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13 December 2012 – Security Council - Sudan/Report of the Prosecutor of the ICC – Statement by Mr. Martin Briens, Deputy Permanent Representative of France to the United Nations

(UN translation)

I thank Prosecutor Bensouda her briefing.

Since 2005, the Office of the Prosecutor has reported to the Security Council in a transparent manner on the work of investigation and the proceedings carried out by the International Criminal Court (ICC), and we are grateful for that.

Nearly eight years after the Council referred the question at hand to the Court, the results are mixed. The Office of the Prosecutor and the judges of the Court have implemented their mandate. Preliminary analyses of crimes have been carried out, investigations have been undertaken, five arrest warrants against four individuals have been issued, and judicial proceedings against rebels who voluntarily gave themselves up have commenced. The first trial is about to open against two rebel leaders, Mr. Abdallah Banda and Mr. Saleh Jerbo, for the attacks on peacekeeping troops in Haskanita. It cannot be denied that the Court’s action has had an impact — criminals hesitate to perpetrate the massive attacks that was their hallmark in 2003.

But there is also a darker side, of which the Prosecutor reminded us this morning. First of all, four individuals accused of war crimes and crimes against humanity — one of whom is also accused of genocide — continue to evade the Court overtly and blatantly, despite the arrest warrants issued for them by the International Criminal Court. These are the Sudanese President Mr. Al-Bashir, the former militia leader Mr. Ali Kushayb, the Defence Minister Mr. Mohammed Hussein, and the present Governor of Southern Kordofan, Mr. Ahmed Haroun, are at liberty. Secondly, those four individuals — who are being prosecuted, let us remember, for the massacre and displacement of thousands of civilians, and are accused of having perpetrated genocide by methods that they hoped were invisible, such as rape, persecution, and the intentional blocking of access to aid — are still in key positions and able to order further atrocities. As illustrated by current affairs before the Council, impunity is encouraging them to use the same methods in Southern Kordofan.

Thirdly, despite the Sudanese Government’s deceitful efforts, reports confirm air strikes, the failure to disarm the Janjaweed militias, arbitrary arrests, sexual violence and obstruction to humanitarian aid. Finally, in contrast with the announcements made by the Sudanese authorities and the multiplication of the Sudanese special courts supposedly set up to prosecute the perpetrators of serious crimes committed in Darfur,no legal proceedings have been undertaken.

Unlike Libya, which undertook to prosecute those accused by the ICC pursuant to the complementarity provisions of the Rome Statute, the Sudan has not taken the slightest measure to try the four accused.

The Office of the Prosecutor President Mbeki’s High-Level Implementation Panel have scrutinized the work of all the special courts established since 2005 in the Sudan. They have done nothing, and they can do nothing since all the perpetrators of crimes are enjoying total immunity. As Ms. Bensouda reminded us, the Panel of the African Union made the same finding. All of the foregoing elements f lout resolution 1593 (2005) and other Council resolutions on the Sudan, the most recent of which being resolution 2063 (2012) of 31 July. The Sudan’s obligation to cooperate pursuant to those resolutions is not being respected.

I would also point out that the implementation of the peace process is riddled with failings. Reconstruction is stymied and the return of internally displaced persons and refugees has still not taken place, while the resurgence of fighting is increasing insecurity. Resources transferred to the Darfur Regional Authority are still too few. In those conditions, people are not seeing any of the improvements that alone would win their support for the peace plan.

There will be no lasting peace in Darfur and in the Sudan as a whole if we leave crimes against civilians unpunished. Experience has proven that. In Blue Nile and Southern Kordofan states, the crimes that were committed in Darfur are being replicated — the same crimes, the same organization and the same victims, civilians. The Office of the Prosecutor has drawn its conclusions and has asked the Council to think afresh and consider new legal or operational measures to ensure the implementation of its resolutions.

Our Council must be consistent. The Secretariat and the States parties to the Rome Statute must also do so.

First, contacts with fugitives from justice are unacceptable. They cannot be considered interlocutors and should not set foot in the territory of a State Party without being arrested.

Secondly, we must respond to the letters from the Court addressed to us through the Secretary-General on non-cooperation issues.

Thirdly, we could certainly resume our consideration of the listing of individuals concerned by the Sanctions Committee. That was raised repeatedly in the debate of 17 October last under the presidency of Guatemala (see S/PV.6849).

I would remind the Council that paragraph 3 of resolution 1591 (2005) explicitly states that those violating international humanitarian law or international human rights law shall be subject to sanctions. All those measures have a final goal — the arrest and transfer to The Hague of the accused pursuant to resolution 1593 (2005), which, let us remember, is mandatory for all.

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Organisation des Nations Unies Présidence de la République France Diplomatie La France à l'Office des Nations Unies à Genève Union Européenne Première réunion de l'ONU