Peace Consulting

The Prosecutor of the International Criminal Court Prioritises the Darfur Case After Freezing it for 17 Years, Following the Historic Referral of the Security Council Under the Rome Statute

By <b><br>Dr Marta Katz-Turi</b>

Dr Marta Katz-Turi

The new Prosecutor of the International Criminal Court, (“The ICC”) Karim A. A. Khan QC, briefed the Security Council and presented his latest report submitted pursuant to UN Security Council Resolution 1593 (2005) on the situation in Darfur (“The Resolution”).  While the Resolution marked the first time the Security Council referred a situation to the ICC, using its prerogative under the Rome Statute, not much has happened since 2005.

While that landmark referral provided hope, 17 years have now elapsed without any tangible accountability for justice for Darfur’s people. In particular, he recalled, the absence of cooperation on the part of Sudan under the leadership of former Sudan President Omar al-Bashir led the Court’s last Prosecutor, Fatou Bensouda, to hibernate the investigation that lasted 17 years.

Now, Mr. Khan, as the new ICC Prosecutor, decided to prioritize the case, along with the one on Libya, during his mandate, bringing hope for justice to victims.  “Indeed, 17 years without accountability is too long, and the referral cannot remain a never-ending story for the victims or for the Council,” the Prosecutor said. He stressed that victims have been fighting for accountability for the crimes committed against them for nearly two decades.

Reiterating his commitment to work tirelessly in pursuit of a meaningful outcome, he outlined some recent, significant progress achieved by his Office.  On 9 July 2021, he successfully secured confirmation of all 31 charges of war crimes and crimes against humanity against Ali Muhammad Ali Abd-Al-Rahman, also known as Ali Kushayb, a senior leader of the notorious Janjaweed militia in Darfur during 2003 and 2004.  The crimes confirmed against him include murder, rape, torture, attacks on the civilian population, and other serious Rome Statute crimes.  The trial of Mr. Abd-Al-Rahman will commence on April 5, 2022, representing the first-ever International Criminal Court trial stemming from a Security Council referral, in the pursuit of accountability.  He added that the Office of the Prosecutor (“his Office”) is organizing outreach efforts to keep the Sudanese people abreast of those important developments.

Although the Ali Kushayb case is significant, it is just but one case among several.  Four other individuals are currently subject to Court warrants of arrest, and they are large.  Three are currently in Sudanese custody, namely

(1) former Sudan President Omar al-Bashir;

(2) former Minister of Interior Abdel Raheem Muhammad Hussein; and

(3) former Governor of South Kordofan Ahmed Harun.

The fourth individual, former Justice and Equality Movement commander Abdallah Banda, remains at large.

In the case of the latter, he recalled his decision to voluntarily recuse himself pursuant to article 42 (6) of the Rome Statute.  He also cited his decision, soon after taking up his position as Prosecutor in 2021, to initiate a comprehensive review of the Darfur situation, with a particular focus on assessing the strength of evidence in its cases.

He recalled that, due to a variety of factors including Mr. Al-Bashir’s hostility towards the Court, there was almost no cooperation between the Office of the Prosecutor and the Sudanese Government for 17 years, leading his predecessor, Fatou Bensouda, to hibernate the investigation.  As a result, and as the review of the evidence in the Darfur situation made clear, the evidence in several of the Darfur cases must be strengthened in order to be built upon the strongest possible evidential foundations.  His review prompted two immediate actions, namely to increase the resources of the Darfur team and to travel to Sudan to meet with the Government and other stakeholders.  In addition, he appointed a pro bono Special Adviser, attorney Amal Clooney, whose portfolio is devoted solely to Darfur.

He made clear, among other things, that cooperation with the Government of Sudan must improve and investigations must accelerate.  He also stressed that it is not the location of a trial but the impartiality of the justice process that is crucial.  A memorandum of understanding was signed which, for the first time, extended the Government of Sudan’s cooperation with his Office to include all four suspects against whom the Court has issued warrants of arrest.  The Government further agreed to facilitate a full-time Court presence on the ground in Sudan.

Regrettably, he said, the military events witnessed on 25 October 2021 and the ensuing instability in Sudan marked a setback and pose additional challenges to the Court’s work.  Many of its key interlocutors and focal points no longer hold their positions in the Government.  While the Prosecutor’s Office was forced to pause its investigation, his team was able to travel to Khartoum in December 2021 to obtain fresh assurances from Government officials that their work can continue.  “While Sudan remains in a delicate stage of transition, the only option to find a pathway to closure is acceleration,” he said, voicing his hope that he will be able to return there in the coming months.  Reiterating that the cases before the Court are not against Sudan but against individuals and that the Government remains a partner, he repeated his request that his Office is granted safe and secure access to documents, crime scenes and witnesses in the months ahead.

While Sudan remains at a delicate stage of its political transition following its 2018 popular uprising and an October 2021 military coup, accelerated cooperation with the International Criminal Court is the only viable path to ensuring long-delayed justice for the survivors of crimes against humanity in Darfur, the ICC’s top prosecutor told the Security Council today.

As Council members took the floor to share their views, several praised recent strides made by the Court and urged the Government of Sudan — despite the turmoil resulting from the October coup — to redouble its commitment to cooperating with the Prosecutor’s Office. However, several voiced concerns about external actors exerting undue pressure or influence in Sudan, noting that transitional justice arrangements were clearly laid out in the 2020 Juba Peace Agreement and urging Sudan’s partners to give the country space to implement them.

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