ICC Prosecutor to Brief Council on Darfur
On Monday (29 June), ICC Prosecutor Fatou Bensouda is expected to give her semi-annual briefing to the Security Council on the court’s work in Darfur. This briefing takes place at a critical time for Darfur, with the Council expected to adopt a resolution renewing the mandate of the AU/UN Operation in Darfur (UNAMID) early next week, amidst high-levels of violence in parts of the region and discussion of an exit strategy for the mission.
Monday marks the first time that the Prosecutor will address the Council on Darfur since 12 December 2014, when she declared that the ICC was suspending its investigations in Darfur and would apply its limited resources elsewhere due to the Council’s inaction on this issue. It will provide an opportunity for Bensouda to clarify what the court’s engagement on Darfur has been over the past six months and will entail in future. The prosecutor may clarify that while the court has placed priority on other situations where there has been progress in judicial proceedings, it has not in fact ended its work in Darfur. She may note that the court continues to monitor alleged crimes in Darfur, and that it will prosecute suspects when they are apprehended and handed over. (Sudanese President Omar al-Bashir, Sudanese Defence Minister Abdelrahim Mohamed Hussein, governor of North Kordofan state Ahmed Harun, former Janjaweed leader Ali Kushayb, and rebel figure Abdallah Banda are wanted by the court.)
Bensouda, as well as Council members supportive of the Court’s work in Darfur, may express concern that Bashir continues to travel abroad with impunity. Most recently, 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, from 13-15 June without being apprehended. (South Africa was obligated to arrest Bashir as a state party to the Statute; Bashir had previously travelled to six ICC state parties without being arrested: Chad, Democratic Republic of Congo, Djibouti, Kenya, Malawi and Nigeria.) In 2015, in addition to South Africa, he has been to several countries (Egypt, Ethiopia, Saudi Arabia and the UAE) without being arrested. None of these states are parties to the Rome Statute; however, although resolution 1593, which referred Darfur to the ICC, recognises that states not party to the Rome Statute have no obligation under the Statute, it does urge them to cooperate fully with the Court with regard to the resolution.
Another matter the Prosecutor may raise during the meeting is the Council’s lack of response to the ICC Pre-Trial Chamber’s 9 March decision in favour of her office’s request for a finding of non-compliance against Sudan. The decision, transmitted to the Council on 20 March, found that Sudan had failed to cooperate with the Court with respect to its requests for the arrest and surrender of Bashir and referred the matter back to the Council for it to take “appropriate measures”. For several months, there have been discussions among the ten Council members who are state parties to the ICC on how to formulate a response. However, they have not been able to come up with a mutually acceptable position. (Council members will also be aware that earlier today the ICC pre-trial chamber found that Sudan had failed to arrest Abdel Raheem Muhammad Hussein and decided to refer the finding of Sudan’s non-cooperation to the Council.)
Bensouda—as well as several Council members—is expected to underscore how the climate of impunity contributes to the deterioration of the security and humanitarian situation in Darfur. As the Secretary-General noted in his recent report on the protection of civilians, “continued fighting in the Darfur region has involved widespread violations of IHL and human rights.” Concerns about targeted attacks against civilians, sexual violence, aerial bombardments, and widespread displacement may be raised. Frustration with the lack of accountability in Darfur is a recurring theme underscored by several members, including during the 19 June Arria-formula meeting on the human rights situation in Darfur. (The 19 June meeting was attended by eleven members; Chad, China, Russia, and Venezuela did not participate.)
There are strong divisions on the Council with regard to the ICC’s work in Darfur. The P3 and several others have been supportive of the Court’s efforts in Darfur, expressing strong concerns about impunity in Darfur. On the other hand, Russia and China have generally supported the AU position that the ICC is a political instrument unfairly targeting Bashir. Among the African Council members, Chad and Nigeria are both state parties to the ICC, but have hosted Bashir in the past without arresting him. Ten Council members have ratified the Rome Statute (Chad, Chile, France, Jordan, Lithuania, New Zealand, Nigeria, Spain, the UK and Venezuela) and five have not (Angola, China, Malaysia, Russia and the US).