Despite First Trial on War Crimes, Thousands of Sudanese Refugees in Darfur Still Without Justice, International Criminal Court Prosecutor Tells Security Council

Despite progress being made in Sudan — marked by the first International Criminal Court war crimes trial of a former Janjaweed commander — the nightmare for thousands of refugees and internally displaced persons has not ended, the Court’s top prosecutor stressed today, calling on the Security Council to urgently turn its words into action 17 years after resolution 1593 (2005).

Karim Khan, Prosecutor of the International Criminal Court, speaking via videoconference from Khartoum, described his recent visits to three refugee camps in Darfur, including the Kalma refugee camp. In particular, he noted that at the Kalma camp, the nightmare for 300,000 people continues because justice and accountability have not been delivered as anticipated by the Council in 2005. During his visit, people rejoiced and chanted “Welcome ICC!” — calling for and expressing belief in justice.

He pointed out that recalling resolution 1593 (2005) is not always the same as remembering the situation which compelled the Council to refer the situation to the Court in 2005. He expressed hope he had not spoken out of turn when he told the people in all three camps that the Council will not forget Darfur “because they have not forgotten you”. However, their gratitude was not in proportion to what the Court, Council, Sudan and Member States have done, he noted.

Still, there was a glimmer of hope in the April case against Ali Abd-Al-Rahman, senior Janjaweed leader, which has had a great impact on the people of Darfur, he continued. He cited evidence that Mr. Abd-Al-Rahman butchered people and is facing 31 counts of war crimes and crimes against humanity, with 28 witnesses heard by the Court, which was “a microcosm of suffering”. The fact that this first case has begun is meaningful for those who feel international justice is impotent. Therefore, he stressed the importance of the partnership between his Office and Council to deliver more.

Noting that there are other cases for which the Court has issued warrants, he acknowledged the multiple entry visas granted for his small delegation. Nonetheless, recent months have marked a backwards step on cooperation — which prejudices not him but the Council’s demand for proper investigation, and Sudan’s responsibility to cooperate. The coming weeks will assess whether or not the mission is a success, he said, insisting on what the Council has required and what the victims demand, which is justice.

In the ensuing debate, many delegates welcomed the progress marked by the trial of Mr. Abd-Al-Rahman but called for greater cooperation with the Court from the Sudanese Government, including access to key witnesses and the Court’s establishing a greater field presence.

The representative of the United Kingdom said that the 28 witnesses who have provided evidence against Mr. Abd-Al-Rahman was a testament to their “courage and patience for them to tell their stories after two decades”. However, he expressed regret at the lack of sufficient cooperation from Sudanese authorities since the 2021 military coup, jeopardizing progress the previous Government had made. He urged authorities to respond swiftly to the Court’s requests for assistance and called for action on the four outstanding warrants and the surrender of Abdallah Banda Abakaer Nourain.

Gabon’s delegate stressed that the success of the ongoing trial depends on the improvement of the political and security situation in Sudan — especially in Darfur, where insecurity slows investigations and begets new victims. He urged national and international efforts to come together towards a return to constitutional order for enhanced cooperation between the Court and Sudanese authorities.

The representative of Ghana agreed that the Court’s engagement with relevant national authorities is a positive step towards desired results, but stressed it should not be subordinated to the principle of complementarity, which is a core principle of the Rome Statute. He commended the Prosecutor for his planned meeting with victims and survivor groups in internally displaced people’s camps in both South and Central Darfur states during his ongoing visit to Sudan from 20 to 24 August.

The Russian Federation’s representative, however, noting that the Court’s report is a month late, said that the first trial — one plaintiff after 15 years — did not constitute a major breakthrough. Further, the Court receives assistance from Western States to investigate the Ukraine dossier, while other serious cases are “swept under the carpet”. Objecting to such double standards, he quoted the Prosecutor’s own father in stressing that “if you point a finger at someone, you have three fingers pointed at you” — which holds true for those accusing his country.

Nonetheless, the representative of Sudan highlighted significant positive developments preparing the ground for a new political reality where freedom, justice and the rule of law prevail. The Government of Sudan has consistently demonstrated its commitment to cooperation with the Court, especially the Office of the Prosecutor — which has a high-level delegation in Khartoum at this moment. The people of Darfur have long suffered and the Government has put that issue at the top of its priority list during the transitional phase.

He noted former Court prosecutor Fatou Bensouda had agreed to three options in dealing with suspects: that they be prosecuted by Sudanese courts; appear before the Court; or Sudan would prosecute them by a hybrid court with international support. He called for different options to be examined, stressing the commitment to cooperation with the Prosecutor’s Office.

Mr. Khan, responding to comments, agreed with Sudan’s representative on the importance of looking at imaginative ways to move the situation forward. However, he challenged the fallacious assertion that his report was late. In fact, it was delayed at the request of Sudan out of respect for the recent Muslim festival. He urged the Russian Federation’s representative not to see the whole world through the lens of what is happening in Ukraine, underscoring that the people of Darfur deserved a few minutes’ focus on their own suffering. He then quoted another one of his father’s pearls of wisdom: that when one has jaundice, everything seems yellow, adding that he was praying for all parties involved be cured of that affliction as soon as possible.

Also speaking were the representatives of Mexico, United Arab Emirates, Brazil, United States, India, Norway, Ireland, Kenya, Albania, France and China (Council President for August, in his national capacity).

The meeting began at 10:02 a.m. and ended at 11:36 a.m.

Briefing

KARIM KHAN, Prosecutor of the International Criminal Court, speaking via videoconference from Khartoum, observed that this marked the first time in Court history its prosecutor was briefing the Security Council from a situation country. He had just returned from Darfur yesterday, where he met the Governor of South Sudan and visited the large Kalma refugee camp. He also met with the Governor of Central Darfur and visited two other camps — an impactful experience that reinforced his resolve that the Sudan situation must be properly prioritized, with resources and activities to deliver on the mandate given to the Court 17 years ago. The nightmare for thousands of people has not ended because meaningful justice and accountability have not been delivered as anticipated by the Council in 2005. Kalma Camp was established in 2004 and 300,000 people live there today, most as a result of the activities that compelled the Council to refer the Darfur situation to his office. Generations have passed away and children have been born. During his visit, people from the camp rejoiced and chanted “Welcome ICC!” — calling for and expressing belief in justice. He told them that while they may be cut off from roads, they are not cut off from hope.

The people want meaningful justice, he stressed, pointing out that recalling resolution 1593 (2005) is not always the same as remembering the situation which compelled the Council to refer the situation to the Court in 2005. Citing the “caravan of humanity” from Darfur to the camps and the allegations of rapes and killings, he said he hoped he had not spoken out of turn when he told people in all three camps that the Council will not forget Darfur “because they have not forgotten you”. While they were grateful, they expressed hope words were not pious hopes but would actually deliver. Still, the people’s gratitude was not in proportion to what the Court, Council, Sudan and Member States have done, he said. Resolution 1593 (2005) or the Juba Peace Agreement cannot be left to disguise inaction, and he suggested the Council consider holding a session in Sudan, to hear from those in camps who hold that organ in such high regard. If the international community does not deal with historic abuses, a cycle of impunity may well continue and other cycles of violence may take place.

There was a glimmer of hope in the April case against Ali Abd-Al-Rahman, senior Janjaweed leader, which has had a great impact on the people of Darfur, he continued. Noting “words simply are insufficient to give them their dues”, he called for all parties to pray but also to act, and “not allow this new day to become a false dawn”. Adding that the people are tired of false promises, he cited evidence that Mr. Abd-Al-Rahman directly butchered people, with he and his men throwing children to the ground and violating women. He is facing 31 counts of war crimes and crimes against humanity, with 28 witnesses heard by the Court, which was “a microcosm of suffering”. It is essential for his Office to be more connected and have a field presence, as it matters to the people. The fact that this first case has begun is meaningful for those who feel international justice is impotent; it is therefore important for the partnership between his Office and Council to deliver more, lest it be another false promise.

Noting that there are other cases for which the Court has issued warrants, he acknowledged the multiple entry visas granted for his small delegation. Nonetheless, by every other metric, recent months have marked a backwards step on cooperation, which prejudices not him but the Council’s demand for proper investigation, and Sudan’s responsibility to cooperate. The coming weeks will assess whether or not the mission is a success, he said, adding that he remains ready to engage with Sudan, her people and the Darfuri people in every way possible. He insisted on what the Council has required and what the victims demand, which is justice.

Statements

PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico) welcomed the start of judicial proceedings in April in the case of Ali Abd-Al-Rahman — the first case at the International Criminal Court based on a referral from the Council. He underscored that the case has had a profound impact on local communities and on the victims, many of whom had lost all hope of seeing any reparations after almost 20 years of waiting. Now, not only do they have an opportunity for a cathartic resolution but also for justice. This positive moment should be used to further strengthen cooperation between Sudan and the Court and contribute to implementing the Memorandum of Understanding signed by the two sides and the establishment of the Office of the International Criminal Court in Khartoum. Moreover, the Prosecutor’s Office must have effective focal points within the Government to continue working, especially regarding the protection of witnesses. He called on Sudanese authorities to address the pending request for assistance from the Office. He also expressed hope that the precedent set by the Ali Abd-Al-Rahman case points the way for other cases and ensures that action is taken on situations transmitted by the Council to the Court.

GHASAQ YOUSIF ABDALLA SHAHEEN (United Arab Emirates) welcomed all efforts to support the trilateral mechanism in facilitating a Sudanese-led and Sudanese-owned political process, stressing the need for Sudanese stakeholders to engage in direct talks and devise a common understanding on the way forward. These talks should feature the full, equal and meaningful participation of women and youth. Noting that Sudan responded promptly to deteriorating security conditions in Darfur, she called for the full implementation of the Juba Peace Agreement, with technical and financial support provided by the international community for that purpose. She also recognized Sudan’s cooperation with the Prosecutor’s office, marked by the hosting of several visits and organization of meetings with Government officials. “These engagements are an opportunity to deepen the sincere dialogue,” she stressed, reiterating strong support for Sudan’s efforts to implement transitional justice mechanisms.

JOĀO GENÉSIO DE ALMEIDA FILHO (Brazil) pointed out that the referral of the situation in Darfur was the first time the Council used the power bestowed on it by the Rome Statute, making resolution 1593 (2005) a landmark in the history of international criminal justice. The Prosecutor’s report outlines a clear, updated road map for accountability, while the presence of Sudan’s representative offers a positive sign of engagement. Without strong national institutions, able to deliver justice, there will always be a higher risk of relapse into conflict. “That is why the primary responsibility to provide justice belongs and must remain with national States,” without prejudice to the Court’s complementary role when they are unable or unwilling to do so, he explained. He commended efforts to establish a field office in Khartoum, bringing the Court closer to victims and witnesses and reinforcing its ability to collect evidence. Welcoming efforts to promote the first visit by a Court Prosecutor to Darfur, he reiterated that expenses incurred by the Court due to referrals by the Council must not solely be borne by States parties to the Rome Statute, but also by the United Nations.

RICHARD M. MILLS JR. (United States) welcomed the trial of Ali Abd-Al-Rahman, the former Janjaweed commander facing 31 counts of war crimes and crimes against humanity. He spotlighted the dozens of witnesses, many still living in Darfur — and many of them survivors — who travelled thousands of miles to The Hague to testify and he called on the Council to honour them, as their bravery to speak to the widespread killing and pillaging is inspiring. Recalling that the people in Sudan took to the streets after the October military takeover to demand democracy and human rights, he said that resolving the political crisis will require a civilian-led transitional Government to deliver on the promises of the 2019 revolution. While expressing alarm at recent intercommunal violence which displaced 100,000 people, he also congratulated the Juba Peace Agreement signatories — a significant step in protecting civilians. Noting Sudanese authorities have facilitated visits by the Prosecutor regarding investigations in Darfur, he urged for that cooperation to continue and improve. Sudanese authorities must comply with their international legal obligations, cooperate and allow the Court to access key witnesses without impediment and enhance its field presence. Those subject to the Court’s arrest warrants must be transferred to face trial.

RAVINDRA RAGUTTAHALLI (India), reporting that his country is not a signatory to the Rome Statute, noted the progress made in recent months, including the first trial in the case against Mr. Abd-Al-Rahman. The United Nations-facilitated intra-Sudanese political process must be Sudanese-led and address issues related to justice and accountability. He welcomed the initiatives taken since May by the Trilateral Cooperation Mechanism to launch indirect intra-Sudanese talks to end the political impasse. The Transitional Government has shown readiness to address issues relating to transitional justice, while parties to the Juba Peace Agreement have also agreed to establish a Truth and Reconciliation Commission in relation to Darfur and a Special Court for Darfur Crimes. Further, the most recent Secretary-General report has noted progress on the Darfur Permanent Ceasefire Committee and the joint security-keeping force in Darfur. He called on the international community to encourage States concerned towards an inclusive and transparent process to establish accountability for serious violations of international law committed within its jurisdiction. The pursuit of accountability and justice cannot be linked to political expediencies, he stressed, emphasizing that the goal of any such process is to enable justice, promote reconciliation and achieve long-term peace.

TRINE HEIMERBACK (Norway) welcomed the start of the Ali Abd-Al-Rahman trial, a landmark in terms of accountability and a sign of hope for the victims. She also welcomed the renewed strategic approach that potentially allows for addressing impediments to cooperation by Sudan’s authorities. Greater cooperation from other States and institutions would help the Prosecutor advance the investigations, she said, calling on authorities to facilitate an enhanced field presence for the Court. Recalling the major strides made by the Court in 2021, thanks to cooperation by the Government, she said the Council has given the Court a central role by referring the situation in Darfur to the tribunal and mandating full cooperation by the Government. “We must do everything we can to follow up and ensure that justice is served,” she said. However, the Prosecutor’s office in Khartoum has not been given access to the witnesses, documents and information requested, she noted, urging Sudan’s authorities to fulfil its obligations to cooperate. “The violence must stop,” she insisted, adding that the fight against impunity is a fundamental part of Sudan’s 2019 revolution and the Juba Peace Agreement.

SHANE HEREWARD RYAN (Ireland) voiced grave concern over large-scale violence in west Darfur resulting in the deaths of 200 people in April. Sudan’s authorities must fully investigate these incidents and ensure accountability, he said, pointing to the breakdown in constitutional order and echoing the Secretary-General’s call for a return to the transitional path of civilian-led, democratic Government through inclusive, Sudanese-owned political dialogue. While there is “considerable scope” for improving the Council’s relationship with the Court, its referral led to the opening of the first such prosecution, against former Janjaweed commander Ali Abd-Al-Rahman. Welcoming the Prosecutor’s open approach to reporting and development of benchmarks for this investigation, he said progress now depends on Sudan’s cooperation with the Court. However, such efforts have taken a backward step since October 2021. He voiced support for the Prosecutor’s request for unimpeded access to evidence, Sudanese territory and all material witnesses, urging the authorities to facilitate the establishment of a field presence for the Office in Khartoum, and to ensure prompt responses to all requests for assistance. He also urged Abdallah Banda Abakaer Nourain to surrender to the Court, and Sudan to surrender the three additional fugitives in Sudanese custody, in line with its obligations.

CATHERINE NYABOKE NYAKOE (Kenya) highlighted the considerable investment made by the people of Sudan in their national institutional and legal frameworks. Thus, international efforts and engagements should be mindful of the need to protect the country’s achievements. Its national, judicial and legal capacity must be strengthened so that it can lead in ensuring justice and accountability in line with the principle of complementarity. To that end, the Court can do more to support Sudan, she said, calling on the international community to extend support through shared lessons, best practices in transitional justice and accountability for human rights violations, among others. Noting that the African Union has encouraged its members to do so, she urged that similar investment be made in national dialogue and reconciliation to guarantee longer lasting peace. Regional initiatives and effort are necessary in providing a broader spectrum of practical avenues for justice and accountability. This, as envisaged in resolution 1593 (2005), should be given more focus, she said.

MICHEL XAVIER BIANG (Gabon) said the success of the ongoing trial depends first and foremost on the improvement of the political and security situation in Sudan. The persistent insecurity in the country, and in Darfur in particular, only serves to slow investigations and beget new victims. The return to constitutional order appears to be the best framework for enhanced cooperation between the Court and Sudanese authorities, he emphasized, urging that national and international efforts must come together towards that aim. The efforts of the Sudanese authorities to tailor national legislation to international standards in addressing atrocity crimes is a step in the right direction. Following the review of the criminal code and the Sudanese criminal procedure code, war crimes, crimes against humanity and genocide are now punishable by law. Moreover, legal privileges and immunities initially granted to law enforcement and security forces have been removed, among other developments. Such considerable progress must be recognized by all and should be consolidated and strengthened with capacity-building for the Sudanese judicial system while also ensuring the smooth functioning of State institutions.

SOLOMON KORBIEH (Ghana) said the Court’s engagement with the relevant national authorities is a positive step in confidence-building towards desired results. However, cooperation should not be subordinated to the principle of complementarity, which is a core principle of the Rome Statute. Noting the Court’s willingness to continue with its dialogue and the exploration of innovative approaches to address accountability at the domestic level, he called on the Government of Sudan to show support in that regard. He also encouraged the Court to continue to work with the Sudanese judicial system and provide the needed technical and capacity-building support. He commended the Prosecutor for his planned meeting with victims and survivor groups in internally displaced people’s camps in both South and Central Darfur states during his ongoing visit to Sudan from 20 to 24 August. The proposed establishment of a field office in Khartoum, as well as the possible locations for the presence of the Court in Sudan, are also welcome developments, he added.

SERGEI A. LEONIDCHENKO (Russian Federation) expressed regret that the Court’s report is a month late, which does not correlate with its pledge to focus on situations referred by the Council. The report also does not include progress on investigations into events in Darfur, he said, disputing that the first trial — one plaintiff after 15 years — constitutes a major breakthrough. The Court, which receives assistance from Western States to investigate the Ukraine dossier, appears to have completely different priorities, as other serious cases have either been left stagnant or “swept under the carpet”. In cases of crimes by their own militaries, Western countries do their utmost to escape accountability, using special legislation, sanctions and threats. He cited the involvement of the United States and United Kingdom in Afghanistan and Iraq in that context. Objecting to the Court’s double standards, he quoted the Prosecutor’s own father in stressing that “if you point a finger at someone, you have three fingers pointed at you”, a point which holds truth for those pointing a finger at the Russian Federation.

ALBANA DAUTLLARI (Albania), voicing regret that four Court arrest warrants remain outstanding, urged Sudan to surrender the four remaining suspects pursuant to resolution 1593 (2005) and the orders of the Court. Also expressing regret that only two requests of the Prosecutor have been answered among the 17 requests and that full access to the ground is still not granted, she urged the Sudanese authorities to allow the Court to have full, safe, and secure access to all parts of Sudan, including to archives and mass graves as required by the Memorandum of Understanding, resolution 1593 (2005) and the Juba Peace Agreement. The recent reports of intercommunal violence leading to the killing of civilians, large-scale displacement, property destruction, as well as attacks against hospitals in West and North Darfur during April and June were of great concern. In that regard, she urged the Prosecutor and Sudanese authorities to investigate those crimes as soon as possible and bring the perpetrators to justice.

THIBAULT SAMSON (France) called on Sudan to cooperate fully with the Prosecutor, urging authorities to honour their obligations under resolution 1593 (2005), the Juba Peace accords and the Memorandum. Investigators must have safe access to Sudanese territory, particularly to crime scenes in Darfur, archives and evidence, as well as to witnesses, including those detained. Welcoming the April opening of the trial of Ali Abd-Al-Rahman, he stressed that witnesses must be able to participate safely, without risk of reprisals. He called on Sudan to quickly surrender Ahmad Harun to the Court and again urged Abdallah Banda to also surrender to the Court to be tried. The current political deadlock in Sudan calls into question the many achievements of the past two years, he pointed out, expressing support for efforts to facilitate dialogue between the Sudanese parties led by the United Nations, African Union and IGAD. Political instability particularly affects the security situation in Darfur, with intensifying levels of violence, including between communities. Protecting civilians, as well as humanitarian and medical personnel, and ensuring full, safe and unimpeded humanitarian access, is the responsibility of the Sudanese authorities, he stressed.

CHANAKA LIAM WICKREMASINGHE (United Kingdom) welcomed progress made in the trial of Ali Abd-Al-Rahman, in which 28 witnesses have provided evidence since April. “It is testament to the victims’ courage and patience for them to tell their stories after two decades,” he said. However, he expressed regret that sufficient cooperation has been lacking from Sudanese authorities since the 2021 military coup, jeopardizing progress the previous Government had made. He urged them to immediately enhance their cooperation with the tribunal and to facilitate the establishment of a field office in Khartoum; a permanent presence is vital for the Office of the Prosecutor to deepen its engagement with affected communities. He urged authorities to respond swiftly to the Court’s requests for assistance and provide unimpeded access to documentation and witnesses and called for action on the four outstanding warrants and the surrender of Abdallah Banda Abakaer Nourain.

DAI BING (China), Council President for August, spoke in his national capacity to say that the international community should provide constructive support to the Sudanese Government to address the resource shortages in implementation of the Juba Peace Agreement and help the Government with capacity-building. Council sanctions have seriously restricted the security capability of the Sudanese Government, he pointed out, stressing that those sanctions should be adjusted and lifted considering the evolving situation on the ground. He expressed hope that the provisions of resolution 2620 (2022) on setting benchmarks for adjusted sanctions on Sudan before 31 August will be implemented, underscoring that the relevant benchmarks should be clear, well-identified and realistic. They should not go beyond the Darfur issue, nor should they be used as a political tool to exert pressure on Sudan, he added, noting that the International Criminal Court should strictly follow the principle of complementarity and earnestly respect Sudan’s judicial sovereignty.

AL-HARITH IDRISS AL-HARITH MOHAMED (Sudan) said that since the December 2018 revolution, there have been significant positive developments preparing the ground for a new political reality where freedom, justice and the rule of law prevail. Progress has been made towards democratic civilian rule, with no place for impunity. The Government of Sudan has consistently demonstrated its commitment to cooperation with the Court, especially the Office of the Prosecutor — which has a high-level delegation in Khartoum at this moment. The people of Darfur have long suffered and the Government has put that issue at the top of its priority list during the transitional phase — including the voluntary return of refugees and internally displaced persons. The Government signed the Juba Peace Agreement in 2021, setting out a comprehensive road map to address conflict and post-conflict arrangements, including protecting civilians with joint forces deployed throughout Darfur. The Transitional Government has abolished the immunity of officials which might impede justice, and the Sudanese judiciary is investigating all violations registered in Darfur since 2001.

However, despite international protocols, it is the Transitional Government that bears the responsibility to prevent impunity — as failure to do so would encourage further violations, he continued. Former Prosecutor Fatou Bensouda had agreed to three options in dealing with suspects: that they be prosecuted by Sudanese courts; appear before the Court; or Sudan would prosecute them by a hybrid court with international support. Noting the immense challenges and fragility of the situation, he called for all to examine different options. The Council must provide unlimited support to Government measures, leading to peace, stability and justice. He stressed that the Juba Peace Agreement has established a new reality in Sudan, especially in Darfur. Recalling the principle of legal complementarity, allowing for bilateral cooperation, he stressed commitment to cooperation with the Prosecutor’s Office — while also expecting that cooperation to be reciprocated to provide redress to victims. Fighting impunity is not a contentious issue, he stressed, but one of the main priorities of the Government.

Mr. KHAN, responding to comments, addressed Sudan’s representative by agreeing on the idea of looking at imaginative ways to move forward on the situation.

Turning to the comments made by the Russian Federation’s delegate, he challenged the fallacious assertion that his report was late. In fact, it was delayed at the request of Sudan out of respect for the recent Muslim festival. He noted that he agreed the international landscape is peppered with double standards, contradictions and imperfections. Nonetheless, “you too” or tu quoque is not a defence of international crimes. He urged the Russian Federation representative not to see the whole world through the lens of what is happening in Ukraine, underscoring that the people of Darfur deserved a few minutes’ focus on their own suffering. Contrary to what was said, his Office is not a single-issue body. Noting the reference made to the wisdom of his late father, he cited another one of his father’s pearls of wisdom: that when one has jaundice, everything seems yellow. He added that he prayed for all parties involved with the Sudan situation be cured of that affliction as soon as possible.

 

Source: UN Security Council