Darfur Grave Crimes: ICC conspicuous silence over Sudan’s non-compliance worrisome – Bensouda

“Sadly, my Office’s countless appeals to you for action to address the persistent failure of Sudan to comply with its international obligations have not been heeded,” said ICC Prosecutor Fatou Bensouda, adding that the Council has been “equally consistent in its conspicuous silence over Sudan’s non-compliance with its resolutions.”

Presenting her twenty-third report to the Council on the situation in Darfur, the Prosecutor stressed that such inaction by the Council has emboldened the President of Sudan, Omar al-Bashir, to continue traveling across international borders despite the fact that two arrest warrants have been issued against him by the Court.

Moreover, she said that the Council’s failure to act in response to 11 findings of non-compliance issued by ICC judges has equally emboldened States, both parties as well as certain non-parties to the Rome Statute, not only to facilitate Mr. al-Bashir’s travels to their territories, but to invite and host him.

“A reasonable observer cannot be faulted for asking: how many more such findings must be rendered by the Court to spur this Council into action?” the Prosecutor said.

She emphasized that such an evolving trend risked setting an “ominous precedent,” which, unless redirected, will not bode well for similar genuine efforts aimed at bringing those responsible for mass atrocities to justice.

“Above all, such nonfeasance has emboldened some States to publicly express pride in disregarding the Council’s authority,” she said, which should be a matter of great concern to all.

Ms. Bensouda also said it is imperative for the Council to fully appreciate and embrace its inter-institutional relationship with the Court within the framework of the Rome Statute, adding that once a ruling of non-compliance has been referred to the Court, pursuant to article 87.7 of the Rome Statute, it was duty-bound to act.

“The Council cannot and must not remain silent and non-responsive on such judicial findings which are, after all, inherently linked to the resolution referring the situation of Darfur to my Office,” she stressed.

The Prosecutor also urged the Council to give due consideration to the proposal tabled by New Zealand calling for a structured approach in dealing with the Court’s findings of State non-compliance. She noted that informal interactive dialogue between the Council and her Office would also enable the two to generate proposals on strengthening their existing relationship.

“This is the least we can do to re-assure the victims of Darfur that they have not been forgotten; that both this Council and my Office are fully engaged and committed to finding solutions that ultimately ensure accountability and by extension bring peace and stability to Darfur,” she said.

Ms. Bensouda also emphasized that Sudan’s failure to cooperate with the Court amounts to non-compliance, and included of Security Council resolution 1593 (2005). In that vein, she said the failure of non-States parties to cooperate in the arrest and surrender of suspects was a “complete disregard” for the resolution.

Despite such challenges, her Office is continuing its investigations, with a view to deliver justice to the victims of grave crimes under the Rome Statute in Darfur.

That work, however, was complicated by obstacles including a lack of access to Sudan’s territory, resource constraints and non-execution of the long-outstanding arrest warrants, which have all contributed to the slow progress in investigations, Mr. Bensouda said.

The Prosecutor went on to say that she shares the Council’s deep concern at the increased violence and insecurity in Darfur, as well as the significant increase in the number of internally displaced persons since 2014, and the restriction of humanitarian access to conflict areas where vulnerable civilian populations reside.

A significant increase in aerial bombardments and ground attacks had resulted in more than 400 civilian deaths and destroyed up to 200 villages, Ms. Bensouda noted. In addition, she said that 107 incidents of sexual crimes against women had been reported, resulting in 225 victims.

The Prosecutor also underlined that the continuation of military attacks in Darfur by the Government of Sudan must be halted, adding that in her Office’s assessment, the arrest and surrender of Mr. al-Bashir and others accused in the situation in Darfur may assist in stopping such crimes.

“In conclusion, this Council must no longer tolerate the continuing deteriorating humanitarian situation in Darfur; the continued non-cooperation of the Government of Sudan, and in particular, the refusal of Sudan to arrest and surrender suspects within its territory into the custody of the Court,” Ms. Bensouda said.

“It is within the powers of the Council to reverse these trends through concrete action and resolve,” she added.