Expected Council Action
In July*, the Security Council will receive the semi-annual briefing of the ICC Prosecutor, Karim Asad Ahmad Khan, on the ICC’s Darfur-related activities.
*The briefing has been moved to August per the ICC Prosecutor’s request.
Key Recent Developments
Sudan is not a state party to the Rome Statute of the ICC. The Security Council referred the situation in Darfur, Sudan, to the ICC through the adoption of resolution 1593 of 31 March 2005. (Algeria, Brazil, China, and the US abstained on the resolution.) The Council invited the ICC Prosecutor to update it every six months on actions taken pursuant to resolution 1593. The investigations regarding Darfur focus on allegations of genocide, war crimes and crimes against humanity committed in Darfur since 1 July 2002.
Ali Muhammad Ali Abd-Al-Rahman (also known as Ali Kushayb) was transferred to the ICC’s custody on 9 June 2020 after he surrendered voluntarily in the Central African Republic. On 9 July 2021, Pre-Trial Chamber II confirmed all 31 charges against him, including war crimes, crimes against humanity, murder, rape, torture, and attacks against the civilian population in Wadi Salih and Mukjar, Darfur.
More than 15 years after the Security Council referred the situation to the ICC, the first trial opened on 5 April with the case of Ali Kushayb. In a 6 April statement, Khan said that this was “precisely the kind of case for which [the] ICC was created”, adding that with this case, he was confident that “the first few drops of justice will land on what has hitherto been a desert of impunity in Darfur”.
Four ICC arrest warrants remain outstanding against former President Omar Al Bashir, Ahmad Muhammad Harun, Abdel Raheem Muhammad Hussein and Abdallah Banda Abakaer Nourain. Since July 2020, Al Bashir has been on trial in Sudan for charges relating to the 1989 military coup that brought him to power, including charges of undermining the constitutional order and the use of military force to commit crimes. Harun and Hussein have been under arrest in Khartoum since April 2019. Banda remains a fugitive from the Court, and his whereabouts are unknown. The Office of the Prosecutor is in an ongoing dialogue with the government of Sudan aimed at ensuring accountability for the ICC suspects and justice for the victims in Darfur. Sudan remains under an obligation to surrender the four remaining suspects in the Darfur situation to the Court, pursuant to resolution 1593 and the subsequent orders of ICC judges.
Regarding the current situation in Darfur, the Secretary-General’s most recent report on Sudan dated 17 May said that “levels of insecurity, including intercommunal clashes, armed conflict and criminality continued to pose a significant challenge for the authorities” and that escalating violence in Darfur had “resulted in a growing number of fatalities and significant new forced displacements”. It noted some progress on the start-up of the Darfur Permanent Ceasefire Committee as well as progress in relation to the joint security-keeping force in Darfur, which was agreed to in the Juba Peace Agreement and is planned to number 12,000 troops. During the reporting period, approximately 2,000 signatory armed movement personnel assembled to be trained by the Sudanese Armed Forces, according to the report.
Khan last briefed the Council on 17 January. He referred to the memorandum of understanding signed with the Sudanese government in August 2021 in relation to the Ali Kushayb case and the four cases for which ICC judges have issued warrants. He noted that since the October 2021 military coup, “the landscape changed, and that has not been particularly helpful”. He informed the Council that in December 2021, Sudanese military leader General Abdel Fattah al-Burhan had reassured members of his Office that the memorandum of understanding remained valid, “that he was looking at cooperation”, and that it was essential to have justice for the victims in Darfur. Khan noted that the challenge now was to make sure those assurances were translated into “concrete, tangible partnerships and accountability”. In this regard, he called for safe and secure access to all parts of Sudan, including to archives and mass graves, as required by the memorandum of understanding, resolution 1593, and the Juba Peace Agreement.
Human Rights-Related Developments
During its 50th session, the Human Rights Council (HRC) held an enhanced interactive dialogue on 15 June on the report of the High Commissioner for Human Rights on the situation of human rights in Sudan (A/HRC/50/22). The report, which covers 25 October 2021 to 10 April, concluded that the coup had undermined many of Sudan’s achievements under the transitional government in improving respect for and protection of human rights, including in the areas of legal and institutional reform, transitional justice, civic space, equality and non-discrimination, and women’s rights. It called the pattern of human rights violations since the coup “extremely worrying”. In relation to Darfur, it said that increased intercommunal violence and a lack of state capacity to fill the gap left by the departure of the AU/UN Hybrid Operation in Darfur (UNAMID) “continue[d] to expose serious gaps in the protection of civilians”. On 30 June, the HRC adopted the final outcomes of the Universal Period Review of Sudan (A/HRC/50/16).
Women, Peace and Security
On 23 May, the Informal Experts Group (IEG) on Women, Peace and Security met to discuss the situation in Sudan. IEG members were briefed by Deputy Special Representative for Sudan Khardiata Lo N’Diaye. One of the issues discussed during the meeting was women’s participation in the meetings of the trilateral cooperation mechanism with political parties and armed groups. (In May, the mechanism—which consists of the UN, the AU and the Intergovernmental Authority on Development [IGAD]—launched indirect intra-Sudanese talks to end the political crisis.) The three organisations have called on all stakeholders to ensure that women constitute at least 40 percent of the delegations to the meetings with the trilateral cooperation mechanism. The 23 May meeting was the third time the IEG discussed the situation in Sudan. Previous meetings were held on 14 December 2020 and 16 December 2019.
On 21 June, the chair of the 1591 Sudan Sanctions Committee, Ambassador Harold Adlai Agyeman (Ghana), provided the quarterly briefing on the committee’s work.
Key Issues and Options
An underlying key issue for the Council is how to promote justice and accountability for past atrocities committed in Sudan. A related issue for the Council is how to support enhanced cooperation between the ICC prosecutor and the government of Sudan.
In addition to receiving Khan’s briefing, Council members supportive of the ICC’s work could consider holding an informal meeting with the prosecutor to facilitate a dialogue on ways in which his Office could strengthen its cooperation with the Sudanese government.
Council members could also hold a joint press stakeout encouraging improved relations between the Sudanese government and the ICC.
Council and Wider Dynamics
The Council is divided on the work of the ICC. Albania, Brazil, France, Gabon, Ghana, Kenya, Ireland, Mexico, Norway, and the UK are states parties to the Rome Statute of the ICC, while China, India, Russia, the UAE, and the US are not. These distinctions, however, do not necessarily reflect how members view the Court’s work on Sudan. For example, the US, which is not a party to the Rome Statute, has long supported the ICC’s efforts with regard to Sudan. Among the wider membership of the UN, African countries have long expressed concerns about the Court’s disproportionate focus on Africa.
At the last semi-annual briefing on 17 January, a range of views were expressed on the ICC’s work in relation to Darfur. Gabon emphasised its full support for the efforts of the Prosecutor and his Office. In its statement, Ghana expressed hope “for a balanced and global approach to the investigation of crimes within the jurisdiction of the Court, devoid of the perceived region-centric approach”. Ireland, noting that it remains a strong advocate for the work of the Court and the Prosecutor’s Office in the Sudan, said that the violence in Darfur today was a reminder of the need to break the cycle of impunity”. Mexico expressed its support for the work of the Office of the Prosecutor and the ICC and said that the impact of last October’s coup on cooperation with the Court was “of great concern”. Russia expressed the view that “against the backdrop of ongoing political instability, the main objective is national reconciliation”, adding that the Sudanese “will be able to deal with [the provision of justice] on their own.” The UAE emphasised its commitment to the sovereignty, independence, territorial integrity and national unity of Sudan. The UK (the penholder on Sudan) expressed regret about the setback due to the military coup and urged the Sudanese authorities to cooperate fully with the Court. The US expressed its support for the ICC’s efforts to advance accountability and welcomed “the Prosecutor’s position that situations referred by the Council must be given greater prioritization in his Office’s work”.
The UK is the penholder on Sudan, and the US is the penholder on Sudan sanctions. Ambassador Harold Adlai Agyeman (Ghana) chairs the 1591 Sudan Sanctions Committee.
UN DOCUMENTS ON SUDAN
|Security Council Resolution|
|31 March 2005S/RES/1593||This resolution referred the situation in Darfur to the International Criminal Court.|
|17 May 2022S/2022/400||This was the 90-day report on UNITAMS.|
|Security Council Meeting Record|
|17 January 2022S/PV.8948||This was the semi-annual briefing by the ICC prosecutor on the court’s work in Darfur.|