Statement of ICC Prosecutor, Karim A. A. Khan KC, to the United Nations Security Council on the Situation in Darfur, pursuant to Resolution 1593 (2005)

Mr. President, distinguished members of the Security Council, it is a great pleasure to have the opportunity to brief you once again on the situation in Darfur. I also want to express my personal thanks to Ambassador Idriss Al-Harith – the permanent representative of Sudan – for his appearance today, and I had the pleasure, Mr. President, of sitting with him yesterday, and having certain discussions in advance of today's briefing.

In my last briefing to the Council a few months ago, which I gave from Khartoum for the first time, I was quite candid regarding the expectations and the hopes of the people of Sudan. I identified their craving, their yearning for justice and mapped out a course that hopefully would help us as an Office and the international community to discharge our responsibilities to them. We have tried to discharge those responsibilities by ever more focused investigations with deliberate and considered action so we can properly deserve the trust that the people of Darfur so generously express every time you meet them in Sudan or anywhere else around the world for that matter.

And to deliver on that promise, I set out in the last report new benchmarks that would help identify where we are and where we are going in terms of delivering on Resolution 1593.

We have – I am pleased to report – made significant strides forward, and that can be measured not by rhetoric or simple words, but by quantifiable indicators in terms of the number of witnesses that have been heard, the testimony that has been given by heroic survivors, and by witnesses who have had the opportunity of coming before the Court to give their accounts.

The trial of Mr. Abd-Al-Rahman – also known as Mr. Ali Kushayb – has made swift progress indeed over the last eight months since the trial opened. Over 78 sitting days, 50 witnesses have been heard before the International Criminal Court, and a lot of documentary evidence, of course. Their testimony has brought to life the harrowing accounts endured by victims and survivors that compelled you this august Council, to refer the matter to the International Criminal Court almost 20 years ago.

These witnesses have had the opportunity to confront the accused; to have their accounts tested before independent, impartial judges, creating a record that will pave the way at the end of the process for a determination to be made on what took place and whether the accused is responsible. And I cannot tire, Mr. President, from commending the heroism, the perseverance, the dedication of the survivors that have testified in this particular case. Their courage and their perseverance really against all odds is something that I find truly humbling. And that is something we see about victims in so many parts of the world. Somehow, despite what they have endured, they really do represent the very best of us, the triumph of hope in the face of their awful experiences, their wretched experiences. It is something that we should take to heart and not take as something without value, or without impact. The accounts provided reflect human experiences of people that could be our mothers and our fathers, our brothers and our sisters or our children. Profound, in fact, the most profound suffering: the loss of family members, the loss of school friends, displacement from homes, the disruption in children's education, and the extremely challenging, extremely difficult years, not months, years, decades, that they have endured either in their own land, in refugee camps as internally displaced people, or in neighbouring countries, or around the world where they have sought refuge because of what was inflicted upon them in Sudan.

And the Court, Mr. President, has also heard about the stigma experienced by victims of sexual and gender-based violence, and indeed those of the children that were the result of that. But in the midst of these truly chilling accounts, it is remarkable that hope has not been extinguished. In their accounts, there is hope that has been heard from the mouths of witnesses. And an example of that, if I may, I will present to the Court and it is in our report. But I think the most eloquent testimony is from those who have experienced the loss I have described. So quoting from the Court transcript, one witness says, and I quote: “We need to know their stories. We need to know what they say about who killed their family members, who displaced them, who took away their belongings, who seized their cattle. Not a single person, not even a hundred can describe it enough. We have to show the victims that there is justice in the world.”

And, Mr. President, it is this prayer, it is this hope, it is this imperative that compelled the Council to refer the matter to the Court. It was not an exercise of politics; it was an exercise of humanity, in my respectful view, as well as a legal obligation to discharge the Council's obligations under the Charter. And I am delighted to say that the trial is making swift progress and the prosecution intends to close its case by the end of next month.

As reflected in the report, this therefore makes the pace of the trial the most efficient since the establishment of the Court. And that has been achieved by targeted presentation of evidence, by agreements between the prosecution and the defence wherever possible, by – and I think it is only right to give that acknowledgement – by excellent trial management by the independent judges of the International Criminal Court, and by the diligent work of the men and women of the Registry who often are invisible, but they deal with witness issues with bringing witnesses to the Court, with the Court proceedings, the interpreters, the translators, and the stenographers. So, I do think that already before the trial is concluded, there is much to be proud of and indeed much to be emulated by the organs of the Court, by the legal representatives of the victims and by the defence in other cases.

Five months since my last visit to Darfur, I believe a fair assessment compels to the conclusion that the Office I have the honour to lead has made really sincere efforts to keep the promises I made to the communities I had the honour to look in the face, to listen to, and engage with. And by the cumulative measures, the focused deployment of additional resources, by the attempt to get more information, I think we have tried to bring back to The Hague, to the activities of my Office, the urgency that we felt so keenly in the camps of those displaced in Darfur.

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But, Mr. President, there remains a key part, an essential part, of our collective work that must be addressed. As reflected in the report, and as is patently obvious, of course, cooperation from the Government of Sudan is critically important if we are to meet the needs of the people of Darfur. And the unfortunate truth – and it brings me no pleasure at all to say it – is that the Government of Sudan is not meeting the requirements of cooperation set out by this Council under Chapter 7 of the Charter in Resolution 1593 all those years ago in 2005.

Many important promises, many promises, signed cooperation agreements, undertakings from the most senior officials of the country, made to my face in my last visit, signed in memoranda of understanding, have not been honoured. And indeed it is my unfortunate duty to say that cooperation has deteriorated, not improved, since my last briefing. My report attempts to fairly and accurately set out the unfortunate gap that exists between the words and the action of the Government of Sudan. Despite commitments made during my visit to Sudan, access to the country has become more difficult. New administrative hurdles have been created and Sisyphean efforts are required in order to simply obtain single entry visas. The promises of multiple entry visas have not been delivered. And an example is that is even the beginning of the story because even when we get a single entry visa limited in temporal duration, we have to get internal travel permits to go, for example, to Darfur. And there has been decisions to say we can't get those before we travel, so teams have to be deployed, wait in Darfur, waiting in order to do their job. And the reason I think this is important is: we have a job to do. We will try to do it. But whilst internationals may sit in hotels in Khartoum waiting to get travel permits, we have children and women and men waiting in refugee camps, waiting for justice. And it is their patience, not mine, that I am quite focused on.

Access to documentation and witnesses remains restricted and there is significant challenges even getting access to what should be clearly public - for example, the National Archives. And in this reporting period over the last six months, unfortunately not one request for assistance has been executed by the Government of Sudan. More than 34 remain outstanding, and I continue to wait for formal approval for what was promised to me orally, what is in a signed memorandum of understanding, namely the ability for us to establish an office in Khartoum.

Mr. President, it may be said that these are bureaucratic issues, that this is evidence of a dysfunction rather than obstruction. Time will tell, but one thing is clear: things are getting worse. They were better, and they can get better again if there is a will to cooperate with the will and international obligations of 1593.

Mr. President, a change of posture is needed, with the greatest of respect, by those charged with the responsibility or those that have assumed responsibility in Sudan, because what we are talking about is the potency and the credibility, not of the International Criminal Court, not of the Office I lead, but also of this Council. Can decisions and obligations when they are finally achieved by this Council be disregarded? Can any individual state or authority thumb their nose at the will of the Security Council? And if the answer is yes, what hope is there? And if the answer is no, what are the options that member states can make or this Council can decide upon in order to encourage the implementation and the discharge of international obligations? If we do not see cooperation in the next period, and I know it may be a sensitive position in Sudan, maybe there has been many sensitive moments in Sudan, and we are trying to work in a way that does not, that helps Sudan in its transition, that enforces – not undermines – peace and security and stability. But my obligation by dint of the statute is quite focused.

Over the last period, since 2005, not one domestic trial has taken place in Sudan for the hundreds of thousands of people that were displaced, for the pictures of property being burnt and destroyed, and for the allegations of rape, of targeting children, and civilians, that we have heard in the Courtroom and we have heard in many other areas as well. And if we do not see a change of approach, I may have no option in the next report but maybe to commend certain other action by member states in the next period. I am open to engagement. I really am genuinely open, and I mentioned it to his Excellency yesterday, to innovative approaches, engaging with the African Union, engaging with Sudan, building partnerships. But something has to be done because partnerships require two people, two entities to be engaged. As the saying goes in English: “It takes two to tango”. We cannot try to move alone. And if we do, we will not get to the destination that we are compelled to get to, which is simply getting to the truth.

Those that wish to frustrate accountability must not be allowed to run down the clock. And I expressed that in Khartoum and I expressed that in my meetings yesterday and at other occasions. It is really my sincere hope that we can partner together with Sudan, that Sudan can seize the moment for its own sake, for the sake of its international reputation, for the sake of its people that it represents and its future. And the roadmap towards accountability that I have presented I really do hope it can be seized because it will be beneficial to international justice and in my view beneficial for Sudan.

But we will strive to ensure that those, that anybody who seeks to frustrate the work of the Court through non-cooperation will not be successful. And this is why we have tried to the best of our ability to build new partnerships. To go to third states, to go to international organisations, to strengthen the evidential base from a variety of other sources. And I am pleased to note that in the last reporting period, we have significantly strengthened that cooperation and it is paying dividends. The innovation, the new approaches put forward have allowed us to collect new evidence in relation to some of the individuals for whom there are outstanding warrants.

But more is needed. More is needed. I think it is only right to also commend the states that have assisted us in this period. Everybody should be the friend of humanity. This cannot be jeopardised by the fractures in the Council or in the international firmament that we witness around the world. This is not politics. It is basic humanity. And we can, and it is my hope, to side a clearing through the thicket of disinformation that will also allow us to discharge our responsibilities to get to the truth, but will also allow us to identify a proper roadmap so that I can discharge my responsibilities under the Statute, but also my responsibilities to the Council, and also help identify a way to close the Situation. As I have said repeatedly, these Situations cannot be never-ending stories.

We have conducted over this last period a comprehensive mapping process with a number of third states. And I think this is going to be extremely important, and I hope to report more at my next briefing to the Council. In addition to briefing those states and international organisations and partners who have tried to be on the side of humanity and on the side of justice, I also want to note that sometimes the most valuable contributions offered by those who dedicate themselves completely pro bono. And in this regard, I also want to commend my special advisor for Darfur who sits behind me, Mrs. Amal Clooney, for her dedication to the cause of justice. This is not cosmetic. It really shows evidence that when we work together, we can make a difference. But that is what it requires. It requires a coming together in a way that is not political, and we are not political, to independently and impartially get to the truth.

When I next brief the Council, Mr. President, I hope to report that there has been a revitalisation, that there is a renewed common effort between my Office and the Sudanese authorities to implement the mandate given to us by this Council. And that would also reflect of course, on the promises made by the Government of Sudan during my previous visits. But irrespective of this cooperation, I have every confidence, I will be able to report on further progress made in the current trials. And also I am hopeful that new pathways for further accountability will have been set.

The question really must be not whether we can deliver on the mandate, but how. I think through the adoption of the new strategy, by new resources, by running investigations more diligently, we can ensure that steps towards justice continue to be taken. The question of the moment perhaps is whether this can be achieved; whether this will be achieved in partnership, in sincere partnership with the Government of Sudan or not.  And I, for myself and on behalf of the Office, sincerely hope that they will become valued partners willing to work with me, to deliver justice in a manner that will allow us to tell the victims, to look them in the face, to say, “There has been justice, your lives matter, your experience matters to all members of the Council”. And we can also then close the situation, dispel the clouds that do hang over Sudan, so it can fulfil its destiny, by fulfilling the aspirations of all its citizens, unencumbered by the burdens of the past that it will carry until justice is delivered.

The victims and the survivors can never be far from our thoughts. And I really do think in this crucible, it is important to remember them. If the Council could visualise the faces of children: some knocking deflated footballs around, some in an array of clothes that may have been worn by generations, parents who themselves are born in these camps because there is many, many challenges that are faced. I think we will realise there is a moment to suspend the normal political discourse, realise that in these moments of influence that we all have, the moments of authority that this Council continues to have, we need to be able to discharge responsibilities in a way that we can be proud of.

Since I have commenced my responsibilities as Prosecutor about a year and a half ago, I have made very sincere and determined efforts along with my deputies and staff of the Office to reform, to restructure, to improve the processes of my Office, the functions of my Office, to inject more professionalism, so I can better discharge my own responsibilities under the Rome Statute.

And with the greatest of respect, perhaps the time has come. Indeed, perhaps it is long overdue for Sudan to be similarly determined to ensure its cooperation with my Office is that which is required of it as a function of international law pursuant to Resolution 1593. Because as I said judges will judge what is presented in the courtroom, but history, of course, judges us all.

Thank you so much.