posted on Thu 11 Dec 2014 3:37 PM
ICC Prosecutor Briefing on Darfur

Tomorrow morning (12 December), ICC Prosecutor Fatou Bensouda is scheduled to provide the semi-annual briefing to the Council on the Court’s work with regard to Darfur. This will mark the 20th report of the ICC prosecutor to the Council since the adoption of resolution 1593 (31 March 2005), which referred the situation in Darfur to the ICC and invited the prosecutor to “address the Council within three months of the date of adoption of this resolution and every six months thereafter…”.

Bensouda is likely to note that since her last briefing in June, President Omar al-Bashir of Sudan, who has been indicted by the ICC for genocide, war crimes and crimes against humanity, has travelled to several states—Qatar (July), Saudi Arabia (September), Egypt (October), and Ethiopia (November)—none of which arrested and surrenderred him to the ICC, in spite of requests by the Court to do so. Bensouda may also update Council members on the case of Abdallah Banda, a Justice and Equality Movement rebel leader accused of war crimes by the ICC for orchestrating the 29 September 2007 attack in Haskanita, North Darfur that resulted in the deaths of 12 AU peacekeepers. With the defence arguing that Banda is unwilling to attend the trial, the court now must make a decision on next steps, including a potential arrest warrant.

Regarding the continuing failure of Sudan to execute arrest warrants for al-Bashir and Defence Minister Abdel Rahim Hussein, Bensouda may note that her office will in the near future file a motion with the pre-trial chamber asking for a formal non-cooperation finding against Sudan. If the pre-trial chamber grants this request, the Court will inform the Council of this finding. It should be noted that the Court has previously issued a non-cooperation decision with respect to Sudan. On 25 May 2010, the ICC informed the Council of its non-cooperation finding against Sudan for not executing arrest warrants for two ICC indictees, Ahmed Harun, the former Minister of State for Humanitarian Affairs, and Ali Kushayb, a former Janjaweed leader. This has not had any impact on the Sudanese government’s actions. One possible Council action to pressure the Sudanese government could be to impose targeted sanctions on those indicted by the ICC, but given the current dynamics in the Council on this issue, there is unlikely to be any action taken.

Beyond the work of the Court, Council members will likely be interested in Bensouda’s general assessment of the situation in Darfur. It is likely that she will paint a bleak picture of the current security and humanitarian situation, themes that may be reiterated by some Council members in their interventions. Aerial bombardments, inter-communal violence, human rights abuses by the government affiliated Rapid Support Forces, sexual violence, large scale displacement, and attacks on AU/UN Hybrid Operation in Darfur (UNAMID) peacekeepers and humanitarian workers are among the many issues that may be raised during the meeting. All of these issues highlight the devastating impact that the Darfur conflict continues to have on civilians, an ongoing source of serious concern for many Council members.

One particular incident that has garnered significant attention in the Council of late that may be raised by the Prosecutor and some members tomorrow is the alleged mass rape of some 200 women and girls in the village of Thabit, North Darfur, at the end of October. The Prosecutor might underscore the environment of intimidation that has been created by the Sudanese government with regard to efforts to investigate the rape allegations. A UNAMID team was allowed to visit Thabit only on 9 November, after Sudan refused to allow access for several days. The team could not substantiate the allegations of rape, but it has been argued that the heavy presence of Sudanese security forces in Thabit during the visit prevented people in the village from speaking their minds. The government of Sudan has rejected subsequent requests for the mission to revisit the village. The alleged rapes in Thabit were discussed by Council members during consultations on UNAMID on 4 December. Apparently, this was a contentious topic, with some members emphasising the importance of further investigations while at least one member questioned the veracity of the allegations.

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 any constructive action on this issue. The P3 and several others have been very supportive of the Court’s efforts, while expressing strong concerns about impunity in Darfur. On the other hand, several African states, including those on the Council, have viewed the ICC as a political instrument exclusively focused on Africa, and questioned whether its pursuit of justice complements the pursuit of peace. At the June briefing of the ICC prosecutor, Rwanda highlighted the AU position calling for an article 16 deferral of the proceedings against al-Bashir as a means to promote the search for peace, while Chad, which is a state party to the ICC and has hosted Bashir in the past without executing the ICC’s warrant for his arrest, similarly called for “understanding on the part of the Court and the States parties for the non-compliance with certain procedures” (S/PV.7199). China and Russia, which are not state parties to the ICC, have generally supported the AU position on the ICC.

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