Expected Council Action
In December, ICC Prosecutor Fatou Bensouda is expected to provide the semi-annual briefing on the Court’s work regarding Darfur.
Key Recent Developments
Darfur remains mired in a security and humanitarian crisis, with ongoing inter-communal violence and widespread impunity and displacement. There are currently 2.5 million displaced people in the region. On 16 November, OCHA’s Khartoum office confirmed that at least 100,000 people had been displaced in Darfur in 2015.
Intense fighting took place between Sudanese government forces and rebels between December 2014 and June 2015, which weakened the rebel forces. However, such clashes declined after June as government forces “maintained an operational pause during the rainy season”, according to Assistant Secretary-General for Peacekeeping Operations Edmond Mulet in his 28 October briefing to the Council on the AU/UN Hybrid Operation in Darfur (UNAMID). (Mobility is inhibited during the rainy season, making it more difficult to undertake military operations.)
Sudanese President Omar al-Bashir—who has been indicted by the ICC for war crimes, crimes against humanity and genocide—attended the AU Summit in South Africa, a state party to the Rome Statute establishing the ICC, from 13 to 15 June without being apprehended. When civil society organisations filed a motion in court for his arrest and extradition to the ICC, the High Court of South Africa issued an interim order that he could not leave the country while the issue was pending. Nevertheless, the government allowed Bashir to hastily depart the country. As a state party to the ICC Statute, South Africa had the obligation to arrest Bashir.
Bensouda last briefed the Council on the court’s work regarding Darfur on 29 June. She emphasised that investigations by her office into the alleged crimes in Darfur continued, although “not at the pace or intensity we would have liked”, due to limited resources and the heavy caseload of the court. Bensouda reiterated that there was “lack of support and follow-up from the Council” for her office’s work on Darfur, a point she had made in prior briefings., She noted that at present her “Darfur team’s activities have had to be limited to monitoring and documenting incidents as they occur and to conducting witness interviews where possible and necessary”.
Human Rights-Related Developments
The UN Committee on Economic, Social and Cultural Rights published its concluding observations on the second periodic report of Sudan on 27 October (E/C.12/SDN/CO/2). The Committee’s findings note with concern that the National Human Rights Commission is not in full compliance with the principles relating to the status of national institutions for the promotion and protection of human rights; that significant revenue gained from the exploitation of natural resources has not led to tangible progress in the realisation of economic, social and cultural rights; and that discriminatory provisions affecting women, religious minorities and lesbian, gay, bisexual, transgender and intersex persons are still in force. The findings also highlighted the plight of internally displaced persons, particularly limited access to basic services, including in camps.
The underlying issue is the Council’s inability to follow up on its referral of the situation in Darfur and to pressure relevant states to abide by their obligations to cooperate with the Court. The Council’s gridlock on this issue led Bensouda to say during her 12 December 2014 briefing to the Council: “In the almost ten years that my Office has been reporting to the Council, no strategic recommendation has ever been provided to my Office, and neither have there been any discussions resulting in concrete solutions to the problems we face in the Darfur situation”.
There are several options that the Council could consider with respect to the ICC, including:
formally acknowledging the ICC’s finding of non-compliance by Sudan from March (as well as responding to the other outstanding communications from the ICC to the Council);
threatening appropriate measures against Sudan and against relevant state parties for a failure to adhere to their obligations under the Rome Statute; and
holding an informal interactive dialogue or an Arria-formula meeting with the Office of the Prosecutor to constructively discuss next steps.
Another option would be for the Council to consider a one-year deferral of the Darfur situation under article 16 of the Rome statute, in keeping with the AU’s longstanding position on this matter. It could be argued that the Council’s unwillingness to follow up on the implementation of the ICC warrants to date has amounted to a de facto deferral of the situation in Darfur.
There are strong differences of perspective among Council members regarding the work of the ICC in Darfur, which makes it difficult for the Council to take constructive action on this issue. The P3—including the US, which is not a state party to the ICC—and several others have been very supportive of the Court’s efforts in Darfur, while expressing strong concerns about impunity in region. Conversely, other Council members, such as Angola, Russia and Venezuela, have argued that the ICC’s pursuit of Bashir has undermined the search for peace and reconciliation in the region.
Ten Council members have ratified the Rome Statute—Chad, Chile, France, Jordan, Lithuania, New Zealand, Nigeria, Spain, the UK and Venezuela—although this includes African members, wary of what they believe is the ICC’s targeting of African states. Five members—Angola, China, Malaysia, Russia and the US—have not ratified the Rome Statute.
Perceptions of the government of Sudan and the situation in Darfur vary among Council members. Several are highly critical of the government of Sudan for contributing to the instability in Darfur, frequently referring to human rights violations committed by government forces, the impunity for these violations and the lack of cooperation by the government with UNAMID. Countries such as Chad, China and Russia tend to be less critical of the government. In a meeting on Darfur under “any other business” on 14 October, Chad reportedly cautioned against systematically blaming Sudan for the problems in the region. China and Russia often note the ways they believe that Sudan tries to promote reconciliation in Darfur. Furthermore, Russia has argued in favour of debt relief and an end to bilateral economic sanctions against Sudan, which it believes creates economic instability in the region, thus fuelling the conflict.
The UK is the penholder on Darfur, while Venezuela is the chair of the 1591 Sudan Sanctions Committee.
UN DOCUMENTS ON DARFUR
|Security Council Resolutions|
|29 June 2015 S/RES/2228||This was a resolution renewing the mandate of UNAMID for an additional year.|
|31 March 2005 S/RES/1593||This resolution referred the situation in Darfur to the International Criminal Court.|
|25 September 2015 S/2015/729||This was a Secretary-General’s report on UNAMID.|
|Security Council Meeting Records|
|28 October 2015 S/PV.7545||This was a briefing on Darfur.|
|29 June 2015 S/PV.7478||ICC Prosecutor Fatou Bensouda provided the semi-annual briefing on the Court’s work with respect to Darfur.|
|12 December 2014 S/PV.7337||This was the semi-annual briefing on the ICC’s work in Darfur.|
|Security Council Letter|
|20 March 2015 S/2015/202||This was a letter transmitting the ICC’s Pre-Trial Chamber II’s finding of non-compliance.|