‘Prospect of arrests in Darfur case bleak’: ICC prosecutor

Some of the International Criminal Court's resources and staff on the Darfur case are working on other criminal cases since the prosecutor's suspension of investigations into the western Sudanese region last year. The ICC prosecutor claimed the office is able to immediately “pull back” to active investigations into the case against President Omar Al Bashir, among others, if she decides to reverse the suspension. 31 March 2015 marks ten years since the Security Council passed Resolution 1593 that referred the situation in Darfur to the ICC.

International Criminal Court (ICC) prosecutor Fatou Bensouda announced the suspension of the investigation into war crimes in Darfur for a lack of action by the United Nations Security Council (UNSC) on 12 December 2014. The hibernation does not mean that the prosecutor's office has abandoned the Darfur case. “In fact, far from it,” Bensouda said in an exclusive interview with Radio Dabanga on Friday, following a statement of the ICC Pre-Trial Chamber II on 9 March. That day, it informed the UNSC about Sudan’s non-cooperation in the arrest of its incumbrent president, and left the council to take the necessary measures it deems appropriate. 

Radio Dabanga: Your decision to freeze the investigations into war crimes in Darfur has led to disappointment among many internally displaced people in the region. They raise questions about the suspension because in 2014, fighting and displacement in Darfur continued in large numbers, also according to the UN. And you suspended the case. Why?

ICC prosectuor Fatou Bensouda: “Hibernating the case simply means that the office's activities in Darfur will be limited to monitoring the Sudan situation. And it will not be, for the time being, we will not be conducting active investigations. As we have to prioritise our cases, and also shift our resources to cases that [….] are in fact approached in trial.

“The prospects of arrest [of suspects] in Darfur are very remote. Also the UNSC, who referred the case to us, have themselves shown to be uncommitted to take any action to arrest. So I’m facing an environment here, where the office's resources for investigation are already overstretched. My office was left with no choice but to hibernate investigative activities.

“But I want it to be absolutely clear, really, that the situation has been hibernated does not in any way mean that the office’s abandoning the cases in Darfur.”

Some people in Darfur think you are abandoning them.

“What they think is not correct. We are monitoring the cases but we are not doing active investigations in the new situations. For the moment, if the situation changes for us, I can immediately pull back [to active investigations]… The office remains open to receiving additional information on the situation of Darfur.

“Also, the witnesses [who provided testimonies in the case] have nothing to fear, because as the case is still open, the responsibility to protect the witnesses remains.”

"We did not have any team ready to take on the case of Dominique Ongwen (LRA) after his surrender."

Comments have been made that the hibernation will eventually lead to stopping the whole case of Darfur. Can the case be separated into pieces for the individuals?

“I completely disagree with that advice that has been given, because what has happened is the case is still a case in my office. […] This is the situation: it is not two cases, it is not three cases, it is one situation. It is the Darfur situation.

“We have issued four warrants, against [President Omar] Al Bashir, against [South Kordofan Governor, Ahmed] Harun, against [former Janjaweed leader] Ali 'Kushayb', and against [Minister of National Defense, Abdel Rahim Muhamed] Hussein. […] also, you remember the case against [Bahar Idris] Abu Garda, against Banda [Abaker Nurain], [Saleh Mohamed] Jerbo…

“How long will we continue to go on investigating and not getting anything, with all the arrest warrants not executed? I have a lot of cases that need attention equally. […] For instance, we had the surrender of Dominique Ongwen [top leader of the Lord Resistance's Army (LRA) in Uganda, taken into custody on 6 January this year in the Central African Republic and appeared before the ICC on 26 January]. We were not expecting this at all. We did not have any team ready to take it. I had to take resources away, including those from Darfur, and put it there to build a team, able to do the case of Ongwen.”

Are you daily monitoring the situation in Darfur?

“Of course. There are people in my office who are still handling the Darfur file. There is a senior trial lawyer in fact, who has been put on that case together with others who are still there. […] But let me clarify to you that the warrants of arrests against Mr Al Bashir and all of them, they remain in place. And I will continue to call for their execution.”

How is the office handling the reported mass rape in Tabit, North Darfur, that happened on 30 November? The rapes of 221 women and girls by Sudanese soldiers have been confirmed by Human Rights Watch in February.

“What I can tell you at the moment is that we are receiving information about this incident. I have to receive information, plus all the reports – everything that I can get from reliable sources – and I will analyse it in my office. Then we will decide on the next steps. If it warns me to reconsider my decision from hibernation to active investigation again, this will be done.”

There may be plans by some countries to invoke Article 16 of the Rome Statute (the founding charter of the ICC), deferral of investigation or prosecution, in the case of Al Bashir.

“I think this has been attempted before, but it was rejected by the UNSC*. If you do not meet [the conditions under Article 16], I do not think the UNSC will grant any deferral. [The criteria for a deferral are that ICC investigations are detrimental to the maintenance of international peace and security, or that suspending the court's activities would contribute to peace in Sudan.] To be clear, deference is for one year. And it may be renewed but it may also not be renewed.”

* The fifteen members of the Security Council have not previously submitted a majority vote for a deferral of an ICC investigation or prosecution. The split in the council has resulted in the turn-down of requests by Kenya in 2011 and in 2013, and the African Union for all sitting African heads in 2014.

What is your reply to the suggestions that the hibernation of the case is a result of a deal made with Sudan?

“I do not understand how this can be. The case is waiting for an arrest for it to continue before judges. […] We need the cooperation of Sudan. You will recall that Sudan has an obligation on the international law to execute even the warrants on its territory.”

“We cannot continue asking for the arrest warrants to be executed and putting a lot of resources there just sitting, waiting, while nothing is happening.”

Al Bashir still travels from country to country. What can the ICC do against this?

“We do what we can. Sometimes not in an open way, but we do what we can to encourage the countries to make arrests. But you have to remember that again, it is a matter of cooperation. And an obligation on those states to arrest and surrender, especially those states part of the Rome Statute. But this is not happening for mainly political reasons.

“The ICC cannot go and punish a country. What we can do is to go to the UNSC to inform them that there is no cooperation – which we just did recently. Also, we tell the Chamber that Mr Al Bashir is travelling to country X and Y, to contact that country and ask for reasons why they cannot arrest Mr Al Bashir. Unfortunately this is the system. This is the system I know that Mr Al Bashir is pushing […] and continues travelling. But I'm certain that one day, there will be a country that will be willing to exercise its obligation under the Rome Statute, and will arrest him.”

What do you believe is the future of the Darfur case at the ICC?

“I want to just send a message to the victims. The victims of mass crimes that are committed in Darfur should not feel abandoned. The recent surrender and transfer of Dominique Ongwen, senior commander in the LRA, into the custody of the court, in the Uganda situation, has a very important message for the Darfur cases. That is that the ICC is permanent and that the ICC is patient. And no matter how long it takes, the perpetrators of mass crimes will ultimately face justice.”

What will you say to the UNSC in the next ICC report, to be expected coming June?

"I have not abandoned the case. That means that I'm receiving information on the situation.I continue to monitor the situation in Darfur and continue to call for he execution of the warrants that have been issued in Darfur. So, more or less, the case is on. It is not off the table. It is still on the table. But […] we cannot continue asking for the arrest warrants to be executed and putting a lot of resources there just sitting, waiting, while nothing is happening.”