International Criminal Court 2018

Time for the Security Council to Address Sudan’s Impunity

(July 12, 2023) Tomorrow, Thursday, July 13, 2023, ICC Prosecutor Karim Khan will brief the UN Security Council on the progress of the International Criminal Court in Darfur. Although the prosecutor has been carrying out such briefings biannually since 2005, this time, he will be doing so against the backdrop of an ongoing tragedy in Darfur that rivals the situation in Darfur at the time of the referral. Nearly a million people have been displaced within and from Darfur since the start of the conflict in Sudan on April 15 and horrific acts of violence have been committed, largely by Rapid Support Forced, the modern incarnation of the Janjaweed militias. Drawing from the same ethnic-based forces, they have looted and burned large areas of Al Geneina, the capital of West Darfur and other cities, and killing people based on their ethnicities, including West Darfur Governor Khamis Abakar. Refugees fleeing to Chad report experiencing additional abuses on the road.
The horrors that are facing Darfur as Khan addresses the Security Council are a stark reminder of the international community’s failure to address Darfur’s situation. The lack of accountability is a key element, though not the only one of this failure. It has allowed the same actors to continue to commit abuses with the support of their government and created a culture of impunity within which abuses can be freely committed. It has contributed to frustrating the demands of the Sudanese people’s pro-democracy movement, which for the last three years has waged continued peaceful protests, demanding “peace, justice, and freedom.”
Although its actions have been far from perfect, the International Criminal Court has made some progress. It has opened six cases and had custody of two accused — in one of the cases the court failed to confirm the charges, and another trial is ongoing. The reformist civilian-led government that took over after the fall of Bashir in 2019 began a promising period of cooperation with the Court. Its Attorney General sent Bashir and his Minister of Defense and State for Interior, all wanted by the ICC on charges of war crimes, crimes against humanity, and genocide, to pretrial detention for serious crimes under Sudanese law and began sharing information with the Office of the Prosecutor. However, the military coup of October 2021 walked back these modest steps.  Today, four of those charged including former President Omar el Bashir, remain at large. And some, indeed, appear to have escaped detention following massive jailbreaks in the chaotic conditions created by the ongoing war.
Khan is likely to highlight, as his predecessors before him have done, the lack of cooperation with the court and the role that this has played in handicapping efforts to achieve justice. In his last briefing to the Council, Khan focused on the lack of cooperation from the government of Sudan, then led by both Hemedti and Burhan as leaders of the 2021 coup: “many promises, signed cooperation agreements, undertakings from the most senior officials of the country, made to my face in my last visit, signed in memoranda of understanding, have not been honoured. And indeed it is my unfortunate duty to say that cooperation has deteriorated, not improved.” The cooperation of the government of Sudan is of course the most critical, but as Khan’s predecessors pointed out, it is not the only one. Other states have also failed to cooperate in providing information or taking action to arrest or surrender suspects.
However, the Security Council has taken no visible action to address this lack of cooperation, despite a range of options at its disposal. As a first step, the Council could ask for formal explanations of instances of non-cooperation brought to its attention. It should engage such discussions on a more regular and formal basis to show seriousness about this issue. If issues are not resolved, additional measures could be taken such as clarifying obligations or imposing secondary sanctions. It could also consider subjecting the men facing charges by the ICC to the UN’s existing regime of individual sanctions against those threatening peace in Darfur.
In addition, the Council could actively encourage and support additional investigations, both of the new round of atrocities being committed under their watch in Darfur, or those occurring in the country more broadly. Pushing for additional investigations in Darfur would not require a new formal referral or resolution, but could be pushed by individual states in their responses to the prosecutor’s presentation.
None of these measures are a panacea: the court would still face an uphill climb. They would all, however, help to communicate broader political support to the court.
It is important to recognize as well, that even if the ICC is better supported, it will not be enough alone. Six cases cannot deal with the scope of crimes committed in Darfur over the last 20 years, nor do they respond to the legitimate demand of the people of Sudan outside of Darfur for justice and accountability. In this vein, the Security Council should consider how to strengthen its political mission, UNITAMS and the UN country team efforts at promoting accountability. Even if the country is mired in conflict now, planning could be done now for mechanisms to support a broader transitional justice program, including reparations and national trials, once the conflict ends.
The Sudanese people have been calling for justice and accountability for years. They have taken to the streets and sacrificed their lives, but they have not received the support they need to effectively tackle Sudan’s entrenched impunity. Now it is high time the Security Council respond to the new wave of atrocities and show it takes the fight for accountability seriously. It response to the prosecutor’s report would be a good place to start.

By Olivia Bueno

Olivia works with Sudan Transparency and Policy Tracker. She is human rights researcher and advocate who has worked extensively on international justice issues, including monitoring local reactions to ongoing ICC trials in DRC and Sudan. 

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