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May 15, 2008

Letter: The Security Council Must Demand the Arrest of ICC Accused

Letter to Members of the U.N. Security Council

The Situation in Darfur and the International Criminal Court (ICC)

The Security Council Must Demand the Arrest of ICC Accused

May 15, 2008

It has been over three years since the United Nations Security Council (UNSC) referred the crimes in Darfur to the International Criminal Court (ICC), and over a year since the Prosecutor issued the Court's initial charges against two suspects believed to be among those most responsible for the crimes. Yet the Government of Sudan has refused all cooperation with the Court in relation to Darfur crimes. In light of the Government's defiance of its obligation to comply with binding Security Council resolutions, it is incumbent on the Security Council to take action to demand compliance. The Security Council should - before its trip to Sudan in June - demand that the Government of Sudan turn over the suspects to the ICC. To ensure compliance, the Council's resolution should impose punitive measures, including meaningful sanctions, if the Government fails to abide by this resolution within 30 days.

On July 30, 2004, the Security Council, by Resolution 1556, "Demand[ed] that the Government of Sudan fulfill its commitments to disarm the Janjaweed militias and apprehend and bring to justice Janjaweed leaders and their associates who have incited and carried out human rights and international humanitarian law violations and other atrocities". By September 2004, a civil war had been raging in Darfur for a year and a half. In the course of the conflict, the Government of Sudan attempted to suppress a rebel movement by sending troops and airpower, and by recruiting and supporting the Janjaweed militia, both of which committed brutal attacks against the civilian population. On September 18, 2004, the Security Council, by Resolution 1564, requested that the Secretary-General establish an International Commission of Inquiry on Darfur to investigate crimes and recommend ways to ensure accountability for the worst crimes. The Report of the International Commission of Inquiry, delivered January 25, 2005, concluded that very serious crimes had been committed in Darfur, and recommended that the situation be referred to the ICC.

On March 31, 2005, the Security Council, acting under Chapter VII, adopted Resolution 1593, referring the crimes committed in Darfur to the ICC, in accordance with Article 13(b) of the Court's Statute. In that resolution which recognized that the situation in Darfur continued to constitute a threat to international peace and security, the Security Council decided that the Government of Sudan and all parties to the conflict "shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor". The UN Charter requires all member states of the UN to "accept and carry out the decisions of the Security Council" (Article 25, UN Charter.) When the Security Council makes decisions under Chapter VII of its Charter, the action required "shall be taken" and its decisions "shall be carried out" (Article 48, UN Charter.) Thus, even though Sudan is not a party to the ICC Statute, as a member of the United Nations, it is obliged to comply with the Security Council's dictate that it cooperate fully with the Court.

After receiving the referral, conducting a thorough analysis, and determining that the jurisdictional, admissibility, and ‘interest of justice' requirements of the Statute were met, on June 6, 2005 the Prosecutor formally opened an investigation into the crimes committed in Darfur.

On February 27, 2007, the Prosecutor applied to the Pre-Trial Chamber, under Article 58(7) of the Statute, requesting summonses to appear or warrants of arrest for Ahmad Muhammad Harun, former Secretary of State for Security and head of Darfur Security Desk, and Ali Muhammad Ali Abd-Al- Rahman (a,k.a. Ali Kushayb), militia and Janjaweed leader. The two men were charged with 51 counts of crimes against humanity and war crimes for ordering or otherwise facilitating widespread and systematic murder, rape, persecution, pillage, and other horrific crimes against scores of innocent men, women, and children in Darfur.

On April 27, 2007, the Pre-Trial Chamber rendered its decision on the Prosecutor's application under Article 58(7) and ordered arrest and surrender warrants issued against Harun and Kushayb.

Since then, Harun has been promoted to State Minister for Humanitarian Affairs - responsible for the treatment of the victims of his alleged crimes - in a flagrant show of contempt for the Court, the Council, and the victims. Kushayb, who was in custody for other charges at the time the arrest warrant against him was issued, was subsequently released by the government. Worst still, Government forces and Janjaweed collaborators have continued attacks, including aerial bombardment, on Darfur villages and innocent civilians.

Thus, more than a year has passed and the Government of Sudan has failed to cooperate with the ICC, has failed to arrest and surrender Harun and Kushayb, and has in fact made every effort to flaunt its defiance of both the Security Council and the Court. Blatant disregard of Security Council resolutions - particularly those under Chapter VII authority which go to the heart of the Security Council's mandate and the UN's core responsibility - cannot go unpunished without undermining the Council's authority and effectiveness.

We note that the Security Council is scheduled to visit Khartoum in June, at the request of the Government of Sudan, during the same time that the ICC Chief Prosecutor is scheduled to deliver his report on Darfur to the Security Council. We therefore request that action be taken before the Council's trip to Sudan to ensure that follow-up is enabled while the Council is in Sudan.

We further request that this Council demand that Sudan immediately arrest and surrender the accused to the Court and to cooperate fully with other requests by the Court. If the Government of Sudan fails to comply with these demands within 30 days, we ask that the Security Council take all necessary measures within its authority to ensure compliance.

We would be happy to meet with you or members of your staff to discuss these matters further.

Respectfully submitted,

Aryeh Neier
President
Open Society Institute

Juan Mendez
President
The International Center for Transitional Justice

Cory Smith
Acting Executive Director
Enough!

Nick Grono
Deputy President
International Crisis Group