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Court Unqualified to Deliver Justice, Says Sudan, Citing ‘Political Agenda’
Unless the impasse in Sudan’s Darfur region was broken, the five suspects indicted for grave crimes committed there would remain at large and impunity would encourage new crimes, the International Criminal Court’s Chief Prosecutor warned today as she delivered her twenty-fourth biannual briefing to the Security Council.
Prosecutor Fatou Bensouda said that Security Council resolution 1593 (2005), which had referred the Darfur situation to the Court, was intended to deliver justice for the victims, but those it had indicted continued to travel unimpeded, with some States parties to the Rome Statute failing to enforce its arrest warrants. South Africa had failed to arrest President Omar Hassan A. al-Bashir of Sudan during his visit there in June 2015, she recalled, noting also that States parties Uganda and Djibouti had been found in non-compliance after having failed to arrest the President during his visits to those countries. Given the failure to arrest the Darfur suspects, it was no surprise that new allegations of crimes continued to be reported.
Describing the Council’s own inaction as an aggravating factor, she said the open display of impunity undermined resolution 1593 (2005) and the Council’s credibility. One approach to mitigating the situation might be found in a recommendation by New Zealand, to the effect that, upon receiving a finding of non-compliance with the Court, the Council’s reaction should include a draft resolution or statement, a letter to, or a meeting with, the country concerned. The Council should also consider referring, in a separate resolution, to the Pre-trial Chamber’s 13 decisions finding non-compliance, as had been done in adopting resolution 2213 (2015) in the case of Libya.
Citing allegations that the Government of Sudan might have deployed chemical weapons, she said steps were being taken to verify whether that was true. However, it would be increasingly difficult for the Prosecutor’s Office to allocate the necessary resources to the Darfur investigation in the coming year, given the Court’s recently approved 2017 budget. She went on to note that she was forced to voice her concerns about the very same challenges on every occasion that she briefed the Council on Darfur. As long as there was no direct Council action to induce Sudan and other States to execute the Court’s arrest warrants, she said, it remained likely that she would be back next June, delivering the same message.
During the ensuing discussion, representatives of African countries, as well as their counterpart from China, emphasized the united African position regarding International Criminal Court activities. Egypt’s representative said that, while the African Union was committed to combating impunity, the Court should suspend measures against the President of Sudan. The regional bloc also urged the Council to withdraw its referral of Sudan to the Court, he added.
Angola’s representative noted with concern that a whole chapter of the Court’s report was based on allegations and reports from third sources, rather than on Court investigations. That could affect its credibility, he cautioned.
On the other hand, some countries called for greater implementation of Council resolutions on Sudan and Darfur, with France’s representative emphasizing that the reported use of chemical weapons should push the Council to greater determination in that respect.
Regarding alleged chemical weapons use, the Russian Federation’s representative stressed that the claim could not be verified without additional information, pointing out that it would have been impossible to keep such attacks quiet.
New Zealand’s representative encouraged Council members to take a more credible and consistent approach in response to future reports of non-compliance.
Sudan’s representative said the Court had been transformed into a monitoring mission with a political agenda in Darfur, as opposed to a judicial body, emphasizing that it was not qualified to achieve any sort of justice. Dismissing as fabrications, allegations of chemical weapons use by the Government of Sudan, he pointed out that the Organisation for the Prohibition of Chemical Weapons (OPCW) had renewed his country’s membership of its Executive Council for another two years.
Also speaking today were representatives of the United Kingdom, Ukraine, Uruguay, Malaysia, Japan, Venezuela, United States, Senegal and Spain.
The meeting began at 10:19 a.m. and ended at 11:57 a.m.
FATOU BENSOUDA, Chief Prosecutor of the International Criminal Court, delivered the judicial organ’s twenty-fourth biannual report, saying that it was with “immense regret” that she again acknowledged that five suspects in the Darfur situation remained at large. Noting that the serious crimes committed in Darfur constituted some of the world’s most serious, she explained that she was referring to them because it was critical that the Security Council not lose sight of the ultimate purpose of the Court’s half-yearly briefings. They were intended to provide opportunities for dialogue with the Office of the Prosecutor and the Council on how to achieve the objectives of resolution 1593 (2005), she said. That resolution was intended to deliver justice for the victims, but fugitives indicted by the International Criminal Court continued to travel unimpeded, with some States parties to the Rome Statute failing to enforce its arrest warrants.
Describing the Council’s own inaction as an aggravating factor, she said the open display of impunity undermined resolution 1593 (2005), as well as the Council’s credibility. South Africa had failed to arrest President Omer al-Bashir during his visit there in June 2015, she recalled, noting also that States parties Uganda and Djibouti had been found in non-compliance after having failed to arrest President Bashir during his visits to those countries. The Council ought to consider referring, in a separate resolution, to the Pre-trial Chamber’s 13 decisions finding non-compliance, as had been done in adopting resolution 2213 (2015) in the case of Libya, she said.
The Council, she continued, should also consider New Zealand’s recommendation that when a finding of non-compliance was received, the Council’s reactions ought to include a draft resolution or statement, a letter to, or a meeting with, the country concerned. Given the failure to arrest the Darfur suspects, it was no surprise that new allegations of crimes continued to be reported. She cited a number of attacks as well as allegations that the Government of Sudan might have deployed chemical weapons, saying her Office was taking steps to verify whether that was true. As for the issue of resources, she said it would be increasingly difficult for her Office to allocate the necessary resources to the Darfur investigation in the coming year given the Court’s recently approved 2017 budget.
She went on to point out that she was forced to voice her concerns about the very same challenges on every occasion that she briefed the Council on Darfur. And as long as the Council did not take direct action to induce Sudan and other States to execute the Court’s arrest warrants, it remained likely that she would be back next June delivering the same message. Emphasizing that such a lack of progress could not be allowed to continue, she asked the Council to “give new life to your resolution 1593 (2005)” and break the current impasse for the sake of the victims in Darfur. Effective Security Council follow-through on the Darfur situation was the litmus test of its ability to fulfil that promise, she stressed.
HELEN MULVEIN (United Kingdom) called on all parties to stop violence and human rights abuses against civilians. The United Kingdom was deeply concerned by the humanitarian situation in Darfur, she said, urging the Government of Sudan to allow access to all parts of the region, which would also enable the Prosecutor to carry out her investigations. She also called on the Government to meet its obligations under resolution 1593 (2005) and to execute all arrest warrants. The Council should play a more active role in demanding compliance and address instances of non-cooperation with the Court, she emphasized.
AMR ABDELLATIF ABOULATTA (Egypt) noted that the Prosecutor had voiced two requests to the Council: facilitate financial support for investigations on Darfur, and ensure that justice was meted out to a number of accused people. The united African position regarding the International Criminal Court’s activities on the continent, he said, emphasizing that, while the African Union was committed to combating impunity, the Court should suspend measures against the President of Sudan. The regional bloc also urged the Council to withdraw its referral of Sudan to the Court. He noted with concern that the Council had not met the African Union’s calls in that regard for some years. The Court should not take any measures that would affect the peace, security, sovereignty and territorial integrity of African countries, he said, while stressing that they rejected any measures against them owing to their non-compliance or non-cooperation by not arresting President Bashir.
GERARD VAN BOHEMEN (New Zealand) said the Council must remain vigilant in avoiding any perceptions that it was using Court referrals as a political tool, particularly in conflict situations. Such actions risked politicizing the Court and could prolong conflicts and the process of seeking accountability. Expressing regret over the lack of progress in Darfur, he said civilians continued to suffer, including from reported chemical-weapon attacks. While resolution 1593 (2005) required the Government of Sudan to cooperate fully with the Court, those obligations were largely being ignored. The Council should discuss the findings of non-cooperation, with a view to determining the tools needed for the most appropriate response, including such options as adopting a resolution, dispatching a letter or convening a meeting. He also encouraged Council members to take a more credible and consistent approach in response to future reports of non-compliance.
VOLODYMYR YELCHENKO (Ukraine) noted that gender-based violence continued to take place in Darfur, as signalled by the Secretary-General’s report. That warranted the Security Council’s special attention. States had failed to arrest persons sought by the Court, despite the fact that the Rome Statute applied to all such persons without distinction. A member of Government or Parliament should in no case be exempt from criminal responsibility. Resolution 1593 (2005) contained a requirement for Sudan to provide assistance to the Court, he noted, calling on that country’s Government to assist the Court and its Prosecutor. All Member States should consolidate their efforts to prevent the grave crimes occurring in Darfur, he emphasized, warning that the international community’s failure to bring those responsible for human rights abuses to justice could stimulate further violence around the world.
SHEN BO (China) said the situation in Darfur was “on hold”, and required an integrated solution. Thanks to the African Union High-Level Implementation Panel, the Justice and Equality Movement had signed a road-map agreement, and the international community’s priority now was to provide support, he said, adding that it should embrace a fair position and play a constructive role in any settlement. China’s position on handling the International Criminal Court remained unchanged, he said, adding that it supported the concerns of the African Union and the Government of Sudan. All such legitimate concerns should be adequately heeded, he stressed.
LUIS BERMÚDEZ (Uruguay) noted that the situation in Darfur had been stalemated since June, and expressed astonishment at the lack of cooperation on the part of States parties to the Rome Statute. Noting that resolution 1593 (2005) established that the Government of Sudan must cooperate fully with the Court, he said it called on other countries in the region to cooperate, as well. The Council must address cases of non-cooperation and ensure compliance with arrest warrants, he emphasized, while voicing support for New Zealand’s proposals.
ALEXIS LAMEK (France) said combating impunity was as necessary as ever, emphasizing that the reported use of chemical weapons should push the Council to greater determination in implementing its own resolutions. France regretted that no arrest warrants had been executed. Stressing the need to ensure the protection of civilians, he said the prime responsibility for that rested with the Government of Sudan. It must grant humanitarian access and bring perpetrators of crimes to justice, he also underlined that the onus was on Sudan to execute arrest warrants and cooperate with the Court. States parties also had a role to play when those subject to arrest warrants were on their respective territories. Regrettably, that had not happened, he noted, adding that the Council had a clear responsibility to address non-cooperation with the Court in an effective way.
SITI HAJJAR ADNIN (Malaysia), noting that attacks on civilians, including sexual and gender-based crimes, continued unabated, said dialogue was the only way to resolve the situation. Welcoming the signing of the road-map agreement by the Government of Sudan and several other parties, she urged them all to intensify efforts to reach a cessation of hostilities and to work for a final settlement of the conflict. It was incumbent upon the Government to create an enabling environment in which trust and confidence could be built, she said, emphasizing that compliance with resolution 1593 (2005) was the necessary prerequisite to that end.
TAKESHI AKAHORI (Japan) said justice had not been achieved for victims in Darfur, despite the International Criminal Court’s efforts. Despite having carried out investigations, the Court could not fulfil its mandate without States’ cooperation. Resolution 1593 (2005) had referred the situation to the Court and required the full cooperation of the Government of Sudan and other parties, he said, urging its full implementation. Progress in the political process would be essential to bring stability to Darfur and justice to the victims, he said. While regretting that ceasefire negotiations had yet to be concluded, he welcomed the cessation of hostilities between the Government of Sudan and armed opposition groups. That ceasefire must be closely monitored, especially at the onset of the dry season.
HENRY ALFREDO SUÁREZ MORENO (Venezuela) said his delegation shared the Prosecutor’s concern about the sexual and gender-related violence which made it difficult to strengthen the rule of law. Those who had violated international humanitarian law and human rights law in Darfur must be brought to justice, he emphasized. It would be useful to encourage effective dialogue between the International Criminal Court and the African Union, which must complement regional initiatives to fight impunity. However, the Court must work in a balanced fashion, he said, adding that attempts to politicize the Darfur situations were concerning. Stressing that attempts to bring the President of Sudan to justice were under that country’s jurisdiction, he called upon the Court to suspend its actions and for the competent authorities to cooperate effectively with the Court.
ISOBEL COLEMAN (United States), noting that President Bashir and others continued to be welcomed by certain Member States, said justice could succeed if the international community persevered and supported institutions. It was heartening that some States were refusing to welcome individuals subject to International Criminal Court arrest warrants. There was a path forward to a peaceful future in Sudan, she said, welcoming the reduced fighting in parts of Darfur, and emphasizing that the African Union-United Nations Hybrid Operation in Darfur (UNAMID) must have access throughout Darfur. Emphasizing that accountability was essential in building adherence to the rule of law, she said justice could break the cycle of impunity. Now was the time for all to recommit to justice, she added.
JOÃO IAMBENO GIMOLIECA (Angola) said that, as a member of the African Union, his country reiterated its commitment to the fight against impunity, and aligned itself with the African Unions Summit’s decision on the International Criminal Court, adopted in Kigali in July. While welcoming the activities of the Office of the Prosecutor, he noted with concern that a whole chapter of the Court’s report was based on allegations and reports from third sources, rather than on Court investigations. That could affect its credibility, he cautioned. Angola would uphold the African Union position on the issue while advocating dialogue in Darfur, in Sudan and all over the world.
EVGENY ZAGAYNOV (Russian Federation) said he had been taken aback by the call for the Council to follow up on the situation reported by the Prosecutor, noting that, even among States parties to the Rome Statute, there was no unity on executing arrest warrants and that State officials enjoyed impunity. The Court and certain States preferred to exert pressure on countries instead of taking their concerns into account, he said, describing the fact that some African countries were leaving the Court as understandable. Noting that the Chief Prosecutor and certain States parties had been the main initiators of Sudan’s referral, he said that shifting the financial burden to the United Nations was therefore unjustified. Although serious crimes continued, including the use of child soldiers by armed group, the Court’s report placed a one-sided emphasis on attacks by Government forces, he said. That would not enhance the Court’s standing. Additionally, the claim of chemical weapons use could not be verified without additional information, he said, pointing out that if they had been used, it would have been impossible to keep it quiet. He reiterated the importance of finding a balance between ensuring justice and realizing peace and stability.
GORGUI CISS (Senegal) emphasized that peace and justice were not incompatible, but they went hand in hand. Attacks on civilians, including sexual and gender-based crimes, continued in alarming proportions, he noted, calling on all stakeholders to take the necessary steps to ensure that perpetrators were brought to justice. Emphasizing that the Office of the Prosecutor could not fulfil its mandate without sufficient financial means, he said it was the Council’s duty to ensure financial contributions in cases that it referred to the Court. A permanent settlement of the Darfur situation must involve all parties, and the role of justice could not be ignored in any final settlement, he stressed.
ROMÁN OYARZUN MARCHESI (Spain), Council President for December, spoke in his national capacity, saying that the United Nations Charter had established that Council decisions were mandatory for all Member States. However, that did not seem to apply in Darfur, he noted, calling upon the Government of Sudan to cooperate with the Court and reminding States parties of their obligations in that regard. The situation in Darfur was far from satisfactory. Consistent violations of international humanitarian law and obstacles to humanitarian access were unacceptable, he stressed, calling upon all parties concerned to join the peace process, and reminding the Government of its obligations to protect civilians. Peace would not be possible unless there was justice, he added.
OMER DAHAB FADL MOHAMED (Sudan) noted that the Prosecutor’s reports had repeatedly demonstrated an inclination to address the President of Sudan in an inappropriate and derogatory manner, and described the International Criminal Court as completely disoriented and plagued by institutional failure and corruption. Guided by the principles of peace and justice, the Government of Sudan had established a special tribunal for the prosecution of crimes committed in Darfur, and had provided the Security Council with statistics on its achievements. Contrary to those arrangements, the Office of the Prosecutor had issued policy papers that gave a political interpretation to Article 53 of the Rome Statute. Describing such attempts as dangerous, he said that they gave the Prosecutor discretionary political power to abolish peace initiatives and agreements.
“The report presented to you contains many examples of inconsistency, contradictions and unworthiness,” he continued, adding that the Court had become an adversary and judge at the same time. The Court had been transformed into a monitoring mission with a political agenda in Darfur, as opposed to a judicial body, he said. Furthermore, it had refused to refer to the Assembly of States Parties the case of Luis Moreno Ocampo, its first Chief Prosecutor, who was alleged to have committed rape in 2006. Decrying politicization of the Court, he said it was not qualified to achieve any sort of justice. In fact, it had only ruled on four cases in 14 years, rejecting more than 9,000 other complaints, he noted.
He went on to point out that the Court had hailed Amnesty International’s report alleging the use of chemical weapons by the Government of Sudan. Describing such allegations as fabrications, he stressed that the Organisation for the Prohibition of Chemical Weapons (OPCW) had renewed his country’s membership of its Executive Council for another two years. Sudan could not trust the International Criminal Court to combat impunity given that the exceptions present in the Rome Statute were not implemented in cases involving nationals of developing States. Additionally, half of the Court’s budget came from voluntary contributions by States and non-governmental organizations, which could exercise control over it. The Court’s policy papers and practices since 2002 had driven a wedge between the principles of justice and peace, and had suspended one of the fundamental principles of international humanitarian law relating to internal conflicts, he said.