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

Mr President,

1.         Thank you for your invitation. Allow me to begin by congratulating you on assuming the Council's Presidency and wish you every success in steering the important work of this august body throughout the month of June.

Mr President, Your Excellencies,

2.         It is over thirteen years since the Council referred the situation in Darfur to the International Criminal Court and directed me to report to it every six months on actions taken and progress made pursuant to the Resolution. After thirteen years and twenty-seven reports, the victims of grave crimes which prompted this Council to refer the Darfur situation to the ICC are yet to see those alleged to be most responsible for such crimes face justice.

3.         The question begs asking: how many more years and how many more reports will be required for this Council to be galvanized into taking tangible action? How much longer should victims of the alleged atrocity crimes in Darfur suffer in silence or wait to have their torment acknowledged through concrete results?

4.         This Council has an important role to play in supporting the effective implementation of its own Resolution which referred the Darfur situation to the Court.

5.         In operative paragraph 2 of Resolution 1593, this Council decided that the Government of the Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor.

6.         Regrettably, the Government of the Sudan has not only refused to cooperate with the Court, in clear violation of the Council's Resolution, but has rather been emboldened to publicly denounce the Court in this forum.  It does so repeatedly with facile and baseless allegations aimed at creating a distraction from the real issues and the Government's failure to fulfil its responsibilities and obligations. 

7.         It is also regrettable that such intransigence has been presented in this Chamber where respectful discourse is to govern all interventions, focused on finding real solutions to the serious issues this august body is seized of. 

8.         The eyes of the world are upon us; the eyes of victims and victims' groups in Darfur, some of whom are present today, are upon us. They are owed at least this minimum decorum and they deserve not to have their ordeals undermined by rhetoric aimed at confusing the issues and distracting the Council's and the world's attention from what we are really concerned with here: the need to ensure there is accountability through the Court's independent judicial process for the serious and destabilising crimes under the Rome Statute committed in Darfur.

9.         Today, I also want to use this opportunity to reassure the victims in Darfur, my Office has neither forgotten nor abandoned them. Despite the many challenges we face, my Office continues to do all within its power and means to ensure that alleged perpetrators against whom ICC arrest warrants have been issued will face justice in Court.

10.       The ICC is a permanent judicial institution and it is here to stay. The evidence collected to date as part of our Darfur investigations, thanks to the assistance and commitment of victims and witnesses often at great risk, has persuaded the judges of the Court to issue warrants of arrest against five suspects. My Office continues to collect more evidence. Considerable progress has been made in this regard, thanks to the cooperation of a number of States and the sacrifices that many continue to make to help us solidify our cases towards the aim of being trial ready.

11.       What is required now is for this Council and the international community at large, to support the apprehension and transfer of ICC suspects to the Court so that they can answer the charges against them through a fair, independent and objective judicial process.

12.       Let me be clear: the effective power to arrest and surrender ICC suspects in the Darfur situation solely rests with States. This Council also plays a vital role in ensuring these obligations are honoured. 

13.       I once again urge the Council to take concrete action concerning States referred to it by the Court following failures by such States to arrest and surrender ICC suspects in the Darfur situation, while on their territory. I am encouraged by the efforts that a number of members of this Council, including permanent members, continue to make to break the impasse. These efforts include proposals for potential responses by the Council to the referrals it receives and public calls to States, including the Sudan, to cooperate with the Court to execute outstanding arrest warrants. This ongoing support for the work of the Office by individual members of this Council is greatly valued.

14.       As mentioned, there are today, five persons in the Darfur situation subject to outstanding warrants of arrest: officials of the Government of the Republic of the Sudan, Mr Omar Al Bashir, Mr Ahmad Harun and Mr Abdel Hussein, militia leader Mr Ali Kushayb and rebel leader Mr Abdallah Banda.  All are presently at large.

15.       These fugitives stand accused of multiple crimes against humanity and war crimes. These alleged atrocities include the widespread rape and sexual assault of women and girls, attacks on civilians and forcible expulsion from their homes, and detention, torture and summary executions of men detained by Janjaweed and the Sudanese Army. It is also alleged that in 2007, personnel of an African Union peacekeeping operation in Darfur were attacked and murdered at their Haskanita base by rebel forces under the command of Mr Banda. These are all serious crimes of great concern that must be addressed.

Mr President, Your Excellencies,

16.       Following this Council's referral, the Office's investigation and applications for warrants of arrest and the Pre-Trial Chambers' issuance of these warrants, there are now two main areas of focus in the Darfur situation: first, the Office's efforts to advance its investigations and second, the Court's collective efforts to secure the arrest and surrender of the suspects in the Darfur situation. The support of the Council is critical to each if we are to move the Darfur situation forward and achieve justice for the victims.

17.       In relation to the Office's ongoing investigations, during the reporting period, the efforts of my team of lawyers, investigators and analysts resulted in important advancements in the cases against the Darfur suspects. Additional witnesses have been interviewed and a significant number of leads developed.

18.       However, despite this progress, additional funding is required to allow the team to increase the pace and breadth of its investigations. For this reason, I must respectfully repeat my request to this Council to facilitate financial support from the United Nations for the Office's investigations in the Darfur situation, as is envisaged under article 115(b) of the Rome Statute.

19.       My report also makes clear that during the reporting period, the team's ongoing investigations benefited from the cooperation of over twenty States Parties. My Office is immensely grateful for this support.

20.       Regrettably, however, Sudan and a number of States Parties do not cooperate with my Office in the Darfur situation.  I therefore repeat my request to this Council to take steps to facilitate dialogue between my Office and the Government of the Sudan. I also repeat my invitation to the Government of the Sudan to constructively engage with my Office, including in particular, to discuss future investigative missions by the Office to Darfur.

Mr President, Your Excellencies,

21.       My report further provides an overview of the current ongoing litigation before the Court relating to States Parties that failed to arrest and surrender Mr Al Bashir while on their territory.

22.       In relation to the Republic of Uganda and the Republic of Chad, Pre-Trial Chamber II has initiated proceedings pursuant to article 87(7) of the Rome Statute in relation to the failures by these State Parties to arrest and surrender Mr Al Bashir during official visits on 14 November 2017 and 1-2 December 2017, respectively. Both Uganda and Chad were previously referred by Pre-Trial Chambers of the Court to this Council for past failures to arrest and surrender Mr Al Bashir: Uganda in 2016 and Chad in 2011 and 2013. No action in relation to these, or any other referrals by Pre-Trial Chambers to this Council, has been taken. This situation, I respectfully submit, is untenable and the Council must increasingly assume its responsibility to take appropriate action following a notification by the Court of non-compliant States.

23.       Proceedings are also ongoing regarding Jordan's failure to arrest and surrender Mr Al Bashir in March 2017.

24.       I must emphasise that the Pre-Trial Chambers of the Court have developed a body of jurisprudence that clarifies the obligations of States Parties under the Rome Statute. The Council will recall that Pre-Trial Chamber II of the Court made a decision in December 2017, to find the Hashemite Kingdom of Jordan in non-compliance with its obligation to arrest and surrender Mr Al Bashir during a visit on 29 March 2017, and to refer the matter to this Council and the Assembly of States Parties. This decision again made clear that Mr Al Bashir's official status did not justify a failure by a State Party to arrest and surrender a suspect subject to an ICC arrest warrant. Jordan appealed that decision and the Court's Appeals Chamber is now seized of the question.

25.       The Appeals Chamber has scheduled a hearing for 10, 11 and 12 September 2018. In advance of this hearing, on the basis that the legal issues in this appeal may have broader implications, the Appeals Chamber has invited relevant parties to make submissions that may assist its determination of the legal issues raised in Jordan's appeal.

26.       In response to an invitation by the Appeals Chamber to States Parties and professors of international law, the United Mexican States and 16 law professors were granted permission to submit legal observations.

27.       The Appeals Chamber has also invited the United Nations, the African Union, the European Union, the League of Arab States and the Organization of American States to submit observations on the legal issues in this appeal by the 16th of July.

28.       I am particularly encouraged by the fact that the African Union has recently notified the Appeals Chamber of its acceptance of this invitation to submit observations. The participation of the African Union in this process is very important, not least because, as the African Union observed in its notification to the Appeals Chamber, "Thirty–three of the 55 African Union Member States are also parties to the Rome Statute of the International Criminal Court."

29.       The issue of official immunities in relation to persons subject to ICC warrants of arrests was discussed at the African Union Summit in Addis Ababa on 28 and 29 January 2018. I am also aware that various follow-up initiatives are being considered by the African Union. In this context, I commend the African Union for taking this opportunity to constructively engage with the Appeals Chamber on this important issue.

30.       The Appeals Chamber has also invited the Sudan and Mr Al Bashir to file submissions on the merits of the legal questions raised in Jordan's appeal, by 16 July 2018. It is important for the Appeals Chamber to hear and consider the views of all interested parties before its final determination on this issue.

31.       All relevant stakeholders in this matter have the opportunity to express their viewpoint to the Appeals Chamber. I am hopeful that they will each do so, including this Council via the United Nations, and thereby participate in a process that will result in a final determination of this critical issue.

Mr President, Your Excellencies,

32.       My Office would be remiss not to recognize and appreciate the continued progress towards stability in Darfur. I commend the efforts of all those involved in the Darfur peace process, led by the African Union High-Level Implementation Panel and supported by the African Union-United Nations Hybrid Operation in Darfur.

33.       Despite this progress, as my report makes clear, intermittent violence in Darfur continued during the reporting period. A number of clashes were reported between forces of the Government of the Sudan and various rebel groups in the Jebel Marra area. In addition, there were reported attacks by Rapid Support Forces and militiamen during March and April on villages located in Jebel Marra. These clashes and attacks reportedly resulted in the creation of tens of thousands of additional internally displaced persons.

34.       My report notes the 1 February 2018 report from the United Nations Office for the Coordination of Humanitarian Affairs which stated that, according to the Government of the Sudan, there has been a substantial decrease in the overall number of internally displaced persons from Darfur and that hundreds of thousands are returning to their homes. I note that the OCHA indicated that it is verifying the numbers of returning internally displaced persons, and as stated in my last report, the Office echoes this Council's view expressed in its Resolution 2363 of 2017 that any return should be "safe, voluntary and in accordance with applicable international law."

Mr President, Your Excellencies,

35.       Sustainable peace and stability can only return to Darfur once the root causes of conflict are addressed. This includes ending impunity for alleged crimes under the Rome Statute in Darfur and ensuring accountability for the victims of these serious crimes.

36.       The collective efforts aimed at ensuring this accountability, which I have outlined in my report, will go on. My Office will continue to play its role, together with the other organs of the Court and the international community at large. I appeal to the courageous women and men who are victims of the past and on-going crimes in Darfur not to despair but to bear with us and continue to cooperate with our ongoing investigations.

37.       Today, I ask the Council, as the body that began the process of accountability for Rome Statute crimes in Darfur, to more actively play its part in these collective efforts. In particular, to show its support for my Office's investigations through facilitation of UN funding and also by taking steps to ensure that my Office obtains the cooperation it needs, including from the Sudan.

38.       Finally, I respectfully request this Council to provide its support to secure the arrest and surrender of the Darfur suspects. This is a pre-requisite to justice being done for the thousands of victims in the Darfur situation and a vital next step in the process that this Council started with its referral of the Darfur situation to my Office.

39.       In addition to falling short of adequately responding to the legitimate calls of victims for justice, the status quo will not only erode public confidence in the cause of international criminal justice in Darfur, but also in the Council itself. We must work together more effectively, within our respective mandates, to ensure full implementation and compliance with Resolution 1593.  With over a decade since this Council adopted that Resolution, it is past time that we did just that.  We must act collectively and with resolve. My Office remains firm in its commitment and a ready partner in that joint obligation.

40.       I thank you Mr President, Your Excellencies, for your attention.

Twenty-Seventh Report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UNSCR 1593 (2005)