Today, Rwanda has reiterated its invitation to the Sudanese President, who is supposed to attend an AU summit in Kigali starting tomorrow. Even though Rwanda is not a state party to the ICC and consequently under no obligation to arrest the president, it shows the respect that states have for the ICC, which at least in most parts of Africa is not-existent.

The UN Security Council will probably ignore the communications referring to Uganda and Djibouti and it will most likely ignore al-Bashir’s attendance of the AU-summit.

As always, the Prosecutor laments on the Council’s inaction and even ignorance of the ICC’s concerns. Not only is the Council still failing to enforce outstanding arrest warrants, the Council has yet to respond to the ICC’s communications. These refer to failures by state parties to fulfil their obligations under international law. Most prominently, the Prosecutor reports on the aftermath of the unfortunate incident in South Africa last year (here and here). In March 2016, the Supreme Court of Appeal had issued a judgement, in essence upholding a prior condemnation of the governments refusal to fulfill its legal obligations (a review of the Supreme Court of Appeal’s judgement will follow on these pages). The dreadful event in South Africa has not hindered Omar al-Bashir from traveling freely. This includes visits to Djibouti and Uganda – both state parties to the ICC-Statute – as well as non-state parties.

With regard to the Banda-trial, which had been postponed indefinitely (here and here), the Prosecutor can only repeat that there is no new date for a trial. Banda is still on the loose and not likely to appear in The Hague. The OTP monitors ongoing events in Darfur, even though new investigations are not being opened (here, here and here). The Prosecutor cites several incidents in which casualties have been reported, allegedly also by the Sudanese Rapid Support Forces. Whether or not any proceedings will be opened seems to depend on the actions by the Security Council. And because the Council fails to act, it is likely that no new investigations will be opened in the Darfur-situation.

After her briefing, the Council’s members answered. To no surprise, nothing new was stated. Some states reiterated their opposition to the Court while other members reiterated their support for the Court and joined the Prosecutor in her calls for support. As stated, however, no member state took action. And as usual, the Sudanese representative reacted to the report with the old responses of imperialism, injustice, illegality and the fact that the Darfur-situation demands a peaceful solution to be found within a political process. It is noticeable that the Prosecutor and the Sudanese representative had a bigger clash than in past briefings, even if the hostility has not reached the heights of June 2012, when the predecessor of the current Prosecutor and the Sudanese representative had a major and very personal clash (here).

Again, a report of the OTP illustrates the shortcomings of the Darfur-situation and highlights the need to act. And yet again, the Council fails to act and it will continue to fail. In December 2016, when the 24^th report is due, the report will most likely contain the same aspects, with minor changes in detail.

The Security Council is long aware of the deteriorating situation in Darfur. When the ICC prosecutor reported on the deteriorating situation in Darfur last December (here), she illustrated the situation by detailing incidents involving possible crimes. In Januar 2016, UNAMID reported back to the Council, also outlining a worsening situation (here). In addition, calls to postpone a scheduled referendum in April are publicized on an almost daily basis (here also).

Consequently, the Security Council determined that the “situation in Sudan constitutes a threat to international peace and security”.

With res. 2265 (2016), the Council extended the mandate of the panel of experts created by res. 1591 (2005) until March 2017. The panel is tasked to report to the Council and update it on recent developments. Fulfilling this task the experts regularly report a lack of cooperation by Sudan and other states – something that experts, who are not members of the panel, agree with.

As in the past, the Security Council did not address this situation in a meaningful way. No further measure was taken by the Council except the extension of the mandate. With regard to the arms embargo, travel bans and targeted sanctions, the Security Council expresses its concern for the lack of cooperation by Sudan and other states. It reminds the states of their obligations to fulfill previous resolutions.

In short, res. 2265 (2016) brings nothing new except an extension of the mandate of the panel of experts.

The Under-Secretary General presents the Secretary General’s last report on UNAMID (S/2015/1027). In the time of reporting, clashes had not been numerous. This is supposed to be due to the rain season. Nevertheless, the situation is far from resolved and clashes still happen. Most importantly, several rebel fractions engage in attacks against Sudanese armed forces while the government had declared an unilateral ceasefire. Noteworthy is the fact that the Justice and Equality Movement (JEM) did not engage in attacks. The reasons for this remain uncertain.

With regard to the peace process, no substantial progress has been made. Too many opposition groups refrain from the dialogue or are boycotting it for political reasons.

The Under-Secretary General reports also on the humanitarian situation. He highlights that several thousand persons have been displaced during the last weeks. This adds up to an already existing challenge: In April 2016 a referendum is scheduled to take place. Voters will be asked on the administrative status of Darfur. The challenge is, however, to register voters and to let them actually vote. With a very large number of internally displaced persons, this task becomes rather impossible.

The operation of UNAMID itself is not running smoothly. For one, UNAMID convoys and personnel are attacked regularly. Moreover, access to specific areas is still limited by the Sudanese Government. This does not only hold true for actual access on the ground but also into Sudan itself: Visa requests by the UN for UN staff are denied on a regular basis. As consequence, UNAMID suffers from a “high vacancy rate in key substance sections”, as the Under-Secretary General reports.

To summarize, UNAMID is still confronted with old obstacles. A solution is not in sight.

Update 4 February 2016: According to a recent press release, Sudan’s national dialogue conference calls to postpone the referendum (see here).

Update 9 February 2016: Yesterday began voter registration for the referendum. However, Sudan’s IDP association calls to boycott the referendum (here).

However, with the 20^th report of the Prosecutor being delivered in December 2014 and marking the start into 2015, the prospect of a good year for the Darfur-situation was already dark. In said report, the Prosecutor announced a halt to further investigations into Darfur (here). She cited the missing support by the Security Council as a major drawback in the ICC’s efforts with regard to Darfur. In 2015, the Security Council was not impressed by her outcry and continued to ignore the calls for help. This is evident from the new 22^nd report of the OTP to the Security Council. In detail, the Prosecutor highlighted the following points.

Omar a-Bashir’s travels

Unsurprisingly, Sudan’s head of state Omar al-Bashir continues to travel freely. 2015 was marked by a failed attempt to arrest him during an African Union summit in South Africa (here and here). Still, the second half of 2015 had al-Bashir travel to Mauretania, China, South Sudan, Algeria, Ethiopia, Saudi Arabia, Pakistan, India and the United Arab Emirates. Not one of these nine states is a state party to the ICC; thus, they are not obliged to arrest al-Bashir. Nevertheless, the referral by the Security Council asked non-member-states to cooperate with the ICC. With regard to the defiance by South Africa in the summer of 2015, this member state is currently asked to detail the domestic judicial proceedings surrounding the AU summit. Whether or not something helpful will come out of that remains to be seen.

Lack of cooperation

As usual, two key actors refuse to cooperate with the ICC, rendering its efforts useless and hampering the enforcement of international criminal justice.

First, Sudan is still not cooperating with the Court. Albeit obliged to do so by Security Council res. 1593 (2005), Sudan is not willing to fulfill its obligations under international law. This is nothing new and it does not need to be stressed further.

As an interesting side note, the Sudanese representative has cited the November 2015 Paris Climate Change Conference and its impact on the conflict in Darfur. With climate change being one cause for the deterioration of the situation in Darfur, he highlights the need for a comprehensive approach. While the representative has a point, other factors are more essential. While climate change has contributed to clashes between different groups of people in Darfur, the real driving forces behind the conflict are not natural forces, but politics and policies. This, of course, is withhold by the Sudanese representative.

Second, the Security Council is still not willing to back up its referral. In spite of numerous of its own resolutions and several and regular cries for help by the ICC, the Court’s submissions to the Council continue to be ignored. Communications received by the Council are not answered. Within the debate following the report by the Prosecutor, states were reluctant to promise more support. Even France, a long-term supporter of the ICC, prioritizes other aspects of the conflict before addressing the lack of support. It seems as if the Council’s member states have lost their faith in international criminal justice (which is due to its own failure to act).

Further activities

As she promised earlier (here) the Prosecutor monitors ongoing events in Darfur. Within the last six months there have been aerial attacks in Darfur, gender-based crimes and crimes against peace-keepers. The Prosecutor specifies in her report that nobody really knows how many of these crimes are due to the conflict between the government and rebel forces or to intertribal clashes. Unfortunately, these events will not be investigated any further until more support is granted by the international community.

The Prosecutor adds that eight victims of alleged crimes have withdrawn from the al-Bashir case, citing a confidential settlement. She is eager to point out that her office is not abandoning the victims and continues to call for arrest and surrender of those allegedly responsible for the crimes.

Remarkably, the report is silent on the incident at Tabit. Whatever happened there will probably never be known (more here). Finally, the case against Abdallah Banda is not moving forward. A new starting date has not been set and Banda is still on the lose.

Summary

In the end, the 22^nd report does not bring anything new. The situation is still on hold due to the Sudan and the Security Council continuing to ignore the ICC. One does not need to be a prophet to foresee that the 23^rd report due in June 2016 will include the same areas of concern, the same lack of cooperation by Sudan and the same lack of support by the Security Council.

Last week Human Rights Watch released “Mass Rape in Darfur“, a report which supports the accusations made by the Prosecutor. Nevertheless, the report does not solve anything. The report details a three-day-attack on Tabit, a small town close to El Fasher in North Darfur once held by rebel forces but as of today controlled by the Sudanese armed forces. According to Human Rights Watch, members of the armed forces stationed close to the city launched an attack on 30 October 2014 that continued until 1 November 2014. During the raid, soldiers gathered the men at the outskirts of the city, where the men were held, beaten and abused. This enabled the troops to rape the women left in the town. Overall, Human Rights Watch fears dozens of victims of war crimes and crimes against humanity as perpetrated by members of the Sudanese armed forces.

One day after the release of the report, the Security Council adopted Resolution 2200 (2015), extending the mandate of the Darfur Panel of Experts. During the debate, the US-representative has addressed the incident at Tabit. However, the Sudanese representative has denied that the incident took place and made recourse to a report by UNAMID which did not find any evidence. He also referred to a letter dated 3 December 2014 from the Permanent Representative of the Sudan to the United Nations addressed to the President of the Security Council. Here, the Special Prosecutor for Crimes in Darfur, a Sudanese official, gives an account of his visit to Tabit. He did not find any evidence pointing to crimes and thus refused to open criminal proceedings. This is in line with UNAMID-reporting. The mission was tasked with investigating the alleged raid and reported back that it did not take place.

While Sudan (and Russia) claim nothing has happened in Tabit, the USA, Human Rights Watch and the ICC are convinced that the crimes took place. They claim that UNAMID was not able to investigate independently, because Sudanese officials were present during the hearings. Likewise, the Special Prosecutor was working together with other Sudanese agencies and did not convey an impartial account of what has happened (or not) in Tabit.

There are two rather easy issues and one more complicated issue at hand.

First of all, the facts need to be established. The report prepared by Human Rights Watch seems to give evidence to the fact that at least something has happened and that this was not properly investigated by the competent domestic authorities.

Second, the legal analysis seems rather easy. Human Rights Watch is correct when it asserts that war crimes and crimes against humanity have been committed.

Third, and that is the problem, the question remains who will investigate and eventually conduct a trial. Sudan has, of course, the primary responsibility to do so. In addition to being the territorial state, Sudan is by way of Resolution 1593 (2005) obliged to investigate these accusations and put alleged perpetrators to trial. However, the Sudanese authorities have put an halt to criminal investigations.

Complementary to the Sudanese jurisdiction the ICC may investigate. But because its jurisdiction is complementary, any past or future Sudanese investigation must be measured against art. 17 (2) Rome Statute. It is then up to the ICC to decide whether “the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice” (art. 17 [2] [c] Rome Statute). That issue may eventually be solved, however, the statement of the Prosecutor from December 2014 remains: She will not open any new investigation in the Darfur-situation (here and here). Thus, there will most likely not be an investigation by the ICC in the Tabit-incident. Given the divide in the Security Council with regard to Darfur in general – and the clear manifestation of the different “beliefs” with regard to Tabit in particular – the Security Council will not support any investigation with regard to Tabit.

Human Rights Watch seems to be aware of this. The recommendation to the ICC is therefore rather short: “The Office of the Prosecutor should investigate, to the extent possible, the allegations of rape and other crimes within the ICC’s mandate.” In addition, Human Rights Watch has lost confidence in the Security Council, which is asked to impose travel bans and asset freezes and to issue a resolution demanding access for UNAMID to Tabit.

An investigation in the crimes as reported by Human Rights Watch seems unlikely. Thus, no one will be held criminally responsible for the incident. The report has shed, however, light on a conflict that is ignored and it highlights the consequences of the Security Council’s inaction. What is the result for the people of Tabit? Unfortunately, there is none.