Ebenso lesenswert ist die Analyse zur UNMISS, die ebenfalls auf den Seiten des ZIF zu finden ist.

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).

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.

The 20^th report of the prosecution to the Security Council is basically limited to issues already known. In addition to the aforementioned announcement, other developments complicate the ICC’s work.

Banda-Trial postponed

The trial against Banda was supposed to begin in May, however, Trail Chamber IV postponed the commencement until 18 November 2014 (here). Still, this date was not realizable as well. When the Trail Chamber IV issued a warrant of arrest for Banda (more will follow in this blog), the Chamber simultaneously vacated the set date and postponed the begin until his arrest or voluntary appearance. This is also due to the unwillingness of Sudan to cooperate with the Court.

The Prosecutor gives one example which speaks volumes: In July 2014, the Court requested Sudan to cooperate and to facilitate Banda’s appearance before the Court. Sudan is by international law, namely by Security Council resolution 1593 (2005), bound to cooperate with the ICC. This being the case, the request to cooperate by the ICC did not impose new obligations on Sudan. Coming back to the example, Sudan returned the envelope with the written request unopened to the Court. The disrespect for the Court as well as the Security Council could not have been expressed more pretentiously. Unfortunately, while the ICC cares, the Security Council has forsaken the Court and is once again not interested in successful international criminal justice.

Omar al-Bashir’s Travels

This is clear from the Council’s reluctance to address the issue of non-cooperation by other states. More specifically, state parties to the ICC-Statute are bound to cooperate with the Court. In particular, those states are under an obligation to arrest persons wanted with an arrest warrant by the ICC. Omar al-Bashir, Sudan’s president, is one of those persons. Nevertheless, he travels freely throughout Africa and even African state parties to the ICC decline any request for help by the ICC. This is not new. It is also not new that the Security Council does not support the ICC. Moreover, the communications sent by the ICC to the Council, addressing instances of non-compliance with the Council’s own resolution, are ignored. The ICC still awaits responses to its letters.

The statements by the member’s of the Security Council after the OTP’s report are hypocritical. Some representatives concede that answers are necessary. However, nothing has been done in order to answer the requests. It seems highly unlikely that this will happen in the future.

Alleged Mass Rape in Tabita and UNAMID-reporting

“The recent allegations of rape of approximately 200 women and girls in Tabit should shock this Council into action.” With these clear words the Prosecutor addressed the Security Council and its “concerns” regarding the humanitarian situation in Darfur. The answer of the Council? Some members deny the facts and maintain that no evidence has been found to support this claim. Other members point out that no independent inquiry took place, because the Sudanese government did not grant access.

This comes in addition to alleged flawed reporting by UNAMID. The mission has been criticized for taking sides in the conflict and shielding government officials from prosecution (based on a series of three articles by Foreign Policy: 1, 2 and 3). The Prosecutor addresses the issue only briefly, referring to a report prepared for the Secretary General (here). The report found no evidence “to support the allegation that UNAMID had intentionally sought to cover up crimes against civilians and peacekeepers.” However, the report also found that in several instances UNAMID did not provide UN Headquarters with all information about the incidents. (To be fair to the Security Council, when it renewed UNAMID’s mandate until summer 2015 by resolution 2173 (2015), it welcomed the Secretary Genereal’s announcement to investigate said allegations.)

Grim Outlook on the 21^st report

It does not take a crystal ball to have a grim outlook on the next report. After all, we have seen what happens after the prosecution begs for support in New York. In June 2015 the OTP will once again lament on the lack of cooperation by Sudan and other states, the Security Council’s unwillingness to address instances of non-cooperation as well as the further postponement of trials and execution of arrest warrants. That the OTP continues to monitor alleged crimes in Darfur does not brighten the outlook and it does certainly not help the people in Darfur.

Die Angriffe auf Blauhelmsoldaten stellen u. U. Kriegsverbrechen dar, die nach Art. 8 Abs. 2 lit. e) iii IStGH-Statut bestraft werden können. Ohne Beispiel ist das nicht, müssen sich doch für einen Angriff auf Blauhelmtruppen ab Mai 2014 zwei Rebellenführer in Den Haag verantworten (hier). Es zeigt sich daran aber auch, wie wirkungslos die Maßnahmen des IStGH manchmal sein können.

Am heutigen Freitag treffen sich Präsidenten des Sudan und des Südsudan, um Lösungen für die gemeinsamen Probleme, insb. die Region Abyei und die Ölexporte, zu sprechen. Ob die Gespräche erfolgreich sein werden, darf angesichts der vergangenen fehlgeschlagenen Lösungsversuche bezweifelt werden.

Das ist vom Mandat gedeckt. UNAMID hat die Aufgabe, die Zivilbevölkerung vor Gewalt zu beschützen. Das kann jedoch nicht nur präventiv erfolgen. Wird die Bevölkerung angegriffen, so muss zur späteren Sanktionierung aus spezialpräventiven und zur Vorbeugung von Nachahmungstaten aus generalpräventiven Gründen untersucht werden, was wirklich vorgefallen ist.

Die UN-Berichte sind hier und hier zu finden.

Zusätzlich wird berichtet, dass in Darfur Gelbfieber ausgebrochen sei. Der Krankheit fielen bislang 67 Menschen zum Opfer, von annähernd 200 verifizierten Erkrankungen (UN-Bericht).

Quelle: UNAMID/Albert González Farran

Der Angriff erfolgte nur einen Tag nachdem die Sondergesandte der Vereinten Nationen für Darfur erneut zum Frieden aufgerufen hat. Bereits Anfang Oktober sind vier UNAMID-Peacekeeper in Darfur getötet worden.

Der Untergeneralsekretär der Vereinten Nationen für Peacekeeping-Operationen, hat den Sicherheitsrat am Dienstag über die Fortschritte informiert. Er bezog sich vor allem auf den Friedensvertrag von Doha vom Juli 2011. Die Zentralregierung des Sudan hat mit dem Liberation and Justice Movement (LJM) den Wiederaufbau staatlicher Strukturen unter Teilnahme der Rebellen vereinbart. Dieser Aufbau gehe gut voran, auch dank der Hilfe der internationalen Gemeinschaft und UNAMID. Dennoch komme es vereinzelt zu Gefechten zwischen Soldaten und Rebellen. Bei einem Gefacht wurden am 10. Oktober drei Soldaten der UNAMID getötet.

Der sudanesische Vertreter bei den VN, der bei der Sitzung am Dienstag anwesend war, berichtete von den Anstrengungen seiner Regierung. So seien zwei Milliarden US-Dollar für Darfur bereitgestellt worden. Zu bedauern seien aber die weitreichenden Verschwörungen, die den Sturz der Zentralregierung in Khartum herbeiführen möchten. Er verwies insbesondere auf das Sudan People’s Liberation Movement – Northern Sector – eine Abspaltung der damaligen SPLM/A, die heute die Regierung im neuen Staat Südsudan stellt (siehe auch hier und hier und vor allem hier).

Ob sich damit die Lage langfristig beruhigt, bleibt zweifelhaft. So ist insb. die Teilnahme von nur einer Rebellenorganisation nicht ausreichend, um die Interessen aller am Konflikt beteiligten Parteien in einem umfassenden Friedensabkommen zu berücksichtigen.