Patterns of rape across Darfur in 2014 and 2015 show that various Sudanese units have deliberately committed rape and other sexual violence against large numbers of women in many attacks at various locations and times. No one is known to have been held accountable.

In its World Report 2016 Human Rights Watch refers to many incidents of rape, mostly in the Jebel Marra region and including the case of Tabit in North Darfur. Almost one year after Human Rights Watch released its report on “Mass Rape in Darfur” (read the report here and a blogpost here) the international community has lost interest in this case. During the Security Council’s last briefing on Darfur, the case was not mentioned (more here). Human Rights Watch attributes this lack of interest in part on the impossibility to investigate the incident. Especially UNAMID had been denied access by the central government, thus making an impartial official report impossible.

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.

The report comes after a diplomatic brawl over an attempt to arrest Omar al-Bashir during an African Union summit in South Africa (more in analysis no. 15).

The failed attempt to arrest Omar al-Bashir

In June 2015 the AU held a summit in South Africa. Omar al-Bashir, the president of Sudan, was representing his state at the summit. Despite two arrest warrants by the ICC on accounts of war crimes, crimes against humanity and genocide, al-Bashir enjoys the support of many African states, including the AU which has repeatedly criticized the ICC’s policy with regard to Africa. He travels freely throughout the continent. In light of that history, it is not surprising that the president visited the AU summit.

Still, South Africa is a state party to the ICC-statute. As such, there is no doubt that South Africa is under an obligation to arrest Omar al-Bashir. This has not only been hold by several non-governmental organizations, but by the ICC as well: The ICC had consultations with South African Officials in which the obligation of South Africa to arrest Omar al-Bashir was discussed. (Registry Report on the consultations undertaken under Article 97 of the Rome Statute by the Republic of South Africa and the departure of Omar Al Bashir from South Africa on 15 June 2015, ICC-02/05-01/09-243).

In addition, a domestic court found clear words for the South African government. After the North Gauteng High Court in Pretoria found the government of South Africa under a domestic obligation to arrest Omar al-Bashir, Sudan’s president managed to board a plane and leave the country for Sudan. In the end, it is evident that the South African government’s failure to act constitutes a violation of the Rome Statute (cf. here).

No immunity for Omar al-Bashir

Also, Omar al-Bashir has as a sitting head of state no immunity from criminal prosecution. Customary international law may provide for such a immunity. However, for state parties to the Rome Statute, art. 27 removes this protection. Sudan, a non-member state, is not bound by art. 27 Rome Statute and thus al-Bashir is not stripped of his immunity by this provision. However, being a member state of the UN, Sudan must adhere to chapter VII-resolutions of the UN Security Council. The UN Security Council removed his immunity by Res. 1593 (2005), which referred to the Rome Statute (cf. here)

Troubling is the stance of several members of the Security Council, including permanent members of the Council as well as elected members and state parties to the ICC-statute, who maintain that al-Bashir is immune from the ICC’s prosecution. In this sense, their view is simply incorrect and Omar al-Bashir does not enjoy immunity from the ICC’s jurisdiction.

It comes to no surprise that the Sudanese government failed to arrest Omar al-Bashir and Abdel Raheem Muhammad Hussein, the Sudanese minister of defense. With regard to al-Bashir, the Court already issued a decision, holding that the non-compliance violates international obligations of Sudan. With regard to Hussein, the decision is pending.

In this sense, the report does not report any news.

Banda-Trial postponed indefinitely

The Prosecutor is also not able to report any news in the Banda-case. He is still on the run and a date for the trial has not been set (cf. here).

Continued hibernation in light of ongoing violence

In her last report the Prosecutor announced a halt to all investigations in Darfur. In the present report, she details her strategy a little more: Resources of the OTP are allocated to prioritized cases that are more advanced. With regard to Darfur, not a single case is likely to be tried in the near future. However, the OTP continues to monitor the situation in Darfur, focusing on recent crimes and even interviewing witnesses to safe their testimony.

This is in part due to the ongoing violence in Darfur, as the Prosecutor reports. Until today, the Rapid Support Forces (RSF), a paramilitary unit, are committing crimes in Darfur. The Prosecutor names three individuals allegedly somehow responsible. Among them are two RSF-leaders, Major General Abdual-Aziz and commander Mohamed Hamdan Dagolo, known as “Hemeti”, and the National Intelligence Security Service’s (NISS) General Ali al-Nasih al-Galla. Hemeti has been in the focus of the OTP for quite some time and was mentioned in the Prosecutor’s 19^th report a year ago.

Of course, during the debate after the Prosecutor gave her report to the Security Council, the Sudanese representative denounced these claims. He even went so far as to re-address the legitimacy and legality of SC Res. 1593 (2005).

(No) Mass rape in Tabit?

Suspiciously, any reference to the alleged mass rape in Tabit is missing from the OTP’s report (cf. here and here). The sole representative regularly referring to the incident is the UK representative. When the Security Council extended the mandate of UNAMID with Res. 2228 (2015) on the same day as the Prosecutor delivered her report, the UK representative reiterated her countries worries about the incident (and she was supported by the US representative). The Sudanese representative, quite the reverse, denounced these allegations and labeled the accusations an “information war” by “certain players to scale up pressure on the Sudan.”

Persistently ignoring the ICC

Not surprising, but disturbing is the persistent neglect of the Darfur-situation by the Security Council. Six months after the Prosecutor’s surrender to the unwillingness of the Council, its members seem happy with the situation. Even tough some members call upon the Council to act, no one undertakes credible steps. For the nearly 1.200 victims of the crime in Darfur since the beginning of 2015, the Security Council is still a disappointment.

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.