By Sophia Eckert, Law & Policy, International Justice Project
On June 5, 2012, Chief Prosecutor of the International Criminal Court (“ICC”), Luis Moreno Ocampo, delivered his final report to the U.N. Security Council before the end of his term and the beginning of the new Prosecutor’s, Fatou Bensouda’s, term. Specifically, he briefed the Council on the situation in Darfur and advocated for the prompt execution of the arrest warrants issued by the ICC against four Sudanese officials between 2007 and 2012—Ahmad Haroun, Sudan’s former Minister of State; Ali Kushayb, a leader of the Janjaweed militia; Abdelrahim Mohamed Hussein, the Minister of Defense; and the Sudanese President Omar Hassan Ahmad Al Bashir, all of whom are accused of several counts of crimes against humanity and war crimes. President Bashir is additionally charged with genocide.
Ocampo commenced the briefing by requesting that the Security Council take action to effectuate the arrest warrants in the Darfur cases. He reminded the Council that it had referred the Darfur situation to the ICC in 2005 through Resolution 1593, a cornerstone of which had been the immediate institution of action against the alleged perpetrators. He declared that the Office of the Prosecutor had gathered a wealth of evidence and was prepared to discuss the case in a proper ICC court proceeding. According to Ocampo, the evidence showed that the indictees’ guilt in the atrocities of Darfur exceeded the mere execution of their official function, but rather, constituted an active participation in the atrocities committed in Darfur. Therefore, he stated that they should be held accountable for the charged crimes.
Regarding the genocide charge against President Bashir, the Chief Prosecutor once more emphasized that ten judges of the Pre-Trial Chamber and the Appellate Court of the ICC jointly agreed that Sudan’s president was acting with the intent to eradicate the Fur, Masalit, and Zaghawa tribes. He highlighted six factors in President Bashir’s strategy:
- Threatening the international community with the commission of new crimes in other areas of Sudan;
- Denying the present crimes and falsely attributing them to rebel groups, as well as natural causes such as droughts;
- Forcing the international community into endless negotiations to get access to displaced persons;
- Continuously making empty promises of peace;
- Announcing judicial intervention in Sudan without any signs of actual implementation of such intervention; and
- Openly and publicly defying the Security Council’s authority.
Finally, Ocampo called on the Security Council to end the ongoing impunity by finding ways to execute the arrest warrants. He warned that a failure to arrest would signify a direct challenge to the Council’s authority. As a possible solution, Ocampo suggested that the Council ask Member States and regional organizations to carry out the arrests. He emphasized that, by executing arrests, “The victims will receive a clear message: They are not ignored. And the perpetrators will receive a clear message: There will be no impunity.”
Sudan’s Ambassador to the UN, Mr. Daffa-Alla Elhag Ali Osman, promptly responded to Ocampo’s statements and remarked that Sudan’s participation in the Security Council briefing did not signify an acceptance of the ICC’s authority, but rather, served to rectify the ICC’s allegations. The Sudanese Representative criticized any cooperation between the Security Council and the ICC on the ground that it would drastically undermine the independence of the ICC and impede international justice. He alleged that the ICC and, in particular, the Chief Prosecutor were launching a political campaign against Sudan. In his opinion, regional and international involvement was unwarranted since the Darfur situation was a purely internal conflict and did not threaten regional or international security. Referring to a quote by former Secretary of State Condoleezza Rice, Osman claimed that the Chief Prosecutor was acting like “the president of the world” who issued instructions to the Security Council and did not feel bound by the UN Charter.
Furthermore, Osman vehemently denied the genocide charges against President Bashir and claimed that there is no longer any violence in Darfur, which is disputed by reports from Darfurians who have recently arrived in the U.S. (For a discussion of the genocide in Darfur, see generally, HUMAN RIGHTS WATCH, Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan, May 2004 Vol. 16 No. 6(A); Genocide continues in Darfur – Rice; Powell Declares Genocide in Sudan, BBC News (Sept. 9, 2004); French FM Speaks of Darfur Genocide for First Time, Sudan Tribune (Sept. 6, 2006); Mass Rape Atrocity in West Sudan, BBC Online (March 19, 2004)).
Osman based this assumption on the Doha Document for Peace in Darfur (DDPD), which was finalized in May 2011, in Doha, Qatar, and which establishes the framework for the peace process in Sudan. Although the Sudanese government signed the Darfur Peace Agreement on July 14, 2011 with the Liberation and Justice Movement—a Sudanese rebel group involved in the Darfur conflict—there are doubts about the effect of the agreement in the region, in particular since the Sudanese government has failed to provide any funding for the establishment of the Darfur Development Bank (“DDB”), which is seen as part of rebuilding the region and effectuating resettlement. Osman also warned the Security Council to abstain from “pouring fuel into the fire” by executing the ICC’s arrest warrants and advised the Council to assist the peace process initiated through the Doha Document. He criticized Ocampo for focusing on the past and “beating the drums of war” instead of taking the “right and optimistic path.”
The Member States of the Security Council displayed mixed opinions on whether the Council should act to help implement the ICC’s arrest warrants or whether a political solution was the appropriate action. On one hand, the United Kingdom, Germany, France, the U.S., Portugal, Colombia, and Togo strongly advocated for further action to support the ICC’s proceedings through the Security Council. In particular, Germany reminded the Members of the Rome Statute that it is their obligation as signatories to execute the arrest warrants. The U.S. further encouraged all countries to cease providing any form of help to Sudan. Guatemala, which acceded to the Rome Statute in April 2012, indicated that the Security Council and the ICC should collaborate but simultaneously acknowledge the efforts undertaken on account of the Doha documents.
On the other hand, Morocco, South Africa, Azerbaijan, Russia, India, and China opposed involvement of the Security Council with the ICC’s arrest warrants. Instead, they supported the idea of political assistance to the peace process in Sudan. More specifically, South Africa, as a member state to the Rome Statute, reaffirmed its strong commitment to the mandates of the Rome Statute but advised against using UNAMID or regional bodies to execute the arrests since this would undermine the trust of the citizens of the African region in these authorities. Russia, China, and India spoke out strongly against action by the Security Council. Russia stated that the investigation in Darfur must be objective and advocated for resolution of the conflict through negotiations and the peace process. India, whose acceding to the Security Council as non-permanent member was strongly supported by Sudan in 2011, condemned the violence in Darfur. However, the Indian representative referred to UNAMID and the African Union to solve the conflict and called on all parties to the conflict to join the peace process.
China’s Ambassador, H.E. Li Baodong, also claimed that the situation in Darfur was easing and firmly advocated for the Security Council’s support of the Doha documents. Regarding the ICC’s arrest warrants, the Chinese Ambassador stated that he hoped the ICC’s pressure will help move along the political peace process and that the ICC will respect its role as a tool in this process. China has backed the Sudanese government’s actions in Darfur through different means, and China’s role in this briefing was particularly significant since China holds the presidency over the Security Council in June 2012. China can thus call meetings for the Council, set the agenda for the month, decide subjects for the Council to hear, and issue statements that represent the Council’s opinion. As a result, China’s view of the situation in Darfur is crucial.
After the Member States spoke, Ocampo was again permitted to take the floor. He responded to Osman, the Sudanese representative, warning him that his denial could be regarded as contributing to the crime of genocide and that the Office of the Prosecutor was obliged to and may de facto conduct an investigation. Osman was also permitted to take the floor a second time and respond to Ocampo. He referred to Ocampo’s statements as “statements of a terrorist who is trying to shut the voice of justice” and “rejectionable conduct,” which proved that he was overly emotional and lacked credibility. Osman claimed that Ocampo was using the Rome Statute to threaten diplomats and undermine international justice.
Overall, Ocampo’s last briefing before the Security Council reaffirmed the split in the international community regarding the ICC. Unfortunately, this lack of consensus could undermine the effective workings of the ICC. A disregard of the ICC arrest warrants in the Darfur cases calls into question the legitimacy of decisions by ICC judges—decisions based on an objective and thorough weighing of evidence in the Darfur cases. Failure by States to execute these arrest warrants sends the wrong signal to the world: That accountability for the most heinous crimes can be avoided as long as the alleged perpetrators and their supporters exert enough political pressure. This, in turn, could negate the deterrent power of the ICC.
It is crucial that the Security Council and the international community act together to send a clear message that impunity will no longer be tolerated and permitted. Additionally, as Ocampo highlighted, executing the arrest warrants against President Bashir and the other indictees would send a message to all Darfurian victims that they are not forgotten and that they will see justice done. We thus continue to request that the Security Council take appropriate action in the Darfur cases to end the present pattern of noncooperation with the ICC and ensure that President Bashir, Haroun, Hussein, and Kushayb are brought to justice.
6778th meeting, Security Council, Reports of the Secretary General on the Sudan (International Criminal Court and Darfur), UN Webcast.
Daffa-Alla Elhag Ali Osman (Sudan), Security Council Media Stakeout, UN Webcast.
To read the IJP’s Letter to the UNSC on noncooperation, click here.