ICC Prosecutor Reports on Sudan's Obstructionism
On December 5, 2007, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, delivered a report to the Security Council detailing the failures of the government of Sudan to comply with its legal obligation to arrest and surrender to the ICC Ahmad Muhammad Harun and Ali Muhammad Ali Abd Al Rahman (aka Ali Kushayb), two men suspected of committing crimes against humanity and war crimes in Darfur. The Prosecutor urged the Security Council to hold Sudan responsible for failing to meet its legal obligations, a failure so profound as to impede the Court from proceeding with the cases against Ahmad Harun and Ali Kushayb. He also announced that the Office of the Prosecutor is investigating the continuing violence in Darfur, potentially leading to additional indictments.
Action and Obstruction
The U.N. Security Council, in its Resolution 1593 (2005), referred the situation in Darfur to the Prosecutor for investigation and possible prosecution of individuals should reasonable evidence of crimes under the ICC’s jurisdiction be established. The resolution passed under Chapter VII of the UN Charter, obligating all states—including Sudan—to comply with the ICC’s investigation and any subsequent prosecution. During the Prosecutor’s twenty-month investigation into atrocities in Darfur, the government in Khartoum provided minimal cooperation. The interaction evolved into outright hostility after ICC judges issued arrest warrants in April 2007 for Harun and Ali Kushayb. Sudan has steadfastly rejected the ICC’s jurisdiction over the cases and called the Prosecutor a “junior employee doing cheap work.”
The Alleged Criminals
Both Harun and Ali Kushayb are free to move as they please within Sudan, and it is clear that their role in the atrocities committed in Darfur will never be investigated domestically by the highly politicized Sudanese judiciary. Currently, Harun is Sudan’s minister of State for Humanitarian Affairs, giving him authority over the refugee camps that were created as a direct consequence of his allegedly criminal activities in Darfur. He also controls the flow of humanitarian aid in Darfur. In obvious defiance of the international community and the Security Council, Khartoum appointed Harun to head a commission charged with investigating the very human rights violations he is suspected to have committed in Darfur. Sudanese authorities held Ali Kushayb—a leader of the Janjaweed militia—in custody for a short period on “suspicion of violating Sudanese laws” for crimes committed in Darfur, but released him in early October 2007 for alleged lack of evidence.
After the Prosecutor’s report, most members of the Security Council spoke forcefully about the need for the Council to issue a strong statement urging the government of Sudan to comply with its legal obligations under Resolution 1593. Unfortunately, it does not appear that all Council members agree with this sentiment. China and the United States are key to ensuring a strong Security Council response due to their influence. However, China was less than enthusiastic about further Council action on the matter, claiming that a political solution in Darfur must precede accountability. This position is not surprising given China’s close ties financial, political and military ties to Sudan, a relationship that has grown closer in spite of the continuing carnage in Darfur. Moreover, China has used its threat of veto within the Security Council to water down resolutions rebuking the government of Sudan’s actions in Darfur before, and it might well do it again in this case. Although the United States said Sudan has an obligation to comply with Resolution 1593, the U.S. has not publicly committed itself to a strongly worded Security Council response to the Prosecutor’s report.
“The Mother of all Fabrications”
As the Prosecutor made clear, there is little hope that Sudan voluntarily will surrender Harun and Ali Kushayb to the ICC without a significant response from the Security Council. In reacting to the report, the Sudan UN ambassador Abdalmahmood Abdalhaleem explained, "There's no way we're going to surrender our citizens to the ICC,” decrying the report as “the mother of all fabrications.”
With prosecutions of Harun and Ali Kushayb stalled due to Sudan’s obstructionism, the Security Council must decide whether to enforce or backtrack on the obligations it established in Resolution 1593. Anything less than a strong statement by the Security Council urging Sudan to fully comply with Resolution 1593—including immediately surrendering Harun and Ali Kushayb to the ICC—risks signaling to Khartoum that its agents can continue to perpetrate crimes against humanity in Darfur with impunity.