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UN Official Urges Sudan to Cooperate With ICC

Human rights commissioner says Sudan must detain suspects if arrest warrants are issued.
By Katy Glassborow
The United Nations High Commissioner for Human Rights has warned the government of Sudan that it will be legally obliged to detain two men named in connection with war crimes in Darfur if arrest warrants are issued by the International Criminal Court, ICC.

Speaking after an International Women's Day conference in The Hague on March 8, Louise Arbour told IWPR that if the Sudanese adopt a policy of non-compliance with the ICC it would be interpreted by the international community as non-compliance with the UN Security Council.

On February 27, ICC prosecutors released evidence that they hope can prove that Ahmad Muhammad Harun, formerly Sudanese interior minister and now minister of state for humanitarian affairs, and Ali Kushayb, a leader of the government-backed Janjaweed militia, committed 51 counts of crimes against civilians in Darfur, including rape, torture and inhumane acts.

The evidence focuses on events in four villages - Bindisi, Mukjar, Arwala and Kodoom in west Darfur - between August 2003 and March 2004.

Arbour said the ICC's evidence centres on "specific incidents, when the crime base in Darfur is immense".

Now ICC prosecutors are waiting for pre-trial judges to decide whether there is enough evidence against the men to issue arrest warrants or court summonses.

The UN Security Council first referred the situation in Darfur to prosecutors at the Hague-based ICC in 2005, because it was agreed that Sudan was “unwilling and unable” to prosecute cases in its national legal system.

Khartoum has since undertaken a series of measures, such as establishing new courts and dismissing evidence gathered by ICC investigators, in an effort to prove its own willingness and ability to conduct trials and to discredit international justice.

Because the Sudanese government in Khartoum was uncooperative, ICC prosecutors could not secure access into Darfur during their 20-month investigation. They were instead forced to conduct witness interviews and gather evidence from 17 other countries.

Sudan's belligerence is not solely targeted at the ICC. Recent reports from the ground tells of humanitarian aid workers facing increasing visa and access restrictions from Sudanese officials, with some workers being sexually assaulted and beaten.

Deirdre Clancy, co-director of the International Refugee Rights Initiative, IRRI,, told IWPR that one of the men wanted by the ICC prosecutors – Harun – is a "bete noire for humanitarian aid and humanitarian access in Darfur". Despite having ministerial responsibility for humanitarian operations, Harun has obstructed aid workers and has even suggested they are only there for their own salaries, according to Clancy.

Members of a five-strong mission by the UN Human Rights Council were recently denied visas by Sudanese authorities to visit Darfur to carry out an assessment, and were forced to work from neighbouring Chad, which is now home to millions of Darfuris in refugee camps.

The mission - headed by Nobel laureate Jody Williams and including the UN Special Rapporteur on the human rights situation in Sudan, Sima Samar - explained in a report just made public that in late January, UN Secretary-General Ban Ki-moon received a personal assurance from Sudanese president Omar Hasan Ahmad al-Bashir that his country would cooperate fully with the mission.

Nevertheless, despite more than a dozen attempts to obtain visas over a 20-day period from January 26 through February 14, made in Geneva, Addis Ababa and Khartoum, the team were refused entry and were forced to head for eastern Chad.

In their 35-page findings, the mission concluded that the government of Sudan has "manifestly failed to protect the population of Darfur from large-scale international crimes, and has itself orchestrated and participated in these crimes".

This being the case, the mission said the "solemn obligation of the international community to exercise its responsibility to protect has become evident and urgent".

Arbour warned Khartoum that the UN Security Council has coercive means at its disposal, including the possibility of imposing no-fly zones or even sending UN peacekeepers into the region without clearance from Khartoum.

"But first and foremost we need clarity what is going on in Darfur," Arbour told IWPR. She said this had been made increasingly difficult by Khartoum's strategy of refusing visas to UN and international aid workers alike.

Arbour warned the President al-Bashir’s government that her Office for Human Rights has "documented the Sudanese government's response to crimes in Darfur and has noted a small increase in paper activity, but nothing more".

Back in 2004, the US government sent a team to collect evidence from 1,200 Darfuri refugees in neighbouring Chad, prompting the then Secretary of State Colin Powell to label the attacks by Sudan’s government and its militias as genocide.

The US then proposed a resolution to the UN Security Council, which sent a Commission of Enquiry to investigate the crimes in Darfur in late 2004, reporting back in January 2005 that crimes amounting to genocide were taking place.

Arbour is particularly concerned about widespread reports of crimes of sexual violence in the region and the Sudanese government's refusal to acknowledge this.

"My office is currently investigating sexual violence in Darfur, and the level of denial is extraordinary," said Arbour, referring also to the Commission of Enquiry which reported evidence of widespread gender-based violence and concluded "that sexual violence amounted to crimes against humanity".

She added that she sees "very little sign of anything improving", but told IWPR that she is pleased "specific crimes of sexual violence have been included in the evidence" currently before the ICC’s pre-trial judges.

Before becoming UN High Commissioner, Arbour was the first female chief prosecutor for the international criminal tribunals for the former Yugoslavia and Rwanda, where she insisted that if there was evidence of sexual crimes, these counts must be included in indictments.

She told the audience at the “Women Groundbreakers in the First International Courts” in The Hague that in the early days of the Rwanda tribunal, she had not been surprised to find that sexual violence was not a focus of prosecutions.

In their new report, the Human Rights Council said that sexual violence and rape, including gang rape, are widespread across Darfur, and despite the well-known patterns of rape of women around camps for displaced persons, the authorities have done little to reduce the threat or investigate cases when they are reported.

Monitoring of the Sudanese criminal justice system over the last two years has shown that "very few cases of rape are investigated or prosecuted relative to the number of incidents that occur", the report said.

Access to justice and rape prosecutions are further complicated both by cultural norms and institutional factors such as criminal law provisions that combine rape and adultery in the same article, members of the mission pointed out.

In the remarks she made on International Women's Day, Arbour told her audience that "even in advanced countries, rape is grossly under-reported and under-prosecuted, and rape and sexual violence continue to be the most common crimes committed and the most under-prosecuted".

The question for international war crimes tribunals is what can be done about this, said Arbour, explaining that "we have tried to strategise about how to investigate whilst being sensitive to the shame and social pressures felt by rape victims".

These challenges are exacerbated by the fact that investigators have to contact women through interpreters, which Arbour noted "which makes it difficult to build trust" and necessitates the creation of a dictionary of "clinical words" to describe traumatic sexual violence so that "prosecutors do not bring euphemisms into court".

As a former chief prosecutor, Arbour identified another challenge - persuading prosecutors to document rape and sexual violence when they are being sent out to investigate mass killings on an unimaginable scale. She insisted that they must remain aware that "rape is as significant even when the scale of killings is so high".

Katy Glassborow is an IWPR reporter in The Hague.