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Sudan: ICC Prosecutor Briefs UN Security Council on Sudan Investigation pursuant to Resolution 1593

13 Dec 2005

The Prosecutor of the International Criminal Court, Mr. Luis Moreno-Ocampo, briefed the Security Council of the United Nations today, Tuesday, 13 December 2005. The briefing was held in response to the Security Council's request in Resolution 1593 that the ICC Prosecutor report to the Security Council every six months on the actions taken by the Office of the Prosecutor following the Security Council's referral of the situation in Darfur to the ICC. Following the briefing, Secretary-General Kofi Annan, who attended the briefing, addressed journalists. H.E. Sir Emyr Jones Parry, Permanent Representative of the United Kingdom to the United Nations and Security Council President for December 2005, and ICC Prosecutor Moreno-Ocampo also answered questions at the media stakeout.

The archive webcasts of the Security Council meeting as well as the media stakeouts are accessible at http://www.un.org/webcast/sc.html.

The Prosecutor's statement and report are available at http://www.coalitionfortheicc.org/documents/declarationsresolutions/UN1593.html.

Please find below (1) a summary of the Prosecutor's statement and report; (2) excerpts from Secretary-General Kofi Annan's 'off the cuff' remarks; and (3) an informal transcript of remarks by H.E. Sir Emyr Jones Parry and ICC Prosecutor Moreno-Ocampo at the media stake-out.

A news digest of relevant media coverage will follow tomorrow.

Warm Regards,
Esti T. Tambay
Information and Analysis Officer
Coalition for the International Criminal Court

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Summary and Main Points of Report and Statement by Mr. Luis-Moreno Ocampo to the Security Council pursuant to UN Security Council Resolution 1593

Report and Statement available at http://www.coalitionfortheicc.org/documents/declarationsresolutions/UN1593.html

The Prosecutor’s statement to the UN Security Council pursuant to Resolution 1593 summarized some of the main points of his report. In particular, the Prosecutor’s report and statement noted:
- Conduct of the Investigation: During the first phase of investigation, the OTP gathered facts on crimes alleged to have occurred in Darfur as well as groups and individuals responsible for them; the OTP completed the recruitment of a multi-disciplinary team. During the second phase, the investigation will “focus on a selected number of criminal incidents and those persons bearing greatest criminal responsibility.” The OTP has identified particularly grave events. It continues to monitor and analyze ongoing violence.
- Identification of Persons Bearing Greatest Responsibility: The list of 51 names prepared by the International Commission of Inquiry on Darfur remains sealed and “is in no way binding on the Prosecutor.”
- Investigative Activities during the Reporting Period: The Prosecutor highlighted that “Witness protection is an issue of paramount concern to the ICC.” In addition, given the climate of insecurity, “investigative activities have so far taken place outside Darfur” but have included identification of witnesses and recording of some formal statements as well requests for assistance. The OTP has established a semi-permanent presence in the region.
- Admissibility and Complementarity: The OTP “continues to gather and assess information relation to the various mechanisms established by the Sudanese authorities”, including two new Special Courts and other recently established committees. In this regard, the legal test for complementarity according to Article 53(2)(b) “is specific to the cases selected for prosecution, and not the state of the Sudanese justice system as a whole.” The Prosecutor noted that “Up to this point, the work of the Special Court does not suggest that cases likely to be prosecuted before the [ICC] would be inadmissible”.
- Interest of Justice: The OTP will continue to consider whether a prosecution is not in the interest of justice and will “follow various national and international efforts to achieve peace and security, as well as the views of witnesses and victims”.
- Cooperation: The Prosecutor reiterated that Resolution 1593 requires the Government of Sudan and all of other parties to the conflict to cooperate fully. Other states and organizations are also urged to cooperate. “The Court has continued to press for the signature of the ICC-AU relationship agreement, the text of which was finalized in May 2005.” The Prosecutor has also been in contact with AMIS and hopes to have an opportunity to brief their Peace and Security Council.
- Visit to Sudan and Government Cooperation: The Prosecutor announced that “on 17-24 November 2005 representatives of the [OTP] and the Registry of the ICC visited Khartoum” during which “a request for assistance was made to the Sudanese authorities to undertake several interviews […]. In response to this request Sudanese officials have agreed to organize a visit to the Sudan by the end of February 2006 […] to meet with the Special Courts and other relevant judicial bodies in order to assess national proceedings in relation to alleged crimes committed in Darfur. In addition, officials also agreed that, in preparation of the other interviews, the Ministry of Defence would cooperate in establishing and submitting, by March 2006, a comprehensive report on matters to be identified in advance by [the OTP]. […] The Government of the Sudan has now provided this written confirmation.”

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‘Off the Cuff’ Remarks at Media Stakeout by Secretary-General Kofi Annan

Transcript of Informal Remarks by Secretary-General Kofi Annan: http://www.un.org/apps/sg/offthecuff.asp

“Secretary-General Kofi Annan: Good morning, ladies and gentlemen. I just came from the Council, where we had a very good briefing by Mr. [Luis Moreno] Ocampo [Prosecutor] of the ICC [International Criminal Court]. And he did stress the point that those who committed those crimes in Sudan must be brought to account. And of course, he sees it very much as part of the peace and the transition process, and would expect the Council to stay closely engaged and to give him all support. He also indicated that he would need to work with the African Union and require their support as well. He is continuing his discussions with the Council, but I think it is hopeful that he has come this far in the case. […]

Q: […] And how satisfied are you, as far as Sudan is concerned, with what the Sudanese Government has been doing in Darfur so far?

SG: […] On Sudan, I think we still have very serious problems in Darfur. We have criminal elements; we have violence; we have attacks on humanitarian activities. There are some areas where our humanitarian people cannot go and therefore the Government and the rebels have to honour the ceasefire agreement they signed and take all measures to ensure security and protection of the people in the region. But what is even more important is for them to press ahead in Abuja and get a political agreement which would ensure the longer term stability.

Q: In Sudan, if the Council took action against Syria for not cooperating, should it do something for not cooperating with the ICC? It's pretty obvious from the Prosecutor's speech, that he's getting absolutely nowhere on any aspect of this. And he has been collecting information since March. What does that mean? […]

SG: On Sudan, I think the Council is, in fact at this very minute, discussing this issue with the Prosecutor to get much more details as to his work, the extent of cooperation by the Sudanese Government and others. And I think after that, here the Council will have to make a judgment whether cooperation has been enough or they have not cooperated and that they will have to take certain measures. So I think it is a bit premature for me to say whether they should impose sanctions or not for lack of cooperation by the Government. […]

Q: Human Rights Watch, in its report, they have listed the names of people that should be called for the investigation and to submit to the work of the ICC in Sudan. And the names included the President of Sudan, Omar Hassan Bashir. Do you agree that the President of Sudan and other officials should be asked to be investigated in the work of ICC?

SG: I'm afraid that judgment belongs to the Prosecutor who is in the building today and is talking to the Council, not to me. I would not want to take on the Prosecutor's job. He will have to make that judgment.

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Unofficial Transcript of Informal Remarks at Media Stakeout by H.E. Sir Emyr Jones Parry and ICC Prosecutor Luis Moreno-Ocampo

H.E. Sir Emyr Jones Parry (United Kingdom): Good morning, can I report you what’s been a very significant morning. The Council having earlier this year referred the situation in Darfur to the International Criminal Court, we’ve had a first progress report from the Prosecutor, Mr. Moreno Ocampo, and had a dialogue with him subsequently in private. And I want to express on behalf of the Council, our appreciation to the Prosecutor for his report and especially for the work which he and his team are doing. The Council repeats again the need to end impunity in Darfur, to prevent the atrocities occurring, to prevent their recurrence, and to then insure that those involved are brought to justice. That's what it's all about and our discussions this morning confirmed that the Prosecutor is in close cooperation with the Government of Sudan, that those discussions are proceeding so far, well. The Council expects them to be maintained so that any cooperation that the Prosecutor expects from that government should be forthcoming, especially on the question of access to witnesses. But that in general terms, we look to a close cooperation between the ICC and the African Union, but that can come to a closer fruition that from that, there will be enough cooperation on the ground so that there will be protection of witnesses where necessary, but that the process of the investigation should unfold. In conclusion, that as far as the Council is concerned, we're quite clear that we are at the disposition of the Prosecutor, we can help him with certain aspects, but his independence is total. We look to him to continue and to take this investigation to its logical conclusion. And we're very grateful, again, to the work he's doing.

Mr. Moreno-Ocampo: With regards to the mandate, we are carrying out our mandate. We're investigating Darfur [from outside]. Why? Because the security there made it impossible to go there and interview witnesses in Darfur itself. That's why what we are doing is identifying witnesses in 17 different countries and we are proceeding in these countries. So we've identified more than 100 […] witnesses and we are taking these interviews. So, we're doing our work outside Darfur. We went to Khartoum to [work on cooperation]. We have a roadmap now - in February, we're going there to interview judges; in March, we'll see the report from the defense about how they were organizing their work and then we'll interview other members of the government there.

Q: Who's putting witnesses at risk? Is it the government and the rebels? Is it one or the other?

Q: Could you tell us why, in seven months, you have not been able to sign an agreement with the African Union - what's holding that up?

Mr. Moreno-Ocampo: The protection of people in Darfur is the responsibility of the government of Sudan, and the support of the African Union. My responsibility and the Court's responsibility is to protect witnesses. In the current situation, we cannot offer the witness the classic protection we are providing otherwise. The way to protect them right now is by not going there to interview them. The Security Council proposed to support our effort and I'm sure in the future we'll finalize the agreement we have with the African Union - we need to work with them closely.

Q: But what's been the problem?

Mr. Moreno-Ocampo: You can call them.

Q: Who's stopping you from protecting witnesses?

Mr. Moreno-Ocampo: The system of protection of witnesses requires areas in which some forces could control the situation and that is not happening today. The evaluation is that there are no areas in which they could be protected so what we are doing is doing an investigation from outside Sudan, and we'll do it.

Q: Are you satisfied with the cooperation that you're getting from the Sudanese government? There have been certainly some human rights groups that say you have not been getting sufficient cooperation.

Mr. Moreno-Ocampo: We just did one request. My people were in Khartoum in November. We discussed with them what we need. We agreed - they will see the letter. They agreed there were plans, so right now we are working well.

H.E. Sir Emyr Jones Parry (United Kingdom): I was absolutely categoric about what I said earlier about our expectations of the cooperation by the government of Sudan. Secondly, in terms of what the Prosecutor is saying now, on the basis of the contacts which took place last month in Khartoum, things are reasonable and progressing. Thirdly, our assumption is they should continue to. Now at this stage, I think it would be inappropriate to react to press comments or statements we haven't seen, but we will judge the government of Sudan by its actions. If it becomes apparent that the Prosecutor is not receiving the cooperation we expect from the government, then the Council will have such a report from the Prosecutor and we will need to respond to that and we will respond to that. But for the moment, that's hypothetical.

Q: Are you aware that this morning Sudan has said that it will not cooperate with the ICC. Are you aware of this statement?

H.E. Sir Emyr Jones Parry (United Kingdom): We've heard it from both of you, but all I can tell is it hasn't been communicated to us in any official sense and there's nothing officially to respond to. I repeat, unless there is something officially communicated to us, or that the actions of the government with the Prosecutor and his team lead us to that conclusion, we're not at this stage in a position to react to something which is largely hypothetical.

Q: Human Rights Watch has called for investigating top leaders, including the President. Do you take that seriously and do you think that the Prosecutor takes it seriously?

H.E. Sir Emyr Jones Parry (United Kingdom): Let me just interpret for myself and I won't try and do this for the Council: What the Prosecutor told us was that the nature of the attacks in Darfur demonstrated a degree of coordination, a degree of strategic operation, which implied that someone was in command and control of that operation. His intention was to ascertain who it was and hold them responsible. In response to a quite specific question, whether the path of that command and control above actually led back to, the Prosecutor was quite clear that he would pursue the path until he found whoever might have been ultimately responsible. So again, we rely on the Prosecutor to follow his responsibilities. […]

Q: The HRW report naming top leaders, even the President of the country. In your report, you said to be sensitive to the political dynamics of the country - can you elaborate on that a little bit?

Mr. Moreno-Ocampo: I think I'll disappoint you because I will not elaborate. I see my duties to do my investigation, I will present my case before the judges, and then have the opportunity to report to the Security Council and you. So that's why I will always invite the Ambassador of the UK, the Ambassador, to be with me to meet the press because he can answer your question much better than me. I can say nothing to you, thank you very much.

Q: What about prosecutions that don't serve justice? Does that mean witnesses, what does that relate to?

Mr. Moreno-Ocampo: Today, we are doing our investigation. We are investigating the cases outside the country - we are investigating Darfur outside Darfur. We are doing that. The conclusion you will see after we present our [case] to the judges. In the meantime, the Ambassador will answer all your questions. Thank you very much.

Q: [inaudible]

H.E. Sir Emyr Jones Parry (United Kingdom): Well, they've been in discussions in Khartoum, so yes, they've been in Sudan, but they haven't gone on the ground in Darfur yet.

Q: [inaudible]

H.E. Sir Emyr Jones Parry (United Kingdom): No, others have been in Khartoum, it's not just him.

Q: Are they investigating the Sudan war crimes trial or are they investigating allegations of human rights breaches in Darfur?

H.E. Sir Emyr Jones Parry (United Kingdom): The remit from the Council is very much the second. That's what they're about. […]

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