now to take concrete steps towards ending impunity for the alleged crimes in Darfur. Before you and the representatives of Sudan today in this august body, I reiterate my Office’s willingness to engage in dialogue and cooperation with Sudan towards ensuring justice is finally served for the victims of atrocity crimes in Darfur – either in a Sudanese court, or before the ICC.”

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