The Security Council refers the Darfur situation to the International Criminal Court

A historical precedent against the impunity of perpetrators of crimes against humanity and in support of the millions of victims in Darfur

The International Federation for Human Rights (FIDH) and its member organisation, the Sudan Organisation against Torture (SOAT), welcome the referral to the International Criminal Court (ICC) of the Darfur situation by the Security Council, a historical precedent they have been advocating for since September 2004.

"The decision of the Security Council to refer the Darfur situation to the ICC is a historical step forward in finally seeking justice for the millions of victims of crimes against humanity and war crimes committed in Darfur", said Sidiki Kaba, President of the FIDH.

"ICC investigations and trials will make it possible to establish the truth about the massive, systematic crimes that have been committed, while until now the international community stood by in deafening silence. They will also render justice to victims who will be able to participate in the procedures and receive reparation", stressed Sidiki Kaba.

The FIDH and SOAT point out that although the ICC is "complementary" [1] to national jurisdictions, the fact that the Security Council brought this matter to the ICC implicitly indicates that the ICC has primacy in prosecuting the suspects: the Sudanese authorities will thus have to abide by the resolution of the U.N. political body.

This referral sends a clear message to perpetrators of ongoing crimes against humanity in Darfur: they will be held accountable for their crimes. The court also has a responsibility upstream of the judicial process to contribute to silencing the weapons.

However, the FIDH and SOAT strongly regret the shameful bargaining that accompanied the vote of the Security Council resolution. This resolution stipulates that nationals of States that are not parties to the ICC Statute but are participating in any Security Council or African Union operation and would be suspected of having committed international crimes in Darfur would be exclusively prosecuted before their own domestic courts.

This measure is specially designed to guarantee the impunity of American nationals and to satisfy the USA’s paranoiac distrust of the ICC. It creates a double standard in matters of justice and violates international law, including the Rome Statute that established the ICC, as well as obligations, accepted by a majority of States, which recognizes the extraterritorial jurisdiction of their national tribunals.

The FIDH and SOAT also deplore the reference made in the preamble to the resolution to the bilateral "impunity" agreements which the U.S. signed with various States under the fallacious basis of Article 98-2 of the Rome Statute.

By referring to "the existence of agreements referred to in Article 98-2 of the Rome Statute", the Security Council risks to legitimate these impunity agreements.

According to the FIDH and SOAT, these provisions will in no way be binding on the ICC, which will have to assess their legality.

The resolution also encourages the creation of "truth and/or reconciliation commissions, in order to complement judicial processes and thereby reinforce the efforts to restore long-lasting peace". The FIDH and SOAT recognize that such an initiative will contribute to building up peace in Sudan as long as it does not lead to impunity for the perpetrators of crimes who would not be prosecuted by the ICC.

Finally, the FIDH and SOAT deplore the fact that the Security Council refuses to give the International Criminal Court the means to take action. Indeed, the Security Council has decided not to support the financial cost of this referral, in flagrant violation of article 115b of the Statute which makes it an obligation for the United Nations, and consequently puts the duty of financing costs relating to this referral on the 98 States Parties to the Rome Statute.

If the States Parties to the Statute refuse to shoulder their obligations and to significantly increase the Court’s present budget, this means that the whole international community would, once again, abandon the victims of Darfur, thus increasing insecurity and the impunity enjoyed by the perpetrators of the most frightful crimes.

The FIDH and SOAT therefore recommend

To the Sudanese Government
 to take note of the Security Council’s Resolution;
 to cooperate with the Court in accordance with article 87.5 of the Statute;
 to cooperate fully with the staff of the ICC.

To the International Community, the Security Council and the African Union
 to give financial support to the investigations and other activities of the ICC;
 to cooperate fully with the investigations of the ICC’s Prosecutor;
 to support the setting up of institutions aiming to rebuild the country without allowing impunity.

To the States Parties to the Rome Statute
 to increase significantly the budget of the ICC so that it can efficiently fulfil its mandate in Darfur, but also in other situations under analysis, in order to allow the implementation of a genuinely impartial and universal system of justice;
 to cooperate with all the organs of the Court so that their mandates may be implemented effectively.

To the International Criminal Court

 to the Prosecutor: to immediately open an investigation into the crimes committed in Darfur;
 to the Registrar: to inform the civilian population of the Court’s mandate and activities, to inform the victims and witnesses of their specific rights according to the Statue of the Court, and especially the right of victims to participate in proceedings; to establish programmes for the protection of victims and witnesses;
 to all the organs of the Court: not to use budgetary considerations limiting the number of situations which the Court can investigate annually, as a pretext for abandoning the current analyses of other situations which have been rightfully submitted to the Court.

Contact: Jeanne Sulzer (33) 1 43 55 11 56

A brief summary of the functioning of the ICC

The ICC is has jurisdiction over war crimes, crimes against humanity and genocide committed by the citizen or on the territory of a State party to the Rome Statute committed after the 1st July 2002.

The Prosecutor of the ICC, the Argentinian Luis Moreno Ocampo, can be triggered in three ways:
1. By any State party
2. By the Security Council
3. On his own initiative on the basis of information received from a third party.

When the Security Council refers a situation to the ICC, the Court’s jurisdiction is truly universal, meaning that it is not necessary for the alleged perpetrator of the crime to be citizen of a State Party or for the crime to have been committed on the territory of a State Party.

This is the situation with Sudan which is not one of the 98 State Party to the Rome Statute.

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