Fatou Bensouda has given her last briefing as chief prosecutor of the International Criminal Court (ICC) to the UN Security Council on Wednesday, lamenting that the tribunal has not yet brought justice to victims of atrocities in Sudan’s western Darfur region. But, she said, a new era in Sudan and the transfer of the first Darfur suspect to the court should give them hope.
Bensouda said Darfur victims she spoke to last week had one message: Sudan’s transitional government should hand over three suspects sought by the court who are in its custody – former President Omar al-Bashir, who is accused of genocide; former defence minister Abdel Raheem Hussein, and former interior minister and governor Ahmad Harun.
Bensouda, whose mandate ends June 15, said she has focused on Darfur since crimes being committed there were referred to the the court by the Security Council in 2005, when she was deputy prosecutor. But her recent visit to Sudan and Darfur was a first – a memorable trip that she said was “a strong reminder that we should focus on achieving justice for the victims and finding lasting peace for the people of Darfur.”
Bensouda cautioned, however, that “the road ahead remains long and fraught with dangers,” saying that Sudan’s transition following al-Bashir’s overthrow in April 2019 after mass protests demanding civilian rule “is still in its infancy”.
Still, she said, after years of hostility and no cooperation, “the ICC and the government of Sudan have turned a new page in their relationship” and have been engaging in “constructive dialogue” and a “good spirit of cooperation.”
The vast Darfur region was gripped by bloodshed in 2003 when rebels from the territory’s ethnic central and sub-Saharan African community launched an armed rebellion accusing the Arab-dominated government in Khartoum of discrimination and neglect.
The government, under al-Bashir, responded with a scorched-earth assault of aerial bombings and unleashed local nomadic Arab militias known as the Popular Defence Forces on the population, resulting in countless reports of mass killings and rapes. Up to 300,000 people were killed and 2.7 million were driven from their homes.
Bensouda said she urged the handover of al-Bashir and the others at meetings with Sudanese government officials, including the head of the Sovereignty Council, General Abdel Fattah al-Burhan, and Prime Minister Abdalla Hamdok.
“Sudan is under a legal obligation to surrender the suspects” under the Security Council resolution that referred Darfur to the court, she said.
Harun, who faces 20 counts of crimes against humanity and 22 counts of war crimes, remains at large. His presence at the Hague-based court is required for the trial to begin.
Bensouda said Harun’s transfer is urgent so he can be tried with Sudanese militia leader Ali Kushayb, who voluntarily surrendered a year ago to the court in The Hague, Netherlands. She appealed to the Security Council “to prevail upon Sudan to immediately honour Mr Harun’s wish and facilitate his transfer to the ICC without delay.”
Richard Dicker, international justice director at Human Rights Watch (HRW), said: “It’s well past time for Khartoum to honour its responsibility to the victims of Darfur. Surrendering these three suspects would signal an indelible commitment to the rule of law.”
Adam Day, programme director at United Nations University’s Center for Policy Research who was a political officer with the UN-African Union peacekeeping force in Darfur in 2008, said the question now is: “What incentives can the international community offer the new Sudanese government to turn over the suspects to the ICC? … Will major international donors insist that their support be conditioned on the handover of al-Bashir” and the others?
“As a cash-strapped government in desperate need of support, that could tip the balance towards handover,” he told The Associated Press.
Eric Reeves, a retired Smith College professor who has worked on Sudan for 22 years and is a trustee of the Darfur Bar Association, said Bensouda has spent her entire time trying to get the Darfur cases prosecuted “and has not succeeded”.
“She knows as well as anyone if the court can’t bring convictions in the case of Darfur then the court has probably seen its relevance either diminished entirely or diminished to the point where it just can’t function,” he said. “If it fails it will be a major failure for international justice.”
The ICC was officially established on July 1, 2002, to hold accountable perpetrators of the world’s most serious crimes – genocide, war crimes and crimes against humanity – in cases where adequate national judicial systems are not available.
It has 123 member nations, and Bensouda’s staff is currently investigating alleged crimes in 13 other places from Democratic Republic of Congo, Central African Republic and Libya to Bangladesh-Myanmar, Afghanistan and the occupied Palestinian territories. Darfur was the first referral to the court by the Security Council.
‘Without fear or favour’
Nine Security Council members that are parties to the court issued a statement after Wednesday’s meeting, calling for intensified efforts to surrender all suspects, commending Sudanese authorities and the UN for facilitating Bensouda’s visit, and expressing gratitude to the prosecutor for her persistence in fighting impunity and pursuing international justice “without fear or favour”.
Day from the United Nations University recalled that when Bensouda became prosecutor in 2011, the court faced criticism for being overly focused on African conflicts as well as the risk that some African countries might withdraw from the court.
“One of Bensouda’s biggest accomplishments was in fact saving the ICC from that negative trajectory, restoring the legitimacy of the international community,” he said.
“I think Bensouda has successfully kept Darfur on the Security Council’s agenda, and has made a consistent and well-reasoned point that peace in Darfur cannot be achieved without a meaningful reckoning with past human rights abuses,” Day said.
HRW’s Dicker referred to sanctions against Bensouda and another court official by US President Donald Trump in 2020 over the court’s investigations into alleged war crimes by the US in Afghanistan and by US ally Israel in the Palestinian territories. They were lifted by the Biden administration on April 2.
“Fatou Bensouda brought a staunch commitment to defending the independence of her office in the face of unprecedented pressure that was aimed at exacting a high personal cost,” Dicker said. “Yet, she did not flinch. This prosecutorial legacy is fundamental to the court’s legitimacy.”