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, thank you for the opportunity that you provided me to brief the Council once again today. And I'd also like to express my gratitude to the Permanent Representative of Sudan for the opportunity that I had yesterday to meet with him as well. 

Mr President, Excellencies, it's 90 days now, 90 days from the 15th of April, when fighting erupted between the RSF, the Rapid Support Force, and the Sudanese Armed Forces. And that conflict, that engagement, has spilled out of Khartoum to engulf much of Sudan. Certainly it is felt by the people of Darfur. 

And the simple truth is that we are in this Council and in the world, as we see increasing reports, in peril of allowing history to repeat itself: the same miserable history that compelled this Council in 2005 to refer this Darfur situation to the ICC. As we speak, there are women and children, boys and girls, old and young, in fear of their lives, living with uncertainty in the midst of conflict. And as their homes are burnt, many as we speak will not know what the night will bring and what fate awaits them tomorrow.

This is not hyperbole or polemics. It's the result of an objective assessment from myriad sources. Just today, Mr President, the Office of the High Commissioner for Human Rights released a report which detailed allegations concerning the killing of 87 ethnic Masalit, allegedly by the RSF and members of their allied militia in West Darfur. We are investigating those allegations.

We are, by any analysis, not on the precipice of a human catastrophe but in the very midst of one. It is occurring. 

And it's my analysis and my prayer and advice that we must act urgently, collectively to protect the most vulnerable. If this oft repeated phrase of “never again” is to mean anything, it must mean something here and now for the people of Darfur that have lived with this uncertainty and pain and the scars of conflict for almost two decades.

With respect to the role of my Office, I do wish to be very clear that our mandate pursuant to Security Council Resolution 1593 is ongoing with respect of crimes within our jurisdiction: the crimes of genocide, crimes against humanity, and war crimes. And any individual who is found to be committing those crimes within our jurisdictions will be investigated. And depending upon assessments by the independent judges of the ICC, we will strain every sinew and leave no stone unturned to ensure that they are held accountable in fair and independent trials.
 
We have already started investigating, as I said. And Mr President and Excellencies, I do want to be clear and send a clear message to every belligerent, every commander, every foot soldier who has a gun or believes that they have power to do what they want. That targeting civilians, individuals, targeting their homes, targeting their businesses, intentionally, particularly targeting children and women, are crimes prohibited by the Rome Statute. Attacks against schools, against humanitarian supplies, against humanitarian facilities must cease because the harm that these types of activities are causing are so profound, they go beyond words. And I think that reality deserves us to pause for thought and contemplate the lot of those who are not in rooms or in chambers like this.

This is a moment really, Mr President, where we should really converge the Charter principles, the principles hard won at Nuremberg, the Rome Statute obligations and your own authority as a Council that in 2005 made a determination that these acts represented a threat to international peace and security.

And it applies not only in relation to acts committed in Sudan. Any individual that aids and abets, encourages or directs from outside Sudan, crimes that may be committed in Darfur will also be investigated.

This is a moment that really should cause some clarity in terms of where this is going, in terms of the legal options available, but also in terms of the moral responsibility and the legal responsibilities that we owe to people that feel invisible, that have felt invisible for almost 20 years, and who feel that the law and the pronouncements and resolutions from this Council are not taken seriously, and are not delivered to protect them, to be a shield for them as the Charter requires.

The investigations that we're looking at encompass also many allegations in West Darfur: looting and judicial killings, extrajudicial killings, burnings of homes, and also allegations in North Darfur. 

Now, these allegations I've already mentioned, Your Excellencies, the report of the High Commissioner for Human Rights today, but this also emerges from other sources, such as the UNITAMS report - and I take the opportunity of commending the excellent leadership, the cooperation of Volker Perthes, the SRSG, for their cooperation over this last period.

I've given clear instructions to my Office to prioritise crimes against children and crimes of sexual and gender based violence. And the various reports that we've received, I can't vouch at this juncture for their accuracy. But we are already looking at new, imaginative, innovative ways to verify what is the truth, to subject it to scrutiny. And I've said that during my term as Prosecutor, I will not apply for warrants unless there's a realistic prospect of conviction. But we will ensure, God willing, that justice is not only spoken about in this chamber, but it’s felt to vindicate the rights of civilians and the vulnerable in ways that they have not seen sufficiently in their lived experiences.

Today I can also announce a new public campaign that we've launched, asking and encouraging civilians, members of the different groups, any individual with information to provide it to my Office in a secure channel using the portal that we have set up.

Image

In this critical moment - and I think by any analysis that's the most bland statement we can say - in this critical moment, we need a very honest assessment. This outcome has been staring us in the face. It's been staring this Council in the face. It's been staring Sudan in the face for an awfully long time. 

We could see it coming. The question is what we're going to do about it. 

This reality, the fact that children are rendered orphans, or women are violated, and buildings are burnt, is the result of an unwillingness over a significant period, despite the reports that myself and predecessors have brought before the Council, despite the work of the Office of the High Commissioner, despite the work of different UN organisations and UNITAMS in the more recent past, we haven't given value to the accounts of the lived experiences of so many of our brothers and sisters who are Sudanese and who are Darfuri. 

It stems in my respectful view from a fundamental failure to recognise that justice isn't simply required for upholding normative values and principles of public international law, not even to vindicate essential principles of the Charter, but for all those reasons, all those instruments speak to a fundamental reality that justice has to be and is a foundation for any prospect of sustainable peace and real security and stability. 

It reflects, Mr President, a fundamental disregard and breach of clear, repeated commitments that have been made to the people of Sudan by their governments. And one can go through a whole litany of instruments and promises made but one can simply limit it to two: the unfulfilled Juba peace agreement of 3 October 2020, and the commitments made to myself, to my Office by the government of Sudan by dint of the Memorandum of Understanding signed on 12 August 2021. 

And this compels my Office to look how it can more effectively render justice at this moment in a way that we will not allow any errors of the past, any obstruction, any non-cooperation to sabotage the prospects of justice or to sabotage or render impotent the will of this Council with the heavy responsibilities that are placed in you.

By any measure, a failure to meet international legal obligations and the absence of any meaningful justice in Sudan for the serious crimes committed in Darfur 20 years ago, have sown the seeds to the weeds of woe that is the now the misfortune of so many Darfuris. 

Now, I remain open to engage with all actors to prevent further backsliding into ever deeper violence. I've tried over the last months to engage and we've got messages to the leadership of the different armed groups and government of Sudan and the RSF and I continue to make efforts. 

But any engagement has two key conditions. It's essential that those involved in hostilities recognise, however late in the day, however late in the day, that they have to uphold their obligations under international humanitarian law. There cannot be further excuses and prevarications and justifications for what is intolerable and unjustified and targeting the very, the most vulnerable people of humanity. And it's essential that those involved in hostilities extend genuine communication and genuine meaningful cooperation with my Office, both in relation to the current hostilities that we're investigating and also in respect to the previous crimes committed in Darfur. And we will be redoubling efforts to make sure that we can penetrate any obstruction that we face.

I think as the sky darkens over Darfur and in fact the people of Sudan, we must hold onto the light that justice can bring. Not because of some blind hope or blind faith but steered by determination, focus, and a decision. A decision to change things that we've seen in the past. 

And there has been hope. In the last six months tremendous progress has been made in the ICC case regarding Ali Kushayb (Mr Abd-Al-Rahman), and we've closed our case after presenting 81 witnesses that have been tested by the defence and have been heard by the judges of the ICC. 

That's a key milestone. And I would like to take the opportunity to commend my team, the men and women in my Office that have persevered in very difficult circumstances to discharge their responsibility with honour and with integrity and in an extraordinarily efficient manner. 

And the voice of victims has been heard. Recently, victims called by the legal representatives of the victims have been heard before the Court, and they have been yearning for 20 years for an opportunity to present their views.

And one example, if I may, is worth repeating because it speaks both to their misery of the last 20 years, but also it speaks to what is befalling them now. And the words of one witness, I will repeat with your permission. 

And I quote, he said: “I would like to say that we like justice and we want justice. We want that all those who turned our lives into humiliation and suffering and exhaustion to be held accountable. We want those who destroyed us to be held accountable. These people destroyed our future and the future of our generations. And in this moment, I am presenting to you my voice and the voice of all Darfurian refugees present everywhere around the world. And I would like to tell you that we want peace. We want to return to our homeland. It's enough now.” 

Mr President, how could anybody be more eloquent, sincere, and simple than that individual who spoke understandable truths? He is right: it is enough now by any benchmark and by any metric. 

And the power of that testimony, its tragic relevance today, underlines the fact that the trial of Mr Abd-Al-Rahman, despite all the difficulties, continues to make progress despite the current increased hostilities. And I'm pleased that because of the excellent trial management by the judges of the ICC, this has been the most effective, the most efficient trial in the history of the Court. 

But we've got to make sure that it can come to a conclusion. And I call upon the government of Sudan to join me, to provide every assistance to the defence, every assistance to the legal representatives of the victims, every assistance to the Court so that that trial can come to a final determination after an assessment by the judges of the ICC. 

But we need to show that we're delivering more than words and promises. We need to show demonstrable action. And I've said: this is going to be determined not only by the potency and the effectiveness of investigations, not even by the issuance of arrest warrants if judges of the ICC scrutinise any applications we present and are compelled to issue those warrants. But we need to see actual justice in court to separate truth from fiction and to give confidence to the people of Darfur that their lives mean something at all and that what took place is going to be justiciable.
I have said, Mr. President, repeatedly to this Council, that I do not want these Security Council referrals to be never-ending stories. I have tried to engage with the government of Sudan with roadmaps, with different options to make sure that justice in any forum is delivered in a way that can satisfy the objectives of the Council and the demands of justice.

But if authors are intent on writing further chapters of despair, further pages of misery, we will not close this book. We will keep reading, and we will ensure to the best of our ability that there is justice, that there is accountability. Because if we fail to deliver here, I think the implications are very severe. As we see in other situations, it calls into question the relevance of this Council. 

And I make no apology, Mr President, when I make my final remark. Many actors in this conflict - and I'm a Muslim - many actors in this conflict on both parties proclaim to be Muslims. I recall not only their responsibilities under the Charter, their responsibilities under Resolution 1593, their commitments by Juba, their commitments in the MoU they signed, but also in terms of the religion that they profess to uphold, which is Islam.

And the Holy Quran, Surah An-Nisa, which is Chapter 4, Verse 135, makes it clear, and I quote: “Be upholders of justice and witnesses of truth, even though it be against yourselves or against your parents, or be it against rich or poor. If you distort justice, God Allah Ta'ala, knows that which you do.”

There has to be a day of reckoning in this world. And this is another reason why I encourage each and every person, however high in any party to a conflict, or any civilian, to speak the truth and avail themselves of the opportunity now to take the hand of justice and allow there to be some accountability that has been often promised and has not been delivered by the government of Sudan. I think only if we work in that way of humility will we vindicate the promises we've been making now since 2005. 

Thank you so much.

The public appeal can be accessed through this page: https://www.icc-cpi.int/darfur

For the direct link in English, click here, and for the direct link in Arabic, click here.  

For further details on "preliminary examinations" and "situations and cases" before the Court, click here, and here.