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, firstly thank you for the opportunity to brief the Security Council again, and also my sincere congratulations on you and on Sierra Leone on assuming your Presidency of the Council for the month of August. And I’d also like to thank the distinguished representative, Permanent Representative of Sudan, for his attendance here today. 

Mr President, Excellencies, you all know that the last six months since I presented my last report to this Council have been six months of misery, six months of torment, a terrible six months for the people of Darfur. When, you may recall I addressed you last, I did so from N’Djamena in Chad. And I’d heard from survivors in Farchana, right on the border and Adre, and I had the opportunity to recount some of their experiences, some of their trauma, and some of their expectations of me, of the ICC, and also of the Council. And unfortunately, the last six months have seen a further deterioration. Many credible, credible reports of rapes, crimes against and affecting children, persecution on a mass scale inflicted against the most vulnerable civilians in Sudan and certainly the most vulnerable people in Darfur. Terror has become a common currency. And the terror is not felt by the people with guns and with weapons but this is felt by people who are running very often with nothing on their feet, people hungry. And one can just do a simple Google search on our phones, and one will gain a smattering of the types of allegations that are being received by so many communities, civil society organisations, available to every state, every member state of the United Nations, to this Council and also to my Office. 

And I am particularly disturbed of the very harrowing accounts we are hearing of crimes against and affecting children, the sustained catalogue of allegations of gender crimes. And I will say today what I have said previously, that I am prioritising the allegations regarding these types of crimes: the crimes that historically in Sudan, and in the wider world, have affected disproportionately the most vulnerable, the very most vulnerable aspect of our population. And the types of crimes that also have, in many cases, not been fully addressed by international accountability efforts. 

These profound human rights abuses, these mass violations of personal dignity, these Rome Statute crimes that seem to be committed as we speak are fuelled by myriad factors. Factors that are not new, factors that were present in 2005 when you referred the situation in Sudan to us: provision of arms, financial support from various sectors, and by political triangulations that lead to inaction by the international community. But also, it’s fuelled by a sense of impunity that I have referred to before, the feeling that the bandwidth of the Council, the bandwidth of states is too limited, it’s too preoccupied with other epicentres of conflict – hot wars in other parts of the world that we have lost sight of the plight for the people of Darfur. We have somehow forgotten of the responsibilities under the UN Charter that rest with this Council, by dint of your declaration in 2005 that the situation represents a threat to international peace and security. This feeling that Darfur or Sudan is a law-free zone, in which people can act with abandon based upon their worst proclivities, their worst base instincts, the politics of hate and power, the opportunities to profit, rather than the fundamental imperatives that we owe to each other based on our common humanity. And as reflected, Mr President, in my report, it’s a central mission of my Office to attempt to provide some protection to these vulnerable communities. 

So many belligerents in Al Geneina, in El Fasher, across Sudan think they can get away with murder, they can get away with rape, they can get away with brutal acts. And maybe every six months there will be a Security Council report, there will be a flicker, they think, of attention on their, I am sorry to say miserable lives, the lives trying to escape into tomorrow, which is not guaranteed. And so, we do need your help more than ever to make sure that this expectation of justice, of all human life mattering equally, is given some backing in substance.

We are making some progress in a very bleak place, I confess that. It’s a very bleak place in Sudan at the moment, a very bleak place for the people of Darfur at the moment. But to those on the ground today in Darfur – I am addressing both the Sudanese Armed Forces and the Rapid Support Forces – to those that are aiding and abetting them, that are encouraging them, that are funding them, that are supplying them with weapons, that are giving orders that are gaining certain advantages, I want to be crystal clear that we are investigating. We are using our resources as effectively as we can to make sure that the events also since April of last year are subjected to the principle of international humanitarian law, and the imperative that every human life must be seen to have equal value. In this reporting period, one sees the misery I have mentioned, the agony, the unnecessary loss of innocent life that is taking place every moment. And one is somewhat embarrassed to then say, well, what are the positives? But this is the world in which we operate. This is the terrain in which the ICC has to traverse. 

There have been positives. In this reporting period, after a great deal of difficulty, finally we had cooperation from Sudan and the team could enter Port Sudan, and we have managed to collect evidence, and the engagements with General Burhan and his authorities have also allowed a number of long-standing requests to be effected. We have had many long-term, significant missions to Chad, and we have been collecting very valuable testimonial evidence from people displaced from their homes who fled for their lives, and they managed to get out and tell their story. And we have been engaging in myriad, different ways with Sudanese civil society whether it’s in Europe, whether it’s in Africa, in Chad, in the Central African Republic, or in South Sudan, we are trying new ways to engage to get and preserve their accounts and their stories to analyse it, and to piece it together to see what crimes, if any, it shows, and who, is responsible for the hell on earth that is being unleashed so stubbornly, so persistently against the people of Darfur. And we have been also deploying technological tools so we can piece together the different types of evidence sets that are available now, from phones, from video and audio recordings that are also proving to be extremely critical to pierce the veil of impunity. 

Collectively, Mr President, investigators, analysts, lawyers, the men and women of our Office, with civil society, and with everybody that is willing to join hands, have made some significant progress. And I will be in a position, I believe, where I hope by my next report, I will be able to announce applications for warrants of arrest regarding those, or some of those individuals that are the most responsible for what we are seeing at the moment. 

This should be heard clearly. The ICC is not a talk shop. My Office are not looking and marking on the calendar the two privileged opportunities we have to brief the Council, and to cover a naked truth that people’s lives are being lost that should never suffer. People are scarred, or are buried, or are desperate for the international community to hear their cries, to see their blood, to see and feel their agony and come up with solutions, not polemics.

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In order for any actor to mitigate the potential impact of any action my Office may take, or any action the judges of the ICC may feel it appropriate to effect, the only advice I have is, compliance with the law is the best response. Cooperation with my Office is the best response and the best defence for any individual to say that they are not part of this drive of cruelty, that are against impunity, that are not simply pointing fingers at the other side but are trying to make sure that the people under their command are having the most vulnerable in existence uppermost in their mind in relation to every decision that is being taken. 

Mr President, we can recall the heartbreak of the past, that goes back to 2002 and 2003 and has been a constant theme of these 39 reports that we presented to this Council. But it should be etched on our hearts, in my respectful view, that these are not just echoes of the past. This is a nightmare that people are enduring today. And all of us must look at ourselves in the mirror and say have we collectively done everything we can? The ICC is not and never has been a silver bullet. To solve the different crises of the world, it requires the support of states. It requires and it deserves, in my respectful view, effective support from the Council. And the Council perhaps, if I may be so bold, needs to look at imaginative ways, creative ways to stop this cycle of violence from persisting. Is everything being done that can be done to enforce peace, to give a ceasefire a chance, to allow people to talk and walk away from the killing fields that are developing throughout Darfur? 

Mr President, as we are looking at the events since April, we have not forgotten the reason why you referred the situation to us. The case of Abd-Al-Rahman, Ali Kushayb, is proceeding well. Of course, matters were somewhat delayed because of the insecurity in Darfur and the judges had to give various amendments to the original timetable. But it still stands to be one of the most effective trials in the ICC’s history. The anticipation is, one more witness for the Defence will testify in September, and then closing briefs will be presented by all parties and by the legal representative of the victims, and is anticipated that the trial will close, Inshallah, this year. This is a trial in which more than a hundred witnesses would have been heard and 1,500 items of evidence presented by my Office in support of the allegations against Mr Ali Kushayb, Mr Abd-Al-Rahman. And great credit must be given to the respected judges of the Trial Chamber and the sterling work of all the Registry staff for making sure the trial could continue and is continuing even in the midst of all the difficulties that are well known.  

We will do everything, Mr President, to fulfil our mandate in these very difficult moments for the people of Darfur. But as referenced, we need more support from every member state of the United Nations. And as I mentioned perhaps in my last briefing, one gentleman as I was sitting on the floor in a tent in Adre, very poor people and one could taste the dust, and he said, “Well, it’s wonderful you are investigating events since April, but why are you optimistic that things will be different if you apply for warrants? If warrants are issued, then what?” And it was a very profound question, and it still haunts me. I had to confess, “Well, I’m not particularly optimistic because Darfuri lives mattered in the decade since 2005”. But perhaps now there’s another consideration in addition to the individual worth of humanity, that is worth a pause and some reflection. Because we are seeing, really, a trapezium of chaos in that part of the continent. If one draws a line from the Mediterranean of Libya down to the Red Sea of Sudan, and then draws a line to Sub-Saharan Africa, and then all the way to the Atlantic with Boko Haram causing instability, chaos and suffering in Nigeria, and then back to Sudan. And we see the map, and the countries that risk being unsettled or destabilised by this concentration of chaos and suffering. 

I do wish to underline my own analysis that apart from the rights of the people of Darfur, we are reaching a tipping point, a critical mass in which a Pandora’s box of ethnic, racial, religious, sectarian, commercial interests will be unleashed that will no longer be susceptible to political powers of the great states of the world or even of this Council. It requires some real action now to stem the bleeding. And life in Sudan, stability in Sudan may augur well for more peace in that part, that huge part of the continent of Africa. 

I do ask the government of Sudan to expedite its cooperation with the Court. In the report, I mentioned some good steps, some positive steps, but of course as they saying goes, from Aesop, I think, “One swallow does not a summer make”. We need continuous, deepening cooperation with the Sudanese Armed Forces, with General Al-Burhan and his government moving forward. And one concrete way in which that commitment to accountability and this lack of tolerance for impunity can be evidenced is by properly enforcing court orders. There are, of course, warrants outstanding, including the warrant for Mr Ahmad Harun, and that case also is linked factually with the case of Abd-Al-Rahman. So I really would ask that in our discussions, we also focus with the government of Sudan, with concrete efforts to show a real concern for the people of Darfur and a real commitment to the requirements of this Council to cooperate with the ICC in terms of arresting Mr Ahmad Harun and transferring him to the Court. 

In addition to that, in this reporting period, and it will be evidenced in my budget also to State Parties in December, that I have established a Tracking and Information Fusion centre to also give more resources and have deployed greater skills and a greater variety of skillsets, to make sure various warrants of the Court, some public, some confidential, can be executed with greater effectiveness. And in that, we are working closely with the Registrar of the Court as well. 

Mr President, in this reporting period, visas have been approved for investigations. We have gone into Port Sudan. We have met the Sudanese authorities, including the Attorney General. We have met with the National Commission established to investigate crimes committed in the context of the current conflict in Darfur. Some requests for assistance have been actioned, others partially actioned, others remain pending. But in my meeting with the Chair of Sudan’s Transitional Sovereignty Council, General Abdel Fattah Al-Burhan last year, I received a number of commitments, and I’m pleased that it has improved from a very low base, exceptionally, from a low base. But there is significant room for improvement. And the improvement that comes, I must also thank particularly and publicly, the new focal point for cooperation that was appointed by Chairman Al-Burhan following our meeting. 

There have been significant efforts in the last quarter of 2023 and up to now, to engage with the leadership of the Rapid Support Forces. I haven’t seen any concrete result from those efforts of engagement. This is a place, a courtroom but also a Council, is a place where there should be no hiding place. Either people are attacking the flag of justice and are holding aloft the standard of impunity or vice versa. Because of that difficulty, we have tried to engage with other groups, including the Arab communities in Darfur. It wasn’t easy, there was some trepidation, there was some concern. But I think the discussions that have taken place between my Office and the Arab communities in Darfur, the tribal leadership, has put it on a level that can be further consolidated and hopefully can allow misunderstandings to be removed, and that we are joined not by ethnicity, but our common humanity. 

There are of course, many crises. Every morning, the distinguished members of the Council will wake up and see another crisis. Some that have been long fermenting, others that seem to have arisen unexpectedly. And the challenge really is to show that the Council can back the Court continuously in the way that we are getting support from many member states. 

But this is a defining moment. When we see this increasing concentration of suffering around the world, and I have said it before in different contexts, there is this cry raised from so many parts of the Global South, and from the Global North, that does every human life matter equally? Are the institutions created fit for purpose? Are we able to deal with people that are being attacked, and are we acting with such integrity, with such courage that we would act if though our own, God forbid, our own family members? Because if we don’t have that moral courage, if we don’t have that clarity of thought, if we don’t find these ways of building and enhancing partnerships between, whether it’s the ICC and the Security Council, or with the United Nations, with the African Union, with regional partners, with the people of Sudan, the government of Sudan, with the tribal communities of Sudan, we are going to get more misery and more of the same. 

This climate of impunity that we see very tangibly on the ground in Al Geneina, increasingly in El Fasher, are driven by a deep belief that all human life doesn’t matter and that we are not watching, that we are not paying attention, that somehow we are indifferent or that we’re apathetic. We are not. The Office is not because of the support we have been given by many member states, because of our obligations to fidelity, to the rule of law. And with your help, Mr President, distinguished members of the Council, we should be aware of the Charter’s fundamental imperatives, realising that all of us are mortal. No representative will be here forever, and these are moments that we have, maybe small opportunities, to make a difference for people that we will never have the privilege of meeting, we will never have the privilege of knowing, and they may not survive our inaction a day further. 

Thank you so much.