December 2013 Monthly Forecast

Posted 27 November 2013
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AFRICA

Sudan (Darfur)

Expected Council Action

In December, the Council expects to receive the semi-annual briefing by the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, about the Court’s work on Darfur. At press time, no Council outcome was anticipated on this issue.

Key Recent Developments

Bensouda last briefed the Council on Sudan on 5 June expressing “a deep sense of frustration, even despair” that each of the semi-annual briefings on the work of the ICC on Darfur “had been followed by inaction and paralysis within the Council while the plight of victims of crimes committed in Darfur has gone from bad to worse” (S/PV.6974). Bensouda described several problems in the region, including indiscriminate aerial bombardment, sexual violence as a weapon of war, lack of humanitarian access and impunity for crimes.

The ICC’s indictment of President Omar al-Bashir of Sudan on charges of genocide, war crimes and crimes against humanity hindered his travels in recent months. Bashir attended a 15-16 July AU meeting in Abuja, Nigeria, but departed prematurely. Some have suggested that he may have left out of concern that he would be apprehended, as on 15 July the ICC Pre-Trial Chamber had requested Nigeria to arrest and surrender Bashir to the Court.

In September, Bashir applied for a visa to travel to the US to attend the opening of the 68th UN General Assembly. Speaking at the Security Council stakeout on 16 September, Ambassador Samantha Power (US) said that such a trip “would be deplorable, cynical and hugely inappropriate”. On 18 September, the ICC Pre-Trial Chamber issued a public decision in which it invited US officials to apprehend and surrender Bashir to the Court if he entered the US. In the decision, the ICC noted that while the US is not a state party to the ICC, the Council “‘urge[d] all States…to cooperate fully’ with the Court” in resolution 1593, which was adopted under Chapter VII. Ultimately, however, the US did not issue a visa to Bashir, and he was forced to call off his trip.

In a 12 October decision, the AU reiterated its “concern on (sic) the politicization and misuse of indictments against African leaders by the ICC” and decided that “no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office”. (Although primarily focused on the ICC proceedings against President Uhuru Kenyatta and Deputy President William Samoei Ruto of Kenya, this decision is also relevant to Bashir, as an ICC indictee.)

Recently released statistics reflect the severity of the security situation in Darfur. The UN Office for the Coordination of Humanitarian Affairs (OCHA) reported that more than 460,000 people have been displaced in Darfur in 2013 as a result of inter-communal violence and fighting between the government and rebel forces. OCHA estimated that this figure is more than the number displaced in 2011 and 2012 combined. According to the UN High Commissioner for Refugees, approximately 36,200 refugees from Darfur have crossed the border into Chad in 2013, while 3,400 refugees from Darfur have made their way into the Central African Republic.

On 20 November, Ambassador María Cristina Perceval (Argentina), chair of the 1591 Sudan Sanctions Committee, provided the quarterly briefing in consultations on the Committee’s work. Concern was expressed during the meeting with violations of the arms embargo and the ongoing inter-communal violence in Darfur.

A Rwandan peacekeeper from the AU-UN Hybrid Operation in Darfur was killed near Kabkabiya, North Darfur, by unidentified assailants on 24 November.  The Council issued a press statement condemning the attack on 25 November (SC/11187). 

Key Issues

An immediate new issue is whether and how the recent friction in the Council regarding the failed draft resolution (S/2013/660) on 15 November to defer proceedings against Kenyatta and Ruto under Article 16 of the Rome Statute will impact the Council’s discussion of the ICC’s work in Sudan.

An ongoing key issue is how the Council’s unwillingness to act on requests by the ICC to take measures against state parties to the Rome Statute that do not fulfil their responsibilities erodes the effectiveness of the Court and undermines the credibility of the Council’s referral resolutions.

An additional key issue is whether the ICC indictments of Bashir and others in Sudan hinder the prospects for constructive diplomacy between the international community and Sudan.

Another important issue is whether a compromise solution can (or should) be found that balances peace and justice.

Options

One option is for the Council to listen to the briefing but to take no action at the current time.

Another option is for some of the members of the sanctions committee to visit Darfur to gain a better understanding of the situation on the ground to inform their work. (Such a trip has been deferred for more than a year now. It is currently planned for December, although final approval from the government of Sudan is still pending.)

Council Dynamics

The divisions on the Council with respect to the ICC are well known. Seven members are state parties to the Rome Statute (Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea and the UK) and eight (Azerbaijan, China, Morocco, Pakistan, Russia, Rwanda, Togo and the US) are not. While some members of the Council are in favour of the ICC’s work in Darfur, others believe that the pursuit of Bashir and others in Sudan is largely political, with African members in particular questioning why the ICC’s work to date has been exclusively focused on African cases.

The tensions on the Council over the ICC were thrown into stark relief on 15 November when the Council rejected a draft resolution introduced by the African members of the Council calling for a one-year deferral of the proceedings against Kenyatta and Ruto. The draft received only seven affirmative votes (Azerbaijan, China, Morocco, Pakistan, Rwanda, Russia and Togo) with the remaining eight members abstaining. (To be adopted, a resolution requires nine affirmative votes and no negative votes from any of the five permanent members.)

The UK is the penholder on Darfur.

UN Documents on Sudan (Darfur)

Security Council Resolution
31 March 2005 S/RES/1593 This resolution referred the situation in Darfur to the International Criminal Court.
Security Council Press Statement
25 November 2013 SC/11187 This press statement condemned an attack on a UNAMID patrol.
Security Council Meeting Record
5 June 2013 S/PV.6974 This was a briefing by the Prosecutor of the International Criminal Court on Sudan.