Expected Council Action
In January 2024, the Security Council will receive the semi-annual briefing of ICC Prosecutor Karim Asad Ahmad Khan on the ICC’s Darfur-related activities.
Background and 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 on 31 March 2005. (Algeria, Brazil, China, and the US abstained on the resolution.) The Council requested 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.
More than 17 years after the Council’s ICC referral, the first trial opened on 5 April 2022 with the case of Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), which is ongoing. Abd-Al-Rahman, reportedly a former leader of the Janjaweed militia, is accused of 31 counts of war crimes and crimes against humanity allegedly committed between August 2003 and approximately April 2004 in Darfur. The prosecution presented evidence from 81 witnesses during the trial and concluded its case on 28 February 2023. Subsequently, the defence for Abd-Al-Rahman made its opening statement on 19 October before Trial Chamber I of the ICC.
Four arrest warrants issued by the ICC remain outstanding—against Omar Al Bashir, former Sudanese President; Ahmad Muhammad Harun, former Sudanese Minister of State for the Interior; Abdel Raheem Muhammad Hussein, former Sudanese Minister of National Defence; and Abdallah Banda Abakaer Nourain, commander-in-chief of the Justice and Equality Movement at the time of the warrant. Pursuant to resolution 1593 and the subsequent orders of ICC judges, Sudan remains under an obligation to surrender the four remaining suspects in the Darfur situation to the court.
Sudan continues to grapple with the dire political, security and humanitarian consequences of the conflict that erupted on 15 April 2023 between the Sudanese Armed Forces (SAF), headed by General Abdel Fattah al-Burhan, Sudan’s military leader and chairperson of the Transitional Sovereign Council, and the Rapid Support Forces (RSF), a paramilitary group led by General Mohamed Hamdan Dagalo (known as Hemeti). The fighting, which was initially centred around Khartoum, has steadily engulfed several parts of the country, including Darfur, White Nile, Al Jazirah, and Kordofan states. The inter-ethnic component of the fighting, particularly in Darfur, has raised alarm among several Council members. Some members appear to be concerned about the potential for inter-communal fighting to spin out of control, recalling the conflict in Darfur in the 2000s that claimed the lives of approximately 300,000 people.
The Secretary-General’s most recent report on the UN Integrated Transition Assistance Mission in Sudan (UNITAMS), dated 13 November 2023, expressed alarm about the deteriorating human rights and protection situation in the country. During the period covered by the report, UNITAMS documented 345 alleged incidents of violations and abuses of human rights and violations of international humanitarian law affecting 2,672 victims, including 158 women and 105 children. The report noted that incidents of conflict-related sexual violence (CRSV), particularly rape and gang rape, continued to be a significant factor in the hostilities. As at 31 October 2023, the UN Joint Human Rights office had documented a total of 53 incidents of CRSV affecting at least 106 victims, including 85 women and 10 children.
The Secretary-General’s 13 November 2023 report also highlighted the impact of the hostilities on the administration of justice in the country. Among other things, the report said that justice institutions in Khartoum and Central, North, South, and West Darfur States had ceased to function, and the absence of justice officials because of the ongoing conflict, notably in South Kordofan and East Darfur States, significantly limited the capacity of the formal justice sector to administer judicial proceedings.
In a 6 December 2023 statement, US Secretary of State Antony Blinken announced that he had determined that members of the SAF and the RSF had committed war crimes in Sudan. He further determined that members of the RSF and allied militias had committed crimes against humanity and ethnic cleansing. This determination, Blinken said, “provides force and renewed urgency to African and international efforts to end the violence, address the humanitarian and human rights crisis, and work towards meaningful justice for victims and the affected communities that ends decades of impunity”.
According to the ICC Prosecutor’s latest report—submitted to the Council on 4 July 2023 pursuant to resolution 1593—alleged war crimes and crimes against humanity committed within the ICC’s jurisdiction as part of the current fighting may be subject to investigation and prosecution by the ICC. The report added that, as part of its preliminary investigations, the Office of the Prosecutor (OPT) was closely tracking reports of extrajudicial killings, burning of homes and markets, and looting in Geneina, West Darfur, as well as the killing and displacement of civilians across several locations in Darfur. The OPT was also focusing on allegations of sexual and gender-based crimes, including mass rapes and alleged reports of violence against children.
With respect to the investigations regarding other individuals subject to arrest warrants in the Darfur situation, the prosecutor’s report noted that his office’s work had been limited due to lack of cooperation from the Sudanese government. It added that three suspects—Bashir, Hussein, and Harun, who were in custody in Kober prison in Khartoum until the outbreak of fighting in April 2023—had been released.
The report also noted progress in several key areas, including:
- access to information relevant to the investigations with the support of third member states and other organisations;
- support for a Darfur-related investigation by national authorities of a third member state; and
- the launch of a dedicated online appeal for information regarding the situation in Darfur since 2003.
Women, Peace and Security
Hala Al-Karib—the regional director of the Strategic Initiative for Women in the Horn of Africa, a network of about 100 women’s organisations from across the region—briefed the Council during the 25 October 2023 annual open debate on Women, Peace and Security. She stressed that the conflict in Sudan is the result of decades of violence against civilians that “has impacted nearly every aspect of women’s lives”. Al-Karib described several reports of atrocities, including conflict-related sexual violence, perpetrated by the RSF while noting that “[b]oth the SAF and RSF have committed serious violations of international human rights and humanitarian law”. Emphasising that Sudanese women and civil society are critical to peace-making efforts, Al-Karib urged the Council to demand an immediate cessation of hostilities and a comprehensive ceasefire in Sudan and called “for the meaningful representation of women, including feminist movements, at 50 percent”. She also said that the Council should call on the parties to “ensure safe and unhindered humanitarian access” and condemn “all attacks and threats against women human rights defenders and peace activists”.
Human Rights-Related Developments
In a 30 November 2023 statement, a group of UN experts expressed alarm about the “escalation of violence in Sudan, particularly sexual violence committed in the conflict, primarily by the RSF”. The statement said that gender-based violence, including sexual violence, is being used as “a tool of war to subjugate, terrorise, break and punish women and girls, and as a means of punishing specific communities targeted by the RSF and allied militias”. The statement further noted that the incidents of violence are no longer concentrated in Khartoum or Darfur, but have spread to other parts of the country, such as the Kordofan region. The statement warned that victims and survivors of violence and sexual exploitation, in particular children, may suffer long-lasting traumatic impacts on their physical, mental, and sexual health and development. In this regard, the statement called for ensuring access to adequate support services as well as to gender-sensitive reparations for the harm and violations suffered by the victims. The statement urged that “[t]he world must not turn a blind eye to the atrocities and large-scale sexual violence unfolding in Sudan”.
In a 18 December 2023 statement, the President of the Human Rights Council (HRC), Václav Bálek announced the appointment of three independent members to the international fact-finding mission for Sudan: Mohamed Chande Othman, former chief justice of Tanzania; Joy Ezeilo, a Nigerian senior advocate; and Mona Rishmawi, former head of Damascus office for the UN special envoy for Syria. The fact-finding mission was established by the HRC on 11 October 2023, through the adoption of resolution 54/2, with a mandate to investigate and establish the facts, circumstances and root causes of all alleged violations of human rights and international humanitarian law, including those committed against refugees, and related crimes in the context of the conflict that started on 15 April. The mission is also mandated to collect, consolidate and analyse evidence of such violations and abuses and make recommendations, in particular on accountability measures. The resolution called on the mission to provide an oral update on its work during HRC’s 56th session and to present a comprehensive report on its findings at HRC’s 57th session. The resolution also called on the mission to submit this report to the UN General Assembly at its 79th session. (For more, see the Sudan brief in our November 2023 Monthly Forecast.)
Key Issues and Options
An underlying key issue for the Council is how to promote justice and accountability for past atrocities committed in Darfur, as well as the ongoing violations of international humanitarian law and human rights law by the Sudanese warring parties across the country.
Another key issue for the Council is how to enhance cooperation between the ICC prosecutor and the Sudanese government.
In the upcoming Council meeting on Sudan, several Council members, including the P3 (France, the UK, and the US) and like-minded members, may welcome the establishment of the independent international fact-finding mission for Sudan by the Human Rights Council during its 54th session and the appointment of its members. (For more, see the Syria brief in our November 2023 Monthly Forecast.)
In addition to receiving Khan’s briefing, Council members supportive of the ICC’s work in Sudan could consider requesting a briefing from the UN Special Adviser on the Prevention of Genocide to spotlight the crimes being committed in the conflict.
The Council is divided on the work of the ICC. Ecuador, France, Japan, Malta, Switzerland, and the UK are state parties to the Rome Statute of the ICC. China, Mozambique, Russia, and the US are not. These distinctions, however, do not necessarily reflect how members view the court’s work on Sudan. For instance, the US has long supported the ICC’s efforts with regard to Sudan.
The advent of the five new elected Council members—Algeria, Guyana, Republic of Korea (ROK), Sierra Leone, and Slovenia—in 2024 appears unlikely to change the dynamics around Security Council discussions regarding ICC’s Darfur-related activities. Guyana, ROK, Sierra Leone, and Slovenia, which are state parties to the Rome Statute, are likely to voice support for the ICC’s ongoing investigations in Sudan. On the other hand, Algeria—a signatory, but not a party, to the Rome Statute—has long expressed reservations about what it views as the court’s disproportionate focus on Africa.
At the last semi-annual briefing on 13 July 2023, wide-ranging views were expressed about the ICC’s work in relation to Darfur. Most members welcomed the progress on Abd-Al-Rahman’s trial, while calling on Sudan to cooperate more with the court, including by providing access to key witnesses. Some members, including Ecuador, France, Switzerland, the UK, and the US, also supported Khan’s announcement that alleged war crimes and crimes against humanity committed during the current fighting may be subject to ICC investigation and prosecution. At the same time, Russia expressed the view that the ICC is “an obedient tool in the hands of the West”. Calling the ICC a “politicized entity”, it said that the ICC briefings “have long since turned into a theatre of the absurd”.
Russia’s already negative view of the ICC hardened following the court’s announcement on 17 March 2023 that it had issued arrest warrants for Russian President Vladimir Putin and his commissioner for children’s rights, Maria Lvova-Belova, for allegedly committing the war crime of “unlawful deportation” and “unlawful transfer” of children from Ukraine to Russia.
The UK is the penholder on Sudan, and the US is the penholder on Sudan sanctions.
UN DOCUMENTS ON SUDAN
|Security Council Resolutions
|31 March 2005S/RES/1593
|This resolution referred the situation in Darfur to the International Criminal Court.
|Security Council Meeting Records
|25 October 2023S/PV.9452
|This was the annual open debate on WPS.
|13 July 2023S/PV.9375
|This is the meeting record on the semi-annual briefing on the International Criminal Court (ICC)’s Darfur-related activities.
|13 November 2023S/2023/861
|This document is the Secretary-General’s 90-day report on the situation in the Sudan and the activities of the United Nations
Integrated Transition Assistance Mission in the Sudan.