Security Council, Sudan, and the ICC: Moving Toward both Peace and Justice

Open Letter to the Members of the Security Council

Excellencies,

Three years after the Security Council referred the situation in Darfur to the International Criminal Court (ICC), on July 14, 2008, the ICC Prosecutor submitted evidence seeking to demonstrate that the current Sudanese President, Omar Hassan Ahmad al Bashir, bears personal criminal responsibility in relation to no less than ten counts of genocide, crimes against humanity and war crimes.

FIDH strongly believes that, contrary to damaging the peace process in Darfur, a strong and committed support of the Security Council to the Prosecutor’s request for an arrest warrant would send a very clear message to the Sudanese authorities that they cannot escape justice, thus pave the way for peace in Sudan.

Opposing the Prosecutor’s request at the Security Council level or making use of Article 16 of the Rome Statute to defer ICC proceedings would represent a giant step backward from the movement toward seeking accountability for the most heinous crimes and would be in direct contradiction with the Security Council’s continued support to the ICC proceedings in Darfur – over the past three years – as part of the peace solution. Support for the Chief Prosecutor’s request is therefore also a matter of credibility for the Security Council.

An Ongoing Genocide and Crimes Against Humanity in Darfur

FIDH would like to recall that this is the first time that evidence has been presented before an independent international judicial institution indicating that genocide and crimes against humanity are being committed in Darfur and that it has been planned at the highest State level. It is also the first time in history that the international community has the opportunity to act during the commission of genocide.

Omar Hassan Ahmad al Bashir’s Personal Responsibility

As President and Commander-in-Chief of the Sudanese armed forces, Bashir is accused of having ordered, planned, and encouraged the commission of the most heinous crimes. Over the past five years, Bashir, who exercises absolute control over Sudan’s state institutions, has been directing the recruitment and arming of the Janjaweed militia. Yet, for five years, Bashir has denied the existence of crimes perpetrated under his command.

As the ICC Prosecutor explained last June to the Security Council, denial of crimes, cover ups, and attempts to shift responsibility are characteristics of the planning and execution of this type of crime.

An Indictment of Bashir Would Not Undermine Peace Efforts in Darfur

History has shown that seeking accountability of senior political leaders can make a major contribution to the establishment and strengthening of peace and stability. For example, the arrest of President Charles Taylor of Liberia removed him from peace processes and facilitated the long-term implementation of peace agreements. Also, the trials of Charles Taylor or Slobodan Milosevic clearly contributed to truth-telling regarding the massive crimes committed in their countries, and uncovering their key roles in planning and executing the crimes was central to an enduring peace process. Similarly, the ICC warrants of arrest against the top leaders of the Lord’s Resistance Army in Uganda have been a decisive factor in their decision to participate in peace talks aimed at achieving legal and political solutions to put an end to a 20-year long conflict.

In Sudan, while massive and systematic crimes continue to be committed against civilians in Darfur, supporting the impunity of Bashir will certainly not bring peace and stability in the country or in the region. In fact, Bashir has not participated in the Darfur peace talks until this day. Since the Security Council mandated UNAMID, Bashir has consistently obstructed the deployment of the force, which is operating today at less than 40% of its capacity. In addition, he repeatedly prohibits or makes it extremely difficult to access and protect the civilian population, while humanitarian agencies and peacekeepers have been the regular targets of military attacks.

Before the Prosecutor’s announcement, peace efforts were not clearly sought by the Sudanese authorities, for reasons that were not related to the ICC. The argument that the Court’s action could now undermine peace efforts in Darfur is therefore not convincing.

FIDH strongly believes that opposing and questioning the Prosecutor’s request would undermine humanitarian and peace efforts. It would also be in complete contradiction with the position adopted by the Council and the international community for many years now and would result in granting immunity (and supporting impunity) at the highest level and for the gravest crimes in Darfur.

On the other hand, supporting the Prosecutor’s request would send the strongest signal to date to the Sudanese authorities that the international community has not given up in doing its best to put an end to the crimes perpetrated under everyone’s watch. The threat that the indictment be confirmed by the ICC with the full support of the Security Council, may very well compel Bashir to and his government to finally engage in pragmatic peace negotiations in order to avoid worsening a situation that is so seriously pressured and closely monitored by the international community. This is also sending the message to the Sudanese authorities that their defiance to the previous arrest warrants has not been successful, contrary to what they may have hoped.

Finally, supporting justice and accountability in an on-going conflict situation will deter the commission of further crimes, give hope to the numerous victims left behind, and set the ground for the reestablishment of the rule of law.

Sudan’s Failure to Cooperate with the ICC and to Engage in an Effective Peace Process Is No Justification to Defer the Proceedings under Article 16

It cannot be denied that until this day, the Sudanese authorities have entirely failed to cooperate with the ICC, despite their absolute legal obligation to do so in accordance with Security Council Resolution 1593 (2005). This has undoubtedly damaged the credibility of the Security Council.

After the ICC issued arrest warrants for crimes against humanity and war crimes on April 27, 2007 for Ahmad Harun (former Minister of the Interior and current Minister for Humanitarian Affairs), and Ali Kushayb (Janjaweed militia leader), Bashir promoted the first one to co-chair of a committee in charge of investigating human rights abuses in Sudan and to be the focal point for the deployment of the joint United Nations-African Union mission (UNAMID). Bashir has also brought to an end the detention of the second one in Sudan, who is now entirely free.

The ICC Prosecutor has repeatedly denounced Sudan’s lack of cooperation and non-compliance with Res. 1593 before the Security Council. Acting upon such information, the Security Council urged the Government of Sudan and all other parties to the conflict in Darfur to cooperate fully with the Court, in order to put an end to impunity for the crimes committed, in a Presidential Statement of June 16, 2008.

FIDH is seriously concerned that the suspension of the prosecution under Article 16 of the Rome Statute in one of the first cases brought before the ICC and in the only case so far that was initiated by the Security Council itself, would set a dangerous precedent that would gravely undermine the legitimacy of the Security Council and the ICC

It is well-known that Sudan is desperately seeking such a suspension. By making use of Article 16, the Council would be yielding to blackmail by a government who is suspected of having committed crimes against humanity and genocide.

Suspending an ICC case on the ground that it may hurt peace negotiations disregards two important points: 1) it has been very clear – and accepted – that the issues of peace progress and negotiations would, by definition, always be present in the situations where the ICC operates, and 2) justice does actually lay the foundation for peace.

Making use of Article 16 at this stage would not only be wrong but it would also be premature. Firstly, the ICC judges have not yet decided upon the Prosecutor’s request. It is, therefore, too early to talk about an arrest warrant as a "real" threat when it has not even been issued. States should respect the independence of the ICC judges and avoid any political intervention at this stage. Secondly, calls for suspension are not based on actual serious incidents but rather on Sudan’s threats of reprisals. In this sense, it should be reminded that in order for the Council to call for a suspension of ICC proceedings, the relevant resolution must be adopted under Chapter VII of the UN Chapter, and therefore, upon ascertaining that ICC proceedings pose an actual threat to peace and security. FIDH believes that this cannot be affirmed today.

Last but not least, FIDH recommends that the Security Council renews the UNAMID’s mandate on July 31, 2008 and that it includes in that resolution language supporting the ICC’s efforts, in accordance with the Council’s precedents. In the next weeks, months, and years, for a change in the right direction to be seen in Sudan, the Security Council has to be absolutely unyielding when it comes to demanding peace in Darfur through, among other means, justice. The Security Council Members’ unity in this regard will be the key to success.

Sincerely,

Souhayr Belhassen,
FIDH President

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