Security Council

Security Council Meeting on the Situation in Darfur – Report Presentation by Fatou Bensouda

By Sophie Bones, PILPG Law Fellow & Victoria Ernst, PILPG Research Associate

Bensouda’s Remarks – paraphrased 

Effecting warrants of arrest is a big challenge and more collaboration is needed between Member States and the ICC. States Parties receiving as guests suspects the court wishes to arrest cannot become the usual practice. Over the years, reports have highlighted consistent failure of the Security Council to react on the movement of Bashir between states, and States Parties have failed to comply with the court’s request despite a clear treaty obligation to do so. A lack of legal clarity has been used to justify this, however the ICC’s position is that there is no legal lacuna or ambiguity concerning States Parties’ obligation to arrest persons with warrants issued against them. Such failures are flagrant violation of the Rome Statute, they equally undermine the Security Council’s reputation, and are an affront to Security Council resolutions. South Africa failed to arrest Bashir, and the pre-trial chamber found it had failed to comply with the arrest warrant – a direct contravention of the Rome Statute. This failure prevented the court from exercising its functions and powers under the Statute. This decision (not appealed) establishes that there is no legal or factual justification for South Africa’s failure to arrest and surrender Bashir to the court. In such circumstances, there can be no justification to not arrest based on their official status where a warrant has been issued. Despite the chamber’s finding of non-compliance, it did not refer South Africa to the ASP or the Security Council. This was for multiple reasons namely that South Africa was the first State Party to utilize art. 97 of the Rome Statute; the chamber took note of robust domestic proceedings in South Africa on the issue. 

A spotlight is cast on the repeated inaction of the Security Council. This is a matter of grave concern, in particular for Bashir’s victims. This costly inaction has potential to undermine the fight against impunity and lowers the bar of accountability that many have fought to raise. Due to this inaction, states are safe in the knowledge that the Security Council will not respond to breaches. This has a detrimental impact on victims who rely on the court. The EU’s call to Member States of the UN to abide by, and implement resolutions made by the Security Council under Chapter VII was welcomed. However, cooperation has been a significant challenge. The Office of the Prosecutor (OTP) does have gratitude for the support received from other States Parties which has been crucial for obtaining information and evidence. Sudan continues to adopt an antagonistic posture to the ICC and refuses to cooperate, however the ICC is ready and willing to cooperate with them. It is necessary to remember that Bashir and other suspects are alleged to have committed serious crimes under the Rome Statute. As such, the office will continue to independently and impartially investigate these crimes, and notes that all suspects are innocent until proven guilty by the OTP. The OTP calls on the Council to remind parties to comply with International Humanitarian Law. The work of the ICC is essential for fighting impunity for world’s most serious and destabilizing crimes. The Court should be actively supported by the Security Council and community as a whole. The OTP is still receiving reports of killings and displacement of peoples. Moreover, there have also been reports of sexual violence, in particular against young girls. On this note, the OTP reminds the Council that it needs financial support to continue its investigations. Accountability for crimes under the Rome Statute is a necessary complement to sustainable peace in Darfur. Finally, the OTP calls on Member States to come to action on warrants for arrest issued by the court 

Sudan’s Remarks – paraphrased 

Their first comment was regarding the existence of small arms and light weapons in conflict zones. These weapons, the Sudanese representative claimed, contribute to insecurity and instability in the region, and therefore their presence in Darfur poses a challenge to the government. However, he argued that the Government of Sudan will not be part of the weapons collection, and UNAMID is to be responsible for this task. Sudan is not a party to the ICC, whose prosecutor and office, he says, have been blinded by political motives and cannot see the clear position of international law (referring to the Vienna Convention on the Law of Treaties, and the Vienna Convention on Diplomatic Relations). The Sudanese representative further argued that Security Council Resolution 1593 specifically refers to the fact that ICC jurisdiction does not apply to non-parties. This focus on Sudan, he says, is the result of inconsistencies inherent in the Rome Statute, notably the wide and unlimited powers granted to the Prosecutor, going on to mention “shocking reports about corruption of the court and the prosecutor”. 

He states that this Sudan report is the same as previous reports, which have gone beyond all international norms by attacking sovereign states and heads of state. He goes on to complain that the report does not highlight the real perpetrators of the violence – the armed groups. He argues that the ICC is hampering the peace process, and the Prosecutor is a tool for one single predetermined purpose- the intent to use the ICC as a political tool to achieve a specific political objective to extend the hostilities in Darfur. They argue that this intent is solidified by the Security Council Resolution 2363 which seeks to extend the mandate of UNAMID without care that further presence of UNAMID and ongoing ICC interest will continue the war. They believe that the ICC is an obstacle that needs to be removed in order to achieve peace in Sudan so it can turn to development and peace. He also argues that the Prosecutor has used fabricated information on Darfur regarding the numbers of people displaced and the atrocities committed all of which are outside the duties of the Prosecutor, and calls for an investigation into the sources used. He concludes by saying “we pay no attention to the contradiction, utterings, and phrases of a court that was born dead”, and “Sudan will pursue the course of lasting peace in Darfur, by doing so we will protect our people from falling victim to conflict, victims who are being exploited by the Prosecutor and her office”. 

Responses to the Prosecutor’s briefing from other Security Council Member States fell into two camps: those that supported the ICC and the apprehension of Bashir, and those that believed the continued investigation violated international law norms. Sentiments among states in each camp were largely consistent. The United Kingdom, France, Sweden, Senegal, Italy, the United States, Ukraine, Uruguay, Bolivia, and Japan supported the cases in Sudan. Sudan, China, Egypt, Russia, and Ethiopia did not. 

Among the representatives that voiced support for the ICC, the main issues concerned IDPs, continued sexual violence, and continued impunity. Representatives from the UK, France, Sweden, Italy, Uruguay, Bolivia, and Japan called on the Security Council to enforce the decisions of the ICC and take action against non-compliance, especially by State Parties to the Rome Statute. The UK representative stressed the importance of DDR, but said that the government’s ongoing disarmament campaign was undermining the security situation. She also addressed the continued volatility of the situation and the need for a ceasefire to refocus on the peace process. The French representative called for increased access for UNAMID so it could fulfill its mandate. She also reiterated a previous proposal to allow states that do not cooperate with ICC arrest warrants to come before the Council and have a dialogue. The Senegalese and Bolivian representatives called for support of the OTP as well as support of the AU’s high-level implementation group in achieving peace in the region. The Bolivian representative called on non-Parties to the Rome Statute to ratify and added that constructive dialogue was impossible while non-Party states advocated for the rule of law while ignoring their own international obligations. The Italian representative highlighted that the Council’s conversation about Darfur was not progressing and that continued talk without action was not advancing peace or security. He called for more open dialogue and creative solutions. 

The representatives that were not supportive of the ICC’s continued presence in Sudan reiterated sentiments that pursuing prosecution of Bashir violated customary norms relating to head of state immunity and national sovereignty. Representatives recognized achievements made by the Sudanese government in cooperating with UNAMID and others providing humanitarian assistance. Representatives advocated for an African driven peace process, which was being hampered by continued international intervention. Representatives also highlighted their position that states not Party to the Rome Statute have no obligations under it and cannot be held to violate its provisions or to abide by its orders. The Ethiopian representative went as far as to say that the case against al Bashir was weak and was “frankly becoming an embarrassment” to the Court. He said that continuing the case would only serve to damage the Court’s credibility. The Russian Federation representative said that the Prosecutor’s report was misleading and ignored real progress being made by the government of Sudan in pursing peace. He also defended Russia’s inaction in apprehending Bashir and said that Russia did not intend to report to anyone on its bilateral contact with Sudan.

Sudan made it clear today that it has no interest in cooperating with the court, and their complaints are indicative of the regional opinion on immunity for heads of state, and the court’s focus on African States. Sudan views the ICC’s involvement in the region as antagonistic to the peace process, while the OTP stood strong in its opinion that Bashir needs to answer for his alleged crimes in order to fight against impunity and bring a lasing resolution to the conflict. It appears, then, that the parties are at an impasse. Any future progress remains to be seen.