Déclaration: 9 juin 2021

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

ICC Prosecutor Fatou Bensouda presents her Office’s 33rd report on the Situation in Darfur, Sudan to the UN Security Council remotely through VTC ©ICC-CPI<br>

9 June 2021

Mr President, Your Excellencies,

1. Allow me at the outset to congratulate Estonia for holding the Presidency of the United Nations ("UN") Security Council during the month of June and wish you continued success in chairing the crucial work of this august body.

Mr President, Your Excellencies,

2. This is my final briefing before the Council in my capacity as the Prosecutor of the International Criminal Court ("ICC" or the "Court").

3. It has been an honour and a privilege to serve in that capacity and to work with you over the years. Notwithstanding the challenges, together we have forged ahead as we carried out our respective mutually reinforcing but independent mandates in the pursuit of accountability for atrocity crimes, peace and security.

4. The Situation in Darfur is a clear demonstration of how the framers of the Rome Statute system envisaged the ICC and this Council to work together towards the twin goals of justice and peace. When this Council referred the Darfur situation to the ICC in March 2005, it brought hope to victims of atrocity crimes in Darfur by sending a clear message that justice was not only important in its own right but also with a multiplier effect on achieving sustainable peace in Darfur.

5. Over the years since the referral, that hope has seen its ups and downs, but the people of Darfur never gave up. I recall the countless times that I appealed for help from this Council for investigations in Darfur; I recall the number of times that I pleaded with the Assembly of States Parties to allocate sufficient resources to effectively investigate the Situation in Darfur; I can recall the number of times that the Office and I were ridiculed and labelled as biased and that our investigations were targeted to specific individuals.

6. There were many who metaphorically told us that we should stop banging our heads against the wall and that we should forget about Darfur and move on. Indeed, as I give this last briefing on Darfur, I am reminded of calls for mass withdrawal from certain quarters or threats to the very existence of the only institution that promised hope to Darfur victims and so many others.

7. Yet, with the support of many of you, and civil society, we stood firm and resolute and held to our conviction that our actions and decisions in Darfur and indeed everywhere else, were guided by nothing but the law, the facts and the search for truth and justice in strict adherence to the cardinal principles of independence, impartiality and fairness. We found strength in the plight of victims, and courage in the truth of our convictions and the righteousness of our cause.

8. Through it all, Darfur victims never gave up hope, they stood shoulder to shoulder with the Office and urged us on, providing critical evidence even as we investigated Darfur without being able to go to Darfur. They rallied behind us during our briefings, attentively following and clinging to every word that gave them a glimmer of hope that they too may one day benefit from the protective embrace of the law and justice duly administered for the wrongs they have endured.

9. Today, as I bid you farewell, I salute the women, men, children and all Darfur victims for their courage, patience, resilience, perseverance and unrelenting belief in the course of justice. My heartfelt thanks go to them for their support even in the face of great adversity. I stand here today in solidarity with them.

Mr President, Your Excellencies,

10. The developments in Sudan amply demonstrate that the arm of justice is long and patient; that justice may be delayed by those who stand in its way, but justice has more durability than politics of a few whose aim is to shield culpability. Justice and the voice of the people and the wronged ultimately prevail.

11. My historic visit to Darfur last week opened my eyes even more to the reality of what we and the people of Darfur have been fighting for over the years. Indeed, the visit was a vivid reminder of the raison d'être of this institution; the ICC which I have had the privilege to serve with honour, dedication, and integrity for almost two decades. Witnessing countless women, men and children lined up in the dusty streets, in the blazing hot sun, to welcome me and my delegation, calling for justice and the surrender of those indicted by the ICC was one of the most moving and humbling experience of my life. The images of this visit will remain written in indelible ink in my memories. For those who saw these images, I hope they serve as a strong reminder that we should stay focussed on achieving justice for the victims and finding lasting peace for the people of Darfur.

12. The reality of Darfur victims hit me even harder as I engaged with victims, internally displaced persons' ("IDPs") leaders and local officials and listened to victims' harrowing stories of the brutality they have endured and the inhumane conditions under which they continue to live. This first ever visit of the ICC to Darfur in more than 15 years since this Council referred the Darfur situation to my Office has rekindled the hope of Resolution 1593. We cannot allow that rekindled light to be extinguished again through our inaction or half-hearted, ineffective action.

13. The simple things in life that we take for granted are what the Darfur victims continue to yearn for: peace, security, food, water, health, education for their children and return to their homes. They want an end to the deadly violence and the disarmament of militias and compensation for their long years of sufferings. The withdrawal of the United Nations-African Union Hybrid Operation in Darfur seems to have created a vacuum that still needs to be filled.

14. Addressing these issues will not only require restoration of trust between government authorities at all levels and the people of Darfur but also resolution of the root causes of the issues that have bedevilled the region over the years as well as the support of the international community.

15. Darfur victims continue to have hope in us. We must heed their clarion call for the surrender of those wanted by the ICC to face independent, impartial and fair judicial process that respects all their rights much as the alleged perpetrators themselves denied rights to the people of Darfur over the years.

Mr President, Your Excellencies,

16. I am pleased to report that the ICC and the Government of Sudan have turned a new page in their relationship. The old days of hostilities and non-cooperation have been replaced by constructive dialogue and good spirit of cooperation. Following the conclusion of a Memorandum of Understanding between my Office and the Government of Sudan on 14 February, my team of investigators have undertaken investigative activities in Sudan and have begun to prepare to go to Darfur soon. They have constructively engaged with relevant government ministries including the Office of the Attorney General.

17. My recent visit to Darfur would not have been possible without the assistance and cooperation of the Government of Sudan, including various ministries and local governors. I am grateful for all the support extended to me and my delegation and the effective facilitation of my visit.

18. I would also be remiss if I failed to acknowledge the timely and effective operational and logistical support provided by the UN through its different entities and agencies. Their support was crucial to the success of the mission. Without this necessary support, it would not have been possible for me and my delegation to travel to different regions of Darfur and directly engage with victims.

19. I am confident that the authorities, the UN and its entities will continue to extend the same excellent cooperation and support to my successor as the Office expands its investigations on the ground in Darfur.

Mr President, Your Excellencies,

20. Even as we applaud the new era of Sudan, we are reminded that the road ahead remains long and fraught with dangers. We are all aware that the transition in Sudan is still in its infancy and needs nurturing to mature. We can thus not be lulled into a false sense of security. Today, peace and justice continues to elude the people of Darfur. They continue to suffer in IDP camps and for them accountability remains critical for lasting peace in the Darfur region.

21. The clear and consistent message I received from Darfur victims in El Fasher, Nyala and Zalingei is that the four outstanding warrants must be executed and that suspects must be handed over to the ICC. I have communicated and stressed this message in my interactions with the Government of Sudan officials at all levels including with the Chairperson of the Sovereignty Council, the Prime Minister as well as other members of the Sovereignty Council during my visit.

22. In particular, I have stressed the urgent need for Mr Harun to be transferred to ICC custody as a matter of priority. In this regard, I have recalled that both Mr Ali Muhammad Ali Abd-Al-Rahman, also known as "Ali Kushayb" and Mr Ahmad Muhammad Harun were jointly charged with many of the same crimes in respect of the underlying incidents and that their cases were separated because Mr Abd-Al-Rahman voluntarily surrendered himself to the ICC. Even though Mr Abd-Al-Rahman's confirmation of charges hearing took place from 24 to 26 May, there is still a window of opportunity to re-join the cases at trial if Mr Harun is surrendered to the ICC now. In addition to ensuring efficiencies and judicial economy, re-joining the cases at trial would obviate re-traumatisation of witnesses who would have to be called twice to testify before the Court.

23. Sudan is under a legal obligation to surrender the suspects pursuant to Resolution 1593. The Juba Peace Agreement is also clear that all suspects must appear before the ICC and that Sudan should fully cooperate with the Court in its investigation and prosecution of these suspects.

24. Sudan has to tangibly demonstrate that the new Sudan is now a fully-fledged member of the international community that has joined the fight against impunity and is fully committed to justice and the rule of law.

25. Almost all the suspects are in the custody of the Government of Sudan and there is no legal impediment to their surrender to the ICC. In particular credible reports and other information indicate that Mr Harun has expressed his wish to be transferred to the Court. I appeal to this Council to prevail upon Sudan to immediately honour Mr Harun's wish and facilitate his transfer to the ICC without delay.

26. Mr Abdallah Banda Abakaer Nourain, for his part, is a fugitive from the Court and his exact whereabouts are unknown. I call on him to surrender immediately to the ICC.

27. Additionally, Sudan has to fully cooperate with the Office's investigations, including through providing unhindered access to its territory; access to relevant records, information and materials as well as protection of witnesses.

Mr President, Your Excellencies,

28. The Council may also benefit from knowing that my meetings with the Walis or Governors of the three States I visited were very productive. The authorities described the consequences of the conflict in Darfur on the communities and the fragility of the social fabric, acknowledged the ongoing suffering of their people and recognised the importance of justice and accountability. They all pledged to cooperate and support the Office as well as the Court in pursuit of justice for the people of Darfur. Affected communities were urged to trust and fully engage with investigators who will be travelling to Darfur in the near future and to report any incidents of threats or intimidation.

29. The visit to Darfur also provided a unique opportunity to manage victims' expectations, and explain what the ICC is capable of, what it does and what it cannot do. More work remains to be done in this regard and the Office will coordinate with the Registry Outreach Section to devise strategies on how best to reach out to the affected communities and explain the work of the Court.

Mr President, Your Excellencies,

30. Let me highlight some of the significant developments regarding the Darfur situation.

31. Exactly one year ago today, Mr Abd-Al-Rahman, "Ali Kushayb", was transferred to the custody of the Court, in the midst of a global pandemic, no less. On the anniversary of this occasion, Mr Abd-Al-Rahman's surrender continues to serve as a reminder that the Office will not be deterred from its mission to bring the alleged perpetrators of atrocity crimes to justice.

32. Between 24 and 26 May 2021, Pre-Trial Chamber II convened the confirmation of charges hearing for Mr Abd-Al-Rahman. During this hearing, the Office presented evidence in order to demonstrate that there are substantial grounds to believe that Mr Abd-Al-Rahman was responsible for all 31 counts charged in relation to crimes alleged to have been committed in Kodoom, Bindisi, Mukjar, Deleig and surrounding areas between August 2003 and March 2004.

33. Having worked on this Situation since 2005, it was gratifying for me personally, for my team and above all, for Darfur victims, to finally see one of the Darfur suspects in the dock to answer for his alleged crimes. I extend my gratitude to the Darfur team for making this happen despite severe resource constraints and COVID-19 restrictions.

Mr President, Your Excellencies,

34. It is worth noting that regrettably, the security situation in some areas of Darfur remains volatile as also further confirmed by accounts of families of victims I engaged with during my visit to Darfur. Tribal fighting and armed clashes between government forces and armed rebel groups have continued to contribute to large-scale displacements and deaths.

35. I have been particularly dismayed by reports indicating an increase in incidents of sexual and gender-based violence against women and girls, especially IDP.

36. We should all denounce these despicable crimes and remind the competent Sudanese authorities of their primary obligation to investigate and prosecute such acts. Justice and accountability in Sudan, including Darfur, cannot be achieved without maintaining security and stability for vulnerable communities. The violence against IDPs and in particular women, girls and children must stop.

37. I call on the Members of the Council and other regional partners to continue to do everything within their power to help Sudan break this troubling cycle of violence.

Mr President, Your Excellencies,

38. Over the past months as the Office intensified its efforts to constructively engage with the Government of Sudan, we have received and relied upon the invaluable support of many European countries through their Embassies in Khartoum, some of which are present in this Council today. We are most grateful for this assistance.

39. Both States Parties and non-States Parties in and outside this Council have also been instrumental in assisting and contributing to our efforts to build relations with Sudan. All this help is appreciated and I trust that it will continue to be extended to the Office and my successor.

40. The successes we have recorded so far would also not have been possible without the support of our civil society partners with whom we have collaborated over the years for which the Office is thankful.

Mr President, Your Excellencies,

41. On my own behalf, on behalf of the Darfur team and on behalf of the rest of the Office that I have been privileged to lead for the past nine years, thank you all for your contributions to the work of the ICC. I am honoured to have been able to address the Council these past nine years in my capacity as Prosecutor.

42. Time has now come for me to hand over the baton to my successor, Mr Karim Khan under whose capable leadership I believe the team and the Office will continue to progressively advance the cause of justice for Darfur victims and beyond. Your support to him and the Office will continue to be critical for the success of the Court as he navigates the challenging mandate of the Rome Statute during these trying times of COVID-19 and the ever increasing disparity between the high workload of the Office which is not matched by the existing allocation of resources.

43. I conclude my last report to the Security Council by returning to and once again paying homage to the paramount interest of the victims in Darfur, many of whom I met this past week, in continuing to have faith in the Office as it finally took a small but important step towards achieving justice for the crimes committed against them.

44. The referral of the Darfur situation to the Office in 2005, the first of its kind, was a landmark development in the fight to end impunity for perpetrators of atrocity crimes.

45. At the time of the referral, this Council emphasised the need for the international community to promote healing and reconciliation by encouraging the creation of institutions and commissions, involving all sectors of the Sudanese society, to complement judicial processes. To that end, the support of all UN Member States in restoring and maintaining lasting peace in Sudan, by promoting the rule of law and protecting human rights, remains as important today as it was 16 years ago.

ICC Prosecutor Fatou Bensouda presents her Office’s 33rd report on the Situation in Darfur, Sudan to the UN Security Council remotely through VTC ©ICC-CPI

46. I trust that the recent progress that has been made in the Darfur situation, after so many years of shattered promises and disappointment, will serve as a beacon of hope to the victims of atrocity crimes in other situation countries, as well. Though the journey towards justice may be long, and the path uncertain, I remain confident that the Office will never waver in its dedication to investigating and prosecuting these crimes without fear or favour, as it must. I hope and count on your crucial support as my Office and the ICC discharge their crucial mandates.

47. I often state that the creation of the ICC must surely be one of humanity's proudest moments. It is, because it represents an awakening rooted in great human suffering throughout the ages, culminating in the recognition that lawless wars and conflict must no longer receive a pass to cause human carnage.

48. Let us remain principled, vigilant and consistent in the service of the Rome Statute and the founding principles of the UN Charter. I am grateful as always for your support and for this opportunity.

49. I thank you, Mr President, and I yield the floor.

ICC Prosecutor Fatou Bensouda presents her Office’s 33rd report on the Situation in Darfur, Sudan to the UN Security Council remotely through VTC ©ICC-CPI

Addendum | Prosecutor Fatou Bensouda's brief statement at the conclusion of her last briefing before the United Nations Security Council pursuant to UNSCR 1593 (2005)

Mr President,

1. Thank you for so graciously giving me the floor again.

2. As Prosecutor, I am not accustomed to having the last word, but I appreciate the kind gesture in this being my last Council briefing.

3. I do not want wish to impose on the precious time of this Council and the taxing schedules of the distinguished representatives present here, but I would be remiss if I did not take the floor only to briefly express my sincere gratitude for your support once again, and for your kind words bidding farewell and recognising my work and the work of my able team at the Office in the past nine years.

4. It has certainly not been easy, but with your support, we have stayed the course and have tried to bring to life the goals and values of the Rome Statute.

5. I have indeed come to the end of my mandate with the Court and as the saying goes, "I gave it my best shot", empowered by my dedicated team across my Office. I seize the opportunity to salute them here.

6. Where I may have fallen short, I can assure you, it was not for lack of trying.

7. The work of the Office on behalf of international justice, and by extension, sustainable peace, will continue without pause.

8. Led by my sense of duty and pragmatic idealism, I truly believe that together, with the support of the international community and this august body, a more secure and just future for all is attainable. It merely takes the trinity of courage, leadership and genuine conviction in higher ideals.

9. I cannot underscore enough the important role of this Council in the fight against impunity for atrocity crimes in close cooperation with the ICC. I can only encourage continued engagement and cooperation between two institutions so crucial to a rules-based international system and the cause of peaceful settlement of disputes.

10. I wish you continued success with this critical mission and this honourable duty, Mr President, Your Excellencies. Thank you. |

Thirty-third report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to 1593 (2005)

Source: Bureau du Procureur | Contact: [email protected]