Refugee Rights News
Volume 4, Issue 7
December 2008
The Security Council Considers the International Criminal Court's Case in Darfur
On 3 December, the Prosecutor of the International Criminal Court, Luis Moreno Ocampo, addressed the United Nations Security Council to update them on the progress of his activities in the Darfur case. It was the eighth such report that he has given to the Council as required by Resolution 1593, which referred the Darfur case to the court. It was, however, the first address since the presentation of the case against Sudanese President Omar Al Bashir in July.
Since July, there have been numerous calls on the council to intervene in the Darfur case. The African Union, the Organisation of the Islamic Conference and the Non-Aligned Movement have all called on the Security Council to defer the case for a year as provided for under Article 16 of the Rome Statute. On the other hand, the prosecutor and some civil society organisations have urged the council to take measures to ensure that states comply with the decisions of the court, including through the enforcement of outstanding arrest warrants.
The Reaction to the Case
The presentation of evidence against President Bashir by the ICC Prosecutor on 14 July provoked a vigorous debate in Africa and beyond. IRRI previously documented state and civil society responses in the July issue of this newsletter "International Justice or Western Conspiracy? The Response to ICC Charges against Bashir in Africa". In Sudan there was also a substantial amount of discussion within Sudan (676 articles in Sudanese media outlets were reviewed by our partners between July and September). The vast majority of writers, columnists and shapers of public opinion from a wide range of political ideologies called for cooperation with the court, advocating opposition to the charges within the terms of the ICC framework, as the most realistic and effective approach. Some have urged the avoidance confrontation with the international community, arguing that the good of the country should be given more weight than the fortunes of one individual.
There has been some indication that there is willingness to engage with court on the part of the government. Indeed, pictures of the Sudanese Second Vice-President Ali Osman Taha shaking hands with the prosecutor during a brief encounter in September 2005 suggest that there is at least some high level support for a non-confrontational approach. It is clear, however, that there is also a group of hardliners which is forcefully opposing the court. These hardliners insist that the ICC has no jurisdiction over Sudan, and have called Ocampo a criminal. For these hardliners, even invocation of Article 16 might be seen as overly accommodating the Rome Statute system. Among this group there may also be individuals who have been involved in the crisis in Darfur and who may fear future charges.
Developments on the Ground
Before the Prosecutor announced he was focussing on the responsibility of the president, progress towards resolving the crisis in Darfur had stalled. The peace talks had collapsed the deployment of the United Nations - African Union Mission in Darfur (UNAMID) was facing obstruction and delays, and accountability for the serious crimes committed in Darfur was nowhere in sight. The Comprehensive Peace Agreement, which ended decades of war between the North and the South of the country, was also becoming increasingly fragile due to delays in its implementation.
Since the announcement, IRRI has continued to monitor the situation. It is clear that the government has been under increased pressure to re-consider its policy in Darfur, in part due to the prosecutor's charge. Of course, other factors have also contributed, most notably the 10 May attack by the rebel Justice and Equality Movement on Omdurman, the sister city to Khartoum. In the days following the Prosecutor's announcement, President Bashir travelled to Darfur for the first time. The government has appeared eager to show that it was addressing the crisis, in part in order to convince members of the Security Council that proceedings should be suspended. The government of Sudan has sought to argue that Darfur is safe—in the words of President Bashir, "[t]here are no problems and life is very normal"—and that they are addressing the crisis. On 12 November 2008, a unilateral ceasefire was announced. A new Sudan Peoples' Initiative was also established to prepare for a peace process hosted by Qatar. The government has said that it will facilitate deployment of peacekeepers. A new Special Prosecutor to address impunity and ostensibly deliver effective domestic justice has been appointed.
Civil society organisations have expressed concerns about the genuineness of these moves. The Qatar peace process, for example, has yet to begin. As pointed out by a group of Darfurian civil society leaders in the diaspora, "a comprehensive peace process inclusive of civil society will require time and thorough preparation."
Rhetoric and Reality
In a report issued on 2 December 2008, Rhetoric vs. Reality–the Situation in Darfur, a coalition of NGOs, including Human Rights First, Human Rights Watch, the International Refugee Rights Initiative and the Save Darfur Coalition explored some of the other assertions that the government of Sudan has made as justification for its campaign for a deferral.
For example, the government has asserted that it is respecting a ceasefire, but on 14 November, just two days after it was announced, a government attack on Kurbia in North Darfur was reported. Even within the camps where civilians have come to find safety, they have found little. On 25 August, government use of excessive force in an operation to retrieve weapons at the Kalma camp near Nyala claimed 33 lives.
Although the government claims that there are no barriers to humanitarian access, the Ministry of Pharmaceuticals maintains strict bureaucratic procedures for the import of medical drugs, leading to delays in the delivery of some drugs for more than six months. Much of the region's population remains inaccessible, humanitarian agencies can only reach 65% of the affected population.
The Sudanese government has also contended that it will ensure justice for crimes committed in Darfur. However, the Special Prosecutor who was recently appointed to address these crimes has reportedly started only three cases. The Special Court for the Events in Darfur, set up in 2005 to address the same crimes, tried only 13 cases, most dealing with ordinary crimes.
Narrowing Freedom of Expression
At the same time, there are worrying indications that in response to its increasingly pressured position the government of Sudan is, reverting to some of the more repressive techniques characteristic of their early years. In particular, censorship has increased, with security officers assigned to every paper, each night reviewing the text and excising any objectionable material. This form of censorship had previously been abandoned after the signing of the CPA. According to a statement made by a number of Sudanese organisations to the African Commission on Human and Peoples' Rights in November:
... the censorship targets are no longer specific events but seem to encompass any opinion or fact reporting which tends to criticize or reflect negatively on the National Congress Party, the senior government partner. This has impacted everything from analysis of the actions of government officials, criticism of the People of Sudan Initiative on Darfur, to discussion of the fight against corruption and writing about higher education policy.
In addition, the government continues to harass human rights activists, showing increasing interest in any activities related to the promotion or even awareness-raising about the Court. According to Amir Suleiman, Director of the Khartoum Centre for Human Rights and Environmental Development "[i]n the previous times, we were interrogated about the human rights situation in Sudan, because we are working closely with the victims of human rights violations. This is the first time we are interrogated about the International Criminal Court and our relationship with the International Criminal Court." In the words of Georgette Gagnon, Africa Director at Human Rights Watch, "[t]his is part of a wider pattern of trying to silence those who support justice and to suppress information about the human rights situation in Sudan."
The Prosecutors' Address to the Council
In his remarks to the Council on 3 December, the Prosecutor called on the Security Council to prepare for the decision of the Pre-Trial Chamber on his application for an arrest warrant. He emphasised the legal responsibility of Sudan to implement the arrest warrants issued by the Court, including, if ordered, the arrest warrant against President Bashir. The prosecutor urged the international community to take "united action" to ensure that the government lived up to this obligation. Referring obliquely to the prospect of an Article 16 resolution the Prosecutor said, "he [President Bashir] will insist on your protection," and urged the Council to ensure that his "criminal actions" not be ignored. He also called on the council to see the issue of justice as an integral pillar of the international community’s response to Darfur. Referring to the peace process, the humanitarian efforts, justice and peacekeeping, the prosecutor argued that "none can succeed in isolation. As long as the arsonists are in charge, no matter how many fire fighters you send, they will never be enough."
The prosecutor also clarified that all the requests for arrest warrants have been made public, perhaps reassuring other top level government officials that they are not yet in the dock and may have greater ability to manoeuvre.
The Reaction of the Council
In response to the prosecutor's statement, members of the council expressed varied views on the role that the council should play in relation to the case going forward. Some states called on the council to formally consider invoking Article 16, while others argued against suspending the proceedings and for taking further action to enforce the decisions of the court.
The South African delegate expressed his hope that the council would take the time to debate the possibility of invoking an Article 16 and to make a decision. Referring to the decision of the African Union's Peace and Security Council on this matter, the delegate argued that it would be appropriate to defer the investigation at this time, prior to a decision on an arrest warrant, in order to avoid seriously undermining efforts to end the crisis in Darfur. He argued that this should not be seen as condoning impunity, but rather as appropriately balancing the need for justice with political considerations. This call was echoed by the representative of Libya, who argued that justice could only be pursued effectively in an environment of political and security stability. He asserted that efforts to promote security should be prioritised and regretted the fact that the Prosecutor's action came at a time when the UNAMID was in the midst of deploying and when efforts were underway to reinvigorate the peace process through the Qatar initiative.
The United Kingdom, on the other hand, noting the Article 16 issue argued that there was "no justification" for it at present. The Costa Rican representative regretted that the council had been put under pressure to invoke Article 16, and noted that instead, the council should have been looking at the "many tools that the council has to push the compliance with the decisions of the court." Several members mentioned the possibility of sanctions, including the United States, which urged the council to consider ways of implementing the recommendations of the Panel of Experts.
On the same day, John Holmes, Under-Secretary-General for Humanitarian Affairs and UN Emergency Relief Coordinator, also addressing the Security Council, reflected that the maintenance of the humanitarian operation, regardless of the decision of the Pre-Trial Chamber, was of primary importance, a matter he said he raised at every opportunity with the government of Sudan.
The Impact of a Deferral
In the run up to prosecutor's report a group of Darfuris in the diaspora urged the council to "recognize the great opportunity that the ICC’s work presents for Darfur – not only for ensuring justice and accountability but for obtaining a lasting peace for our people. The Security Council must respect the independence of the ICC and allow it to continue its work."
Sudanese activists and others have expressed concerns about the message that an Article 16 resolution would send to the government of Sudan, the militias and others who have committed crimes in Darfur. If President Bashir is let off the hook after being charged with genocide then what other charges or sanction would be accepted? It would be demoralising for these same activists who, sometimes at great risk to themselves, have campaigned for justice.
