September 26, 2017

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Fatou Bensouda before UN Security Council

Mrs. Fatou Bensouda, Prosecutor of the International Criminal Court, Photography by UN.

Statement before the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005)

‘At the invitation of this august body, I return from The Hague to provide my twenty-fifth report on the situation in Darfur, pursuant to UN Security Council Resolution 1593.

When this Council referred the situation in Darfur to my Office, it represented a high water mark in the international community’s collective efforts to realise justice and accountability for the grave crimes under the Rome Statute committed in Darfur.

Undoubtedly, this referral not only provided hope but also raised expectations for the thousands of victims in the Darfur situation that justice will be done.  Some of those victims put their faith in this Council and in the International Criminal Court (“ICC” or the “Court”), and bravely came forward to tell my Office their accounts of the horrific events that they had witnessed and suffered. They often did so at great personal risk and cost.

The evidence obtained from these courageous witnesses provided, in large part, the basis for multiple warrants of arrest, including for Mr Omar Al Bashir, Mr Ahmad Harun, Mr Abdel Raheem Hussein, Mr Ali Kushayb and Mr Abdallah Banda.

With the issuance of these warrants, and in the case of Mr Banda, the confirmation of the charges against him, hopes for justice were high.

Regrettably, however, for many, this hope has increasingly been replaced by disappointment, frustration and even anger at the slow progress in the Darfur situation. Not one of the suspects for whom warrants have been issued has been arrested and transferred to the International Criminal Court.

Let us not forget, these men stand accused of multiple charges for some of the world’s most serious crimes as foreseen under the Rome Statute.

Today, in this important public forum, I say to those victims and their families who continue to long for justice in Darfur: do not despair and do not abandon hope. Despite the many challenges, hope must not be lost as my Office remains steadfast in its commitment to the task, and when choosing between perpetrators and justice, time is in favour of the latter. The UN ad hoc tribunals for Rwanda and the former Yugoslavia offer examples that remind us that persistence and determination can result in the arrest and surrender of suspects many years after the issue of arrest warrants.

I reiterate: my Office remains as determined as ever to pursue justice in Darfur.

Despite budget constraints, I took the decision to add additional investigators and analysts to the Darfur team.

This increase in the size of the team is yielding results. Existing cases are being strengthened through the collection of additional evidence. Extensive analytical work is also advancing these cases. My Office is also intensifying its investigations into new crimes allegedly committed in Darfur.

I take this opportunity to publicly thank my team for their continued efforts in the Darfur situation and for their determination, resilience and professionalism in the face of extremely challenging circumstances, not least the continued policy of complete non-cooperation by the Government of Sudan and the consequent inability to conduct in situ investigations.

Notwithstanding the challenges my Office continues to face, there are reports of some improvement in the conditions on the ground in Darfur. It is my hope that any genuine improvement may present those committed to peace and justice in this region with an opportunity to make progress.

As this Council is aware, the work of the African Union High-Level Implementation Panel, the African Union-United Nations Hybrid Operation in Darfur, otherwise known as UNAMID and other major stakeholders has led to reports of some recent improvement in the Darfur situation. For example, the April briefing by UNAMID to this Council noted that fighting between the forces of the Government of Sudan and armed opposition movements has diminished and the cooperation of the Government of Sudan has improved. UNAMID access to areas in Jebel Marra that were previously off-limits was reported to have improved, although as my report makes clear, any increased access will count for little if not maintained.

Of course, as my report equally notes, serious problems persist in Darfur. In May, after UNAMID’s briefing to this Council, there were reports that the Sudanese army, supported by the Rapid Support Forces, clashed with armed opposition movements in North and East Darfur.

In addition, internally displaced persons continue to be subjected to multiple crimes, including in particular, alleged attacks against their camps and sexual and gender based violence. In this regard, I note that in Resolution 2340 issued in February 2017, this Council deplored “the violations of international humanitarian law and human rights violations and abuses committed by Government of Sudan security forces, their proxies, and armed groups, including those opposing the Government of Sudan, against civilians, including IDPs, particularly in the Jebel Marra area.” I welcome this Council’s call as articulated in this Resolution for all armed actors to refrain from all acts of violence against civilians.

My latest report also highlights the worrying increase during the reporting period of arrests and prolonged detentions of human rights activists and political opponents of the Government of Sudan.

Challenges remain in Darfur. Nevertheless, I welcome, with the necessary caution, the reports of some improvement in the Darfur situation.

As members of this Council have noted on numerous occasions, including in response to my bi-annual reports, lasting peace in Darfur can only be achieved if the root causes of the conflict are addressed. These causes are multiple and complex, but they include the pervading toxic culture of impunity in Darfur for Rome Statute crimes. Tackling impunity and pursuing justice for atrocity crimes in Darfur is the task that this Council mandated to my Office.

This is a mandate I will continue to pursue independently, vigorously and impartially, without fear or favour.  But I need the renewed support of this Council and of all States, in particular States that are party to the Rome Statute.

In 2005, this Council triggered its de facto and de jure relations with my Office regarding the Darfur situation through Resolution 1593.  Those relations and obligations did not stop by the adoption of that Resolution; on the contrary, they only commenced at that juncture with the expectation of adequate follow-up action and support as necessary. I ask this august body once again to provide tangible support for the work of my Office concerning the Darfur situation.

In particular, I renew my longstanding request for the support of this Council in relation to efforts to execute the arrest warrants issued by the Court against the suspects in this situation.  I am equally compelled to repeat my request for this Council’s assistance in facilitating financial assistance by the United Nations for my Office’s work in the Darfur situation.

Before the July judicial recess, a Pre-Trial Chamber of the Court will decide whether South Africa acted in non-compliance with the Rome Statute when it failed to arrest and surrender Mr Al Bashir in June 2015, and if so, whether to refer South Africa to the Assembly of States Parties to the Rome Statute, and/or this Council.

In making its decision, the Chamber will have the benefit of submissions by South Africa, Belgium, the Southern Africa Litigation Centre as amicus curiae and my Office. Taken together, these submissions will allow the Chamber to formulate a reasoned decision which I hope will provide the basis for improved coordination between my Office, the Court, States Parties and this Council in future efforts to arrest and surrender the Darfur suspects. These collective efforts are needed now more than ever.

In terms of travel to States Parties, most recently Mr Al Bashir travelled to Jordan on 29 March 2017. Despite being reminded by the Registry of its obligations to arrest and surrender Mr Al Bashir, regrettably Jordan declined to do so. As a consequence, Pre-Trial Chamber II invited Jordan to provide submissions on this issue for the purpose of a determination by the Chamber on whether to make a formal finding of non-compliance and refer the matter to the Assembly of States Parties and/or this Council. At Jordan’s request, on 2 June 2017, the Chamber decided to extend the deadline for these submissions to the end of this month.

As regards Mr Al Bashir’s travel to non-States Parties, regrettably this also continues.

On another occasion, under diplomatic pressure, as events transpired Mr Al Bashir ultimately did not attend the Riyadh Summit in Saudi Arabia scheduled for the 20th and 21st of May 2017, as previously planned.

Inviting, facilitating or supporting the international travel of any person subject to an ICC arrest warrant is inconsistent with a commitment to international criminal justice. It is also an affront to the victims in the Darfur situation. The States that form this Council have the power, independently and collectively, to positively influence and incentivise States, whether or not parties to the Rome Statute to assist in the efforts to arrest and surrender the Darfur suspects. This applies equally to regional organisations. I respectfully ask the members of this Council to exert that influence in support of the independent and impartial justice my Office is trying to achieve in the Darfur situation.

At a minimum, the Council should demonstrate its support for the work of my Office by taking concrete action in response to decisions of non-compliance or non-cooperation referred to it by the Court.

To date, there have been thirteen such decisions, and yet not one has been acted upon by this Council.  By failing to act in response to such Court decisions, this Council is in essence relinquishing and undermining its clear role on such matters arising from the Rome Statute as negotiated and adopted, and pursuant to Resolution 1593.

I again urge this Council to give serious consideration to the proposals previously advanced by New Zealand and other states for practical and meaningful ways to respond to such referrals by the Court concerning non-compliance and non-cooperation.

As part of these proposals, I also recall New Zealand pointed to the clear need for this Council to find a way through the current impasse in this Council’s relations with the Government of Sudan. My Office wholeheartedly supports this suggestion. In this respect, it is notable that in response to my twenty-fourth statement to this Council in December last year, the representative of the Government of Sudan referred to the “important and noble goal of combating impunity.”

If the Government of Sudan is genuine in its commitment to combating impunity, then this Council should invite it to demonstrate this commitment by beginning a new phase of cooperation with this Council and the Court.

Before concluding my update on cooperation, it is appropriate to note that while my Office faces challenges in securing cooperation from a number of States, it does continue to benefit from the helpful cooperation of a number of other States in relation to the Darfur situation. For this, I express my sincere gratitude and look forward to continued collaboration.

To conclude, in Resolution 2340 issued in February of this year, this Council specifically called on the Government of Sudan to undertake “effective efforts to ensure accountability for violations and abuses of human rights and violations of international humanitarian law, by whomsoever perpetrated.”

Such efforts for accountability must surely include the full cooperation and assistance from Sudan to the Court. Such cooperation is specifically required by this Council’s Resolution 1593, which referred the Darfur situation to my Office.  Doing so will demonstrate in clear terms Sudan’s commitment to justice for the victims of Rome Statute crimes in Darfur – the country’s own citizens – and a recognition of their suffering.

I also respectfully ask for the renewed engagement of this Council with my Office, particularly in relation to the arrest and surrender of the Darfur suspects.  It is imperative that we work together to restore faith and renew hope that justice for the victims in Darfur will finally be realised.

Accountability is a pre-requisite for sustainable peace in Darfur. My Office continues to seek this accountability. I ask this Council to fully assume its responsibilities arising from Resolution 1593 and to support our efforts, in the interests of justice, stability and sustainable peace in Darfur.

Should this Council invest in accountability by adequately supporting my Office’s work in Darfur, it will surely reap its peace dividends.

Lest we forget; the olive branch of peace is barren without the trunk of blind justice.’

 

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