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Darfur: ICC Prosecutor s Eleventh Report to UN Security Council on Darfur; Related CICC and HRW Advisories; Relevant Links and Related News

11 June 2010

Dear all,

Please find below information about recent developments related to the International Criminal Court's investigation in Darfur, Sudan.

On 11 June 2010, ICC Prosecutor Luis Moreno-Ocampo will brief the United Nations Security Council on the Court's investigation in Darfur, Sudan.

In compliance with UN Security Council Resolution 1593, through which the situation in Darfur was referred to the Court, the ICC prosecutor is required to report to the Council every six months regarding progress in the investigation. This is the prosecutor's eleventh report to the Council in the Darfur investigation since the prosecutor's last report to the Council on 4 December 2009.

This message includes press statements made by the Coalition for the International Criminal Court and Human Rights Watch on the upcoming presentation by the ICC Prosecutor (I); a press release issued by the ICC on the lack of cooperation by the Republic of the Sudan in the case against Harun and Kushayb (II); and related news (III).

Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

With regards,

CICC Secretariat
www.coalitionfortheicc.org

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I. CICC AND HUMAN RIGHTS WATCH MEDIA ADVISORIES

i. "Global Coalition Says Governments Committed to Justice Should Support ICC Darfur Investigation," CICC, 10 June 2010, http://www.coalitionfortheicc.org/documents/CICC_MA10June2010.pdf

"WHAT: On 11 June 2010, the Prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo will present his eleventh report to the Security Council of the United Nations on the situation in Darfur, Sudan. This report comes on the heels of an ICC decision calling out the government of Sudan on non-cooperation with the Court. The Coalition for the ICC-a global network of more than 2,500 civil society organizations in 150 countries advocating for a fair, effective and independent ICC-calls on all states to ensure that Omar al-Bashir, Ahmad Harun and Ali Kushayb face justice. In particular, the CICC calls on the government of Sudan to cooperate with the Court in accordance with its UN Charter obligations and also all states parties to the Court to robustly fulfill their obligations under the Court's founding treaty.

WHY: UNSC Resolution 1593, by which the situation in Darfur was referred to the ICC, requires the Prosecutor to report to the Council every six months on the progress of his investigation in Darfur. Three arrest warrants have been issued and several calls for cooperation have been made by the Court and its Prosecutor. The Sudanese Government has consistently refused to cooperate with the Court and the Security Council in this regard. On 25 May 2010, the ICC judges issued a judicial decision informing the UN of non-cooperativeness of Sudanese nationals Ahmad Muhammad Harun and Ali Kushayb regarding their arrests.

HOW: The prosecutor's eleventh report is expected to provide an overview of the prosecutorial and investigative activities of the Court to date, in relation to the three cases in the Darfur situation currently under investigation, and a recount of the developments since the last report of the Prosecutor to the UNSC in December 2009. The report is also expected to outline national efforts as well as other international efforts to promote accountability and an analysis of the crimes committed in the last six months.

COMMENT: 'While all eyes are turned on the Kampala Review Conference of the Rome Statute and the debate around the Crime of Aggression, tomorrow's presentation by the ICC Prosecutor is an important reminder of the realities on the ground in Darfur and challenges still facing this new system of international criminal justice,' said Program Director of the Coalition for the International Criminal Court, Tanya Karanasios. 'Since the Prosecutor's last presentation to the Security Council, the ICC has issued a judicial decision informing the UN of the non-cooperation of the Sudanese government. This first judicial decision on non-cooperation is a significant wake-up call for a Security Council that has been silent on non-cooperation since it issued a presidential statement issued on 6 June 2008,' she added. 'We reiterate our call on the Security Council not to lose sight of what is really at stake here: its own legitimacy and, more importantly, justice for the victims in Darfur.'

BACKGROUND: The situation in Sudan was referred to the Court by the United Nations Security Council through Resolution 1593 on 31 March 2005. The investigation into the situation in Darfur, Sudan was officially opened by the ICC prosecutor on 6 June 2005. On 2 May 2007, Pre-Trial Chamber I issued arrest warrants against Ahmad Muhammad Harun and Ali Kushayb for war crimes and crimes against humanity allegedly committed in Darfur between 2003 and 2004. On 4 March 2009, an arrest warrant for crimes against humanity and war crimes was issued against President Omar Hassan Ahmad Al-Bashir of Sudan. To date, none of the three outstanding warrants have been executed.

In addition, in response to summons issued by the Court on 17 May 2009, rebel leader Abu Garda voluntarily appeared in Court for war crimes allegedly committed during attacks in the Haskanita base in Darfur. On 8 February 2010, judges declined to confirm the charges against Abu Garda, thereby refusing to move his case forward to trial.

The ICC is the world's first permanent international court to prosecute war crimes, crimes against humanity and genocide with 111 ICC States Parties. Central to the Court's mandate is the principle of complementarity, which holds that the Court will only intervene if national legal systems are unable or unwilling to investigate and prosecute. To date, the ICC has opened five investigations in the Central African Republic; Darfur, Sudan; Uganda; Democratic Republic of Congo and Kenya, and it has publicly issued twelve arrest warrants and one summons to appear. Two trials are ongoing and a third is expected to open in July 2010. The ICC Office of the Prosecutor has made public that it is examining at least eight situations on four continents, including Afghanistan, Colombia, Côte d'Ivoire, Georgia, Guinea and Palestine..."

ii. "UN Security Council: Press Sudan to Cooperate with ICC," Human Rights Watch, 10 June 2010
http://www.hrw.org/en/news/2010/06/10/un-security-council-press-sudan-cooperate-icc

"United Nations Security Council members should use the upcoming International Criminal Court (ICC) prosecutor's briefing on Darfur to send a strong message to Sudan to cooperate with the court or face council action, Human Rights Watch said today.

The ICC prosecutor will report on his Darfur investigation to the Security Council on June 11, 2010. On May 25, after three years of inaction by the Sudanese government on ICC arrest warrants, the court took an unprecedented decision to send a formal finding of non-cooperation to the council. Security Council Resolution 1593, which refers the situation in Darfur to the ICC, requires the government of Sudan to cooperate fully.

"Sudan has thumbed its nose at the Security Council's authority for too long," said Elise Keppler, international justice senior counsel at Human Rights Watch. "Council members should make it clear that Sudan cannot ignore its obligation to cooperate with the court."

In its Darfur investigation, the ICC has issued arrest warrants for three individuals for war crimes and crimes against humanity. In April 2007, the court issued warrants for Ahmed Haroun, then the country's minister for humanitarian affairs and now governor of Southern Kordofan state, and Ali Kosheib, whose real name is Ali Mohammed Ali, a "Janjaweed" militia leader. In March 2009, the court issued a warrant for Sudan's president, Omar al-Bashir.

Sudan refuses to hand over any of the suspects and on April 19, the prosecutor asked the ICC judges to issue a finding of non-cooperation in the execution of warrants for Haroun and Kosheib under article 87 of the ICC statute. On May 25, ICC Pre-Trial Chamber I decided to send the finding of non-cooperation on the warrants to the Security Council.

"The Security Council made the court's investigation of atrocities in Darfur possible," Keppler said. "Now it needs to work to ensure that suspects are brought to the dock to face trial."

The court's May 25 decision indicates that the finding will be forwarded "in order for the Security Council to take any action it may deem appropriate." This is the first time a finding of non-cooperation has been sent to the council, so next steps are not fully clear, although the council has a range of options, such as resolutions and sanctions.

Some council members appear to be resisting council response to the finding of non-cooperation over concerns that it could undermine implementation of Sudan's Comprehensive Peace Agreement that ended the country's north-south conflict. However, experience has shown that the feared consequences of promoting justice often do not materialize, Human Rights Watch said. Impunity for serious crimes moreover carries the risk of engendering further abuses, which has been underscored by the Sudanese government's use of the same scorched earth tactics in Darfur that it used in the south.

Human Rights Watch said Sudan's failure to cooperate should be discussed at a high-level meeting on Sudan that will take place at the Security Council on June 14. The meeting will include briefings by Haile Menkerios, the UN secretary-general's special representative for the UN mission in Sudan; Ibrahim Gambari, the joint special representative for the African Union-UN peacekeeping mission in Darfur; Djibril Bassolé, the AU-UN joint chief mediator for Darfur; and Thabo Mbeki, the former South African president, who heads the AU High Level Implementation Panel on Sudan.

'Without its own police force, the ICC relies on cooperation to execute warrants,' Keppler said. 'It is imperative for both the court's work and the Security Council's own credibility that the council acts strongly on the finding of non-cooperation.'

The prosecutor's briefing, his 11th, is part of bi-annual reporting to the Security Council on his work on Darfur under Resolution 1593, which referred the situation in Darfur to the ICC.

Article 87 of the ICC's Rome Statute permits the court to issue a finding of non-cooperation. Because Darfur is before the ICC as a result of a Security Council referral, such a finding is sent to the council for follow-up.

In addition to the warrants issued for Haroun, Kosheib, and al-Bashir, the prosecutor is pursuing cases against three Darfuri rebel leaders for attacks on an AU base in Haskanita in Darfur. One of the suspects is Bahar Idriss Abu Garda. The others have not been named publicly. The ICC judges declined to confirm charges against Abu Garda over lack of evidence in February, but the prosecutor has indicated his intention to submit further evidence."

II. ICC PRESS RELEASE

Please note that this document has been produced by the ICC. The Coalition for the ICC distributes it as part of its mandate to inform member organizations and individuals about ICC-related developments. The document does not reflect the views of the CICC as a whole or its individual members.

i. "Pre-Trial Chamber I informs the United Nations Security Council about the lack of cooperation by the Republic of the Sudan in the case against Harun and Kushayb," ICC Press Office, 26 May 2010,
http://www.icc-cpi.int/NR/exeres/219CA9C9-84C3-4228-BE49-DD9B50683D33.htm

"On 25 May, 2010, Pre-Trial Chamber I of the International Criminal Court (ICC) ordered the ICC Registrar to transmit the decision informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan in the case of the Prosecutor v. Ahmad Muhammad Harun (Ahmad Harun) and Ali Muhammad Ali Abd-Al Rahman (Ali Kushayb), in order for the Security Council to take any action it may deem appropriate.

Pre-Trial Chamber I was seized by the Prosecution's request of 19 April, 2010, and concluded that the Republic of the Sudan is failing to comply with its cooperation obligations stemming from the Security Council Resolution 1593 (2005) in relation to the enforcement of the warrants of arrest issued by the Chamber against Ahmad Harun and Ali Kushayb. This decision is however without prejudice to other decisions or actions that the Chamber may take in respect of other cases arising in the situation in Darfur, Sudan

The Republic of the Sudan is not a State Party to the Rome Statute. However, it has the obligation to 'cooperate fully with and provide any necessary assistance to the Court and the Prosecutor' pursuant to paragraph 2 of the Security Council resolution 1593 (2005). The Republic of the Sudan is a member of the United Nations since 12 November, 1956, and has agreed 'to accept and carry out the decisions of the Security Council' in accordance with article 25 of the Charter of the United Nations...."

SEE ALSO:

ii. Decision informing the United Nations Security Council about the lack of
cooperation by the Republic of the Sudan: http://bit.ly/aTdq6G

iii. ICC Information sheet on the case against Harun and Kushayb:
http://www.icc-cpi.int/NR/exeres/AC30E0DC-8FE2-4B5C-9714-8D205B01E086.htm

III. RELATED NEWS AND OPINIONS

A. AL-BASHIR'S INAUGURATION AND RELATED INFORMATION

i. "Sudan's Omar al-Bashir is sworn in as president," BBC News, 27 May 2010
http://news.bbc.co.uk/2/hi/world/africa/10169735.stm

"Sudanese President Omar al-Bashir has been sworn into office again, following his controversial win in last month's elections.

President Bashir is wanted by the International Criminal Court (ICC) for alleged war crimes in Darfur. Many international leaders stayed away from the inauguration but at least five African presidents attended the event.

The UN said it was sending the heads of the two UN peacekeeping missions in the country to the ceremony. Taking the oath of office, President Bashir addressed parliament in Khartoum for around 30 minutes. Presidents from Ethiopia, Chad, Malawi, Mauritania, and Djibouti were in the audience.

But the international rights organisation Human Rights Watch (HRW) said governments committed to justice in Darfur should have stayed away from President Bashir's inauguration. ...

In a BBC interview, Amnesty Africa specialist Noel Kututwa denied that the swearing-in showed that the ICC was ultimately powerless.'It delays justice, but it doesn't make the organisation ineffective,' he told the BBC's Network Africa programme. Last month's elections, the first multi-party polls in 24 years, have been recognised internationally, despite their flaws.

The BBC's James Copnall in Khartoum says this may have boosted President Bashir's legitimacy somewhat, but he is still clearly not to everyone's taste. Mr Bashir faces a momentous few months, he says...."

ii. "Sudan says African states mulling withdrawal from ICC," Sudan Tribune, 2 June 2010 http://www.sudantribune.com/spip.php?article35264

"The ruling National Congress Party (NCP) in Sudan today said that there African states which are convening in Uganda are considering a mass withdrawal from the International Criminal Court (ICC).

The Secretary General of political mobilization at the NCP Haj Magid Siwar told the pro-government Sudanese Media Center (SMC) that Rome Statute review conference taking place in Kampala aims at drumming up regional and African support to control NGOs in the continent through the ICC...."

iii. Sudan seeks French support for debt cancellation, ICC, PANA/African Manager, 2 June 2010, http://www.africanmanager.com/site_eng/detail_article.php?art_id=15082

"Sudanese delegates to the 25th France-Africa Summit are seeking French support for Sudan's quest for debt cancellation and a number of political issues, including French support against the International Criminal Court. ..."

iv. "INTERVIEW-Europe should engage Sudan, Norway minister says," Reuters, 1 June 2010, http://uk.reuters.com/article/idUKMCD161348._CH_.2420

"Europe should engage Sudan as a priority ahead of a southern referendum on independence, despite an International Criminal Court arrest warrant for President Omar Hassan al-Bashir, a Norwegian minister said on Tuesday.

Foreign Minister Jonas Gahr Stoere said Norway supported the ICC but that Sudan should be a foreign policy priority for the international community in the run up to the Jan, 9, 2011 southern vote on independence which, if handled badly, would affect the entire continent and beyond.

'I would welcome more European engagement to support this process and avoid letting this ICC issue cripple our political efforts to support a solution to the north-south issue,' he told Reuters.

'Peace and justice; are they one or the other? Now we have to pursue peace and support justice, support justice and pursue peace -- we can do both,' he said in an interview.

European governments, who strongly support the ICC, have been reluctant to send high-level delegations to engage Khartoum since last year's ICC arrest warrant for Bashir accusing him of war crimes in Darfur, and analysts believe this has led to a lack of focus on the key referendum...."

B. SOUTH AFRICA AND AL-BASHIR

i. "Sudan: Arrest Threat for Al-Bashir," Business Day/All Africa, 28 May 2010 http://allafrica.com/stories/201005280031.html

"Sudan's recently re-elected President Omar al-Bashir faces arrest if he visits SA for the World Cup after President Jacob Zuma 's pledge yesterday to abide by international law.

Al-Bashir, who was sworn in for a further term as president yesterday, is wanted by the International Criminal Court (ICC) for war crimes. A warrant for his arrest has been issued.

SA is a signatory to the court's statute. All signatory states have to arrest such wanted individuals if they visit their countries.

This is the second time SA has tied itself in a diplomatic knot over al-Bashir. He was asked to stay away from Zuma's inauguration last year as the controversy threatened to overshadow the event.

During presidential question time in the National Assembly yesterday, Zuma was asked if al- Bashir would be arrested if he responded positively to the invitation sent to all African leaders to attend the World Cup opening.

In response to a question from Democratic Alliance MP Kenneth Mubu, Zuma said he respected international law, and would abide by the law. Mubu repeated the question, and was given the same answer. If al-Bashir does visit, it will be SA's responsibility to arrest him.

Department of International Relations and Co-operation spokesman Saul Molobi could not say yesterday if al-Bashir had confirmed his attendance.

Zuma muddied the water a little when he said that he thought the African Union's decision to request the ICC to postpone its decision to issue an arrest warrant was the correct one.

This was because the issuing of the warrant could have further inflamed tension in Sudan, and made matters worse. The ICC has not withdrawn its arrest warrant for al-Bashir..."

C. ICC PROSECUTOR'S INTERVIEW WITH DPA

i. "Ocampo: Arrest of Sudan's al-Bashir 'matter of time,'" Earth Times/DPA, 1 June 2010
http://www.earthtimes.org/articles/show/326649,ocampo-arrest-of-sudans-al-bashir-matter-of-time.html

"'Arresting al-Bashir is a matter of time ... he is isolated,' Moreno-Ocampo told journalists on the sidelines of a Kampala conference reviewing the performance of the ICC.'Nobody who has been indicted will escape the ICC'..."

D. UPCOMING AFRICAN UNION CONFERENCE IN KAMPALA

i. "Uganda backtracks on invite for Sudan's Omar al-Bashir," BBC News, 8 June 2010, http://news.bbc.co.uk/2/hi/world/africa/10264366.stm

"Uganda has backtracked on comments suggesting Sudan's President Omar al-Bashir was not invited to July's African Union conference in Kampala. Over the weekend, Sudan demanded an apology after Uganda's president was quoted as saying he was not coming.

Since the International Criminal Court issued an arrest warrant for Mr Bashir last year for alleged war crimes in Darfur he has had to limit his travel. Uganda is currently hosting a summit reviewing the progress of the ICC. Mr Bashir denies the ICC charges and the African Union has said it will not honour the warrant.

But on Saturday, Uganda's state house said President Yoweri Museveni had assured the ICC president that Sudan would be represented by other government officials in July.

Following the outrage from Khartoum, however, Uganda's foreign ministry issued a statement to 'clarify' that Mr Bashir had been invited to the summit of African leaders.

'The Sudanese embassy in Kampala has confirmed that they received and sent the invitation letter to Khartoum,' a statement said. Last July, Mr Bashir cancelled plans to travel to Uganda following speculation he could be arrested.

He was overwhelmingly re-elected president in April's elections, although they were marred by an opposition boycott and allegations of fraud."

E. OTHER INFORMATION

i. "ICC Talks to Darfur Refugees in Chad," IWPR, 7 June 2010,
http://www.iwpr.net/report-news/icc-talks-darfur-refugees-chad

"Darfuri refugees living in camps in Chad have welcomed a recent visit by staff of the International Criminal Court, ICC, but say the Hague-based court needs to engage with them more regularly to ensure they are able to exercise their rights as victims.

The outreach and victim participation units of the Hague-based international court spent three weeks in May visiting victims of the long running conflict in Darfur now living in refugee camps in eastern Chad.

The court says the aim of the mission to four of the eight refugee camps in eastern Chad was to reach out to the refugees, and the victim participation and reparation unit also explained the rights of the victims of crimes committed in Darfur, which are under the court's jurisdiction. These rights include the right to participate in the legal procedures against someone charged with the crimes committed against them, as well as the right to seek compensation and reparation if suspects are convicted by the court....

The New York-based watchdog group Human Rights Watch, HRW, has raised concerns about the court's ability to engage with victims on the ground.

HRW's Elizabeth Evenson said this was 'a real challenge" for the court, which lacked adequate staff on the ground.

"The court is based in The Hague. It has staff located in each of the countries or, if security conditions don't permit, in neighbouring countries. But those offices are very small; they are only a few people,' Evenson said, speaking from the ICC review conference currently under way in Kampala, Uganda.

The conference is being attended by representatives of the state parties to the court in an effort to assess its progress since its inception in 2002. The issue of victims and how to reach out to them was scheduled to be a central point of the discussion.

The court says one of the goals of its latest visit to eastern Chad was to establish permanent channels of communication between the camps and the court in The Hague. It says it will have a permanent representative based in Abéché, eastern Chad, by the end of 2010.

Under the court's founding treaty - the Rome Statute - victims of criminal cases before the ICC have a right to representation by a lawyer and to participate directly in the trial of a defendant. They have the right to request specific questions of witnesses and to appear in the courtroom.

Although a group of victims living outside the region have obtained legal representation and are taking part in ICC pre-trial proceedings with regard to Darfur, few of those living in the region have been able to do so. ...

The ICC acknowledges that it has been slow to reach victims of the Darfur conflict, but said it was now working with groups and schools inside the camps to build a network that will help inform refugees of their rights.

'It is true that there has been some delay, firstly because the court is not able to get into Darfur and also because of a lack of communication such as internet,' Chehade explained.

She added that security was another important consideration, as many of those who fled the fighting in Darfur are reluctant to be part of anything connected with the court out of fear for their safety. ...

Evenson said she hoped the ICC conference in Uganda would spur them into action. 'We really hope the review conference will be an opportunity for states to understand what it is the court needs to do in the situation countries, to reach victim communities, to inform them about their rights, and to facilitate their participation,' she said."

ii. "Darfur sees bloodiest month in two years, UN says," The Globe and Mail, 7 June 2010,
http://www.theglobeandmail.com/news/world/africa-mideast/darfur-sees-bloodiest-month-in-two-years-un-says/article1594744/

"Nearly 600 people died in rebel and tribal fighting in Sudan's Darfur region in May, the bloodiest month that the territory has seen in more than two years, UN officials said on Monday.

The figures underlined the challenge facing mediators seven years into the conflict that has continued in the face of pressure from Washington, war crimes prosecutions by the International Criminal Court and campaigning by activists.

'There were 491 confirmed deaths and 108 unconfirmed deaths,' said one official from Darfur's joint UN/African Union UNAMID peacekeeping force who added it was the largest death count recorded since the force set up in January 2008."

SEE ALSO:

i. "ICC sends Sudan's failure to honour arrest warrants to Security Council," UN News Center, 26 May 2010,
http://www.un.org/apps/news/story.asp?NewsID=34819&Cr=darfur&Cr1=

ii. "ICC formally requests UNSC intervention over Sudan's non-cooperation," Sudan Tribune, 26 May 2010, http://www.sudantribune.com/spip.php?article35210

iii. "Amnesty: Sudan's President Arrest Warrant is Landmark Victory," by MacKenzie Babb (VOA News), 27 May 2010,
http://www1.voanews.com/english/news/africa/Amnesty-International-Sudans-President-Arrest-Warrant-is-Landmark-Victory-for-Human-Rights-95003829.html

iv. "ICC review kicks off as Bashir is sworn in," by Angelo Izama (Daily Monitor), 28 May 2010,
http://www.monitor.co.ug/News/National/-/688334/927342/-/x08u2q/-/

v. "Opinion: UN presence at Bashir's inauguration spells trouble for ICC," by Betwa Sharma (Global Post), 27 May 2010,
http://www.globalpost.com/dispatch/worldview/100527/omar-bashir-international-criminal-court-crimes-against-humanity

vi. "Sudanese president vows 'objective dialogue' with West," Sudan Tribune, 27 May 2010, http://www.sudantribune.com/spip.php?article35221

vii. "Sudan president Omar al-Bashir sworn in amid outcry," By Xan Rice (Guardian), 27 May 2010,
http://www.guardian.co.uk/world/2010/may/27/sudan-president-omar-al-bashir-sworn-in

viii. "Women Activists Want Bashir Arrested," New Vision, 31 May 2010, http://www.newvision.co.ug/D/8/13/721374

ix. "Government: ICC Targets Sudan's Political System," Sudan Vision, 2 June 2010, http://www.sudanvisiondaily.com/modules.php?name=News&file=article&sid=57407