Sudan Rep. To the UN Responds to the ICC Prosecutor

New York – Sudanhorizon

Thank you, Mr. President, and I thank the Prosecutor, for his briefing and report No. 40 and the progress he mentioned in terms of cooperation and positive communication with the Government of Sudan through requests for assistance related to the investigation of old and most recent crimes in Darfur.

(1) Sudan and the International Criminal Court:

-The situation in Darfur was referred by the Security Council to the International Criminal Court under Resolution No. 1593 of 2005 based on its powers contained in Article 13/b of the Rome Statute.

-Since the referral decision was issued in 2004 until May 2021, there has been no cooperation with the court, as communication began that resulted in the signing of a memorandum of understanding between the Government of the Republic of Sudan and the Office of the Prosecutor in August 2021, in addition to taking advanced steps to join the Rome Statute which established the International Criminal Court, but Sudan has not yet ratified the Rome Statute of 2002. Legislative amendments were made under which the four crimes subject to the criminal jurisdiction of the International Criminal Court were included in national laws, including the Criminal Code of 1991, the Armed Forces Act of 2007, and the Criminal Procedure Code of 1992.

– Within the framework of cooperation, the Office of the Prosecutor visited the Republic of Sudan several times and held meetings with officials at the highest levels and paid visits to refugee camps in Darfur states. In August 2022, the Prosecutor presented his briefing to the Security Council from Khartoum, which is a precedent that occurred for the first time in the history of the court, given its significance and political will to deal with the court within the framework of legal integration, which gives the national judiciary priority over the option of the court as a last resort.

– As part of the efforts of the Government of the Republic of Sudan to control cooperation, His Excellency the President of the Transitional Sovereign Council issued Decision No. 191 of 2023, stipulating the formation of a committee to coordinate the liaison between the Government of the Republic of Sudan and the Office of the Prosecutor, headed by a judge from the Supreme Court and the membership of the relevant national authorities.

– The procedures for granting visas to the team of the Office of the Prosecutor were facilitated, and the Minister of Foreign Affairs directed our embassy in The Hague to grant them entry visas whenever they submit a request to this effect.

– As a result of the continuous and ongoing communication between the committee and the Office of the Prosecutor through various media, the committee prepared responses to most of the Office’s pending requests since 2020 as much as possible during the war, and the Office of the Prosecutor of the International Criminal Court commended this in writing and included it in its previous report No. 39 and confirmed in the executive summary of the report before you and in the body of the report.

(2) Human rights violations and war crimes:

– Regarding the atrocities and gross violations of human rights, international humanitarian law and war crimes, the state resorted to establishing national mechanisms as follows during the war:

(1) The Committee to Investigate Rapid Support Forces Violations, headed by the Attorney General and with the membership of relevant authorities.

(2) The Committee to Monitor Violations at the National Commission for Human Rights.

(3) Developing the (Balagh) application for the armed forces and police, which includes aspects of documented human rights violations such as the occupation of homes and arbitrary checkpoints that obstruct the passage of citizens and criminal matters.

Mr. President,

– Conflict-related sexual violence is a war crime whose perpetrators should never escape punishment. The reality is that 95% of these crimes were committed by the Rapid Support Forces.

– The number of children affected by these violations through killing, injury, forced displacement, missing persons and forcible recruitment is close to 26,470. The number of citizens forcibly displaced as a result of the actions and violations of the militias amounted to 14,197,735 million. The number of women and girls affected by these atrocities and violations amounted to 216,000. The number of civilians killed as a result of crimes amounting to genocide and war crimes in El Geneina, West Darfur, amounted to more than 5,000. The number of civilians injured in El Geneina exceeded 8,000. The number of forcibly kidnapped as a result of militia violations amounted to 5,000 cases. This is in addition to those detained in special detention sites. The number of looted cars that were registered in the Interpol database of stolen cars amounted to 27,378. The number of inmates who escaped from prisons, including those convicted of terrorism crimes, amounted to 19,790. The number of central and state prisons that were subjected to attacks amounted to 31 prisons. The number of looted banks is under investigation, but the initial statistics exceed 26 banks, and the number of countries from which mercenaries and displaced persons participated alongside the militia reached 13 countries.

– The total number of lawsuits filed against the leaders and members of the rebel militia and their collaborators reached (38,427) criminal lawsuits in various states of Sudan. The total number of accused who were arrested in all reports reached (1329) accused. (1,218) criminal lawsuits were referred to ordinary courts. The total number of sessions in courts in various states reached (2598) sessions. (423) criminal lawsuits were adjudicated, and (795) criminal lawsuits are still pending before the courts.

– Publication announcements were issued for (375) fugitive defendants according to the criminal cases filed against them based on evidence indicating their commission, participation and incitement to crimes committed by the rebel militia. The General Secretariat of Interpol and the Department of Data and Criminal Prosecution were addressed to issue red notices and arrest warrants for (16) fugitive defendants to pursue them internationally in preparation for bringing them to trial before national courts.

– There are many female and child prisoners, and many women are missing and now we have more than (500) missing women.

Legal nature of cooperation:

– A memorandum of understanding was signed between the Government of Sudan and the Office of the Prosecutor, taking into account Article 86 (a) of the Rome Statute relating to non-party states to the Statute with the aim of providing assistance stipulated in Chapter IX regarding cooperation with the International Criminal Court and the Prosecutor and to provide the necessary assistance regarding the investigations conducted by the Court in the territory of Sudan and to provide and transfer suspects against whom arrest warrants have been issued, they are five of them, one of whom is currently being tried in The Hague.

-The aforementioned memorandum of cooperation establishes mechanisms for activating cooperation between the two parties, but the process of ensuring the existence of provisions in national laws regarding this cooperation falls within frameworks related to legal reform in the context of transitional justice, and this has not been completed yet. With Sudan’s agreeing to cooperate with the Court, I would like to point out that the extradition of wanted persons is done within a permanent legal context and not a temporary one, as required by the current circumstances of the political transition process and the challenges it faces.

Legal basis for cooperation:

-Comprehensive and full cooperation also requires completing the ratification process of the Rome Statute in accordance with the provisions of Sudanese law, as the aforementioned cooperation requests require a statement of the legal basis on which the request is based, its essential facts, and detailed information on the locations and identities of persons and materials.

-The Government of Sudan treats the International Criminal Court like any international governmental organization or diplomatic mission, and there are no restrictions on the communications or movements conducted by the Court or the activities it carries out.

– The implementation of requests for cooperation in accordance with Article (99) -A- of the Statute shall be carried out by agreement in a timely manner in accordance with the procedures specified by national law unless prohibited by this law.

– I must mention that according to Article 93 (4) of the Statute, the Government of Sudan may reject a request for cooperation or assistance in whole or in part when the request relates to the submission of documents or the disclosure of any evidence related to national security, and the Government of Sudan may lift its confidentiality obligations to facilitate their submission, and this also takes time.

– The Sudanese judiciary will also play a role in the hybrid investigation that will be conducted in cooperation with the International Criminal Court in accordance with the principle of legal complementarity.

– There are procedures for reconciliation, satisfaction, psychological and medical care, and the provision of legal services. Criminal investigation is a complex matter that requires an integrated judicial and legal framework to verify the facts and disclose them publicly, in addition to preserving the rights of the accused, and this requires a stable legal system, the conditions of which are not available within the transitional conditions during the current war. The legal reform process in the country has begun, but it has not been completed.

– Fair criminal treatment also requires a justice policy and a complete criminal justice system that is not in conflict with Sudan’s obligations arising from its international commitments and human rights agreements. This requires deliberation and expanding the base of participation within the cultural pluralism that Sudan represents. This is an action that goes beyond the frameworks of official agencies so that it makes grassroots participation, stakeholders, women and youth among its priorities so that criminal justice does not become a partial patchwork process as long as the long-term goal sought is to stop impunity. This is an agenda that complements the vision of national security, which should seek to expand the base of participation. This is not optimally achieved during war.

– The constitutional document stipulates in paragraph (5) the need for reforming state agencies and prosecuting the former regime for all crimes committed. This requires restructuring institutions, supporting criminal work methods and completing investigations required by the status of crimes of an international nature, which may require the exchange of legal expertise to ensure that there is no conflict with internationally recognized investigation methods. This paragraph gives priority to the national judiciary. The trial of wanted persons has already begun, but has been halted due to the current war. The Sudanese Criminal Procedure Code and Criminal Law were amended to include war crimes, crimes against humanity and genocide.

The optimal formula for cooperation with the Prosecutor:

– Within the framework of cooperation between the Prosecutor and the Liaison Coordination Committee with the International Criminal Court, a high-level legal delegation, including the Attorney General of the Republic of Sudan, who is the Chairman of the National Committee for the Investigation of Crimes and Violations of National and International Law, and the Chairman of the Liaison Coordination Committee with the International Criminal Court, visited the International Criminal Court at the invitation of the Office of the Prosecutor during the period from 9 to 13 December 2024. The path of cooperation between the two sides and the efforts of the focal points in responding to the requests of the Office of the Prosecutor and the information required regarding previous cases were discussed. It was emphasized that there is political will to cooperate with the Prosecutor regarding the investigations conducted by the National Committee for the Investigation of Crimes and Violations of National Law and International Humanitarian Law since the outbreak of the war of aggression against Sudan in April 2023.

Prior to that, the Coordination Committee had been in constant contact with the Office of the Prosecutor on an ongoing basis in order to complete coordination efforts. Arrangements were also made and the necessary measures were taken to receive delegations from the Office of the Prosecutor and facilitate their meetings with senior officials in the state.

The requests related to the atrocities and crimes of April 2023 in Darfur states were responded to and logistical assistance was provided in arranging a defense witness in the case of Ali Muhammad Ali Abd al-Rahman Kushayb in Sudan, where the delegation attended the closing arguments in the aforementioned case.

The Coordination Committee is conducting a high-level visit to the states of River Nile, Kassala, Gadarif and Shamalia and visiting some countries with the aim of questioning a number of witnesses within the framework of implementing the requests submitted by the Office of the Prosecutor.

An official invitation was extended to the Office of the Prosecutor to visit Sudan to activate communication between the two parties during the month of February. Although the court team was able to visit the Chadian border, the National Committee was unable to do so due to the Chadian authorities’ refusal.

It was decided with the Prosecutor to agree on a positive and constructive approach with the need to bear joint responsibility in achieving justice for the victims. Combating impunity, achieving legal accountability and investigating the situation in Darfur is done through the African or national solutions track or the last resort option through the International Criminal Court.

President Abdel Fattah al-Burhan made clear his confirmation and openness in order to reach an understanding regarding the joint judicial action and achieve progress therein. The Sudanese authorities facilitated the Prosecutor’s access to witnesses, confirming their readiness to discuss the optimal judicial model for the cases. The Attorney General also stressed that the Public Prosecution is an independent body from the executive branch.

The crime of aggression that Sudan is exposed to was also reviewed with the repeated conspiracy of some countries in the region and the use of mercenaries from Latin America, and that Sudan is awaiting the court to begin investigating the atrocities in Darfur, which are still under the jurisdiction of the International Criminal Court.

In summary:

– Sudan responded to the 48 questions and requests submitted by the Public Prosecutor to the best of its ability during the period of the war of aggression and the restrictions it imposes on movement and security, in addition to the interruptions and targeting of civilian facilities and government institutions, the burning of files and the scarcity of financial resources, and that the head of the Liaison Coordination Committee with the Criminal Court addressed during his visit to The Hague the necessity of initiating the court’s jurisdiction regarding the crime of aggression, the elements of which were complete in the war in Sudan, supported regionally by some countries that contributed to criminal partnership and criminal conspiracy in war crimes, crimes against humanity, ethnic cleansing and genocide that occurred in Darfur by targeting specific ethnicities with the aim of eliminating them for motives including ethnic arrogance.

The jurisdiction of the International Criminal Court is broader than the national jurisdiction, and therefore Sudan demanded that an investigation be initiated into the ongoing crime of aggression with its internal and external parties.

– Sudan has raised the level of cooperation to an optimal ceiling that has not been available before, within the framework of legal or judicial integration, with respect for Sudan’s sovereignty and respect for the Sudanese justice system, in order to prevent impunity and restore grievances to victims in Darfur.

The National Committee for the Investigation of Crimes and Violations of National and International Humanitarian Law has also begun its investigations and the prosecution of perpetrators through Interpol. The atrocities and violations of the Rapid Support Militia, which they document with their own hands, included 966 cases of rape and genocide against the Masalit ethnic group, about which their Sultan, Mr. Saad Bahar al-Din, addressed your esteemed council, giving his decisive testimony about the atrocities he witnessed with his own eyes, where people were buried alive, and their use of internationally prohibited weapons, displacing civilians, occupying their homes, and destroying health and electrical facilities and dams, as they issued a warning last week to the people of Darfur and the armed forces to evacuate within 3 days.

Under national law, the militia has been classified as a terrorist group, and those wishing to provide legal assistance to victims can benefit from the electronic platform launched by the committee to submit complaints and report crimes and violations. Sudan looks forward to classifying the Rapid Support Militia as a terrorist group.

– Sudan is ready to cooperate with the Public Prosecutor regarding the prosecution of foreign suspects wanted by international criminal justice if it becomes clear that they are present on its territory, and the Liaison Coordination Committee with the International Criminal Court, headed by Supreme Court Justice Abu Bakr Omar Ahmed Al-Bashir, will coordinate and facilitate the visit of the delegation of the Office of the Prosecutor to Sudan next month.

The observations of the Liaison Coordination Committee with the International Criminal Court on the current report include the following:

1) The Prosecutor General of the Court praised the level of cooperation between the Committee and the Office of the Prosecutor when submitting his report No. (39) before the Council.

2) The report did not address the effective cooperation shown by the Committee with the Office of the Prosecutor regarding the preparation for the interrogation of a defense witness in a case of Kushayb.

3) The report neglected to activate the memorandum of cooperation regarding the request submitted by the Office of the Public Prosecutor to implement it against the accused who is in the Central African Republic according to their request, and although the committee made efforts in this regard, the accused was not reached and the request was responded to, with the Office of the Public Prosecutor thanking the committee for what it did within the framework of good cooperation.

4) The report indicated that the Sudanese government responded to (8) requests partially – and here we must point out some facts regarding those requests.

A) The request related to the ownership of information about the aircraft that landed at Al-Fashir Airport in 2003, and upon referring to the competent authorities, we did not obtain the records, documents and papers as they were damaged, burned and completely destroyed due to the war, and therefore we expected that this response would be considered sufficient to stop the request due to the impossibility of implementing it as a result of what is known as the effect of “force majeure” in the law.

b) The requested information regarding conversations and telephone calls between leaders and others since the outbreak of the war on April 15, 2023, and monitoring them and allowing technical teams to analyze and access them. The response was that it was impossible to implement the request due to the destruction of the communications tower and all the devices inside it, as well as the requested data.

c) There is a request related to the minutes of the meetings of the Security Committee in El Fashir during the period from 2003 to 2005. Our response was that these documents are considered non-existent for the same reasons above. Accordingly, it is considered impossible to respond to this request.

d) There are requests related to the events in the Korma and Bindisi areas and the minutes of the meetings of the local security committees in the Darfur region. Our response was also that it was impossible to find the data or records, especially since a large part of the Darfur states is under the control of the Rapid Support Militia, which deliberately destroyed all government, security and military documents and files in those areas, while targeting judicial headquarters and courts.

e) The Committee overcame the obstacle of Resolution 1593 and provided all the relevant information available to it and continues to provide the Office of the Prosecutor with everything available to it and went further, as the Office of the Prosecutor was linked with the National Investigation Committee into the events of 4/15/2023, following which a high-level government delegation consisting of the Attorney General of the Republic of Sudan, the Chairman of the Liaison Committee with the International Criminal Court, and two representatives from the Human Rights Department of the Ministries of Justice and Foreign Affairs visited the headquarters of the International Criminal Court in December 2024 to discuss cooperation files and develop their mechanisms.

f) In our opinion, fair standards must be set that clarify the meaning of cooperation and response, taking into account the security conditions left by the war and the deliberate destruction of documents, files, data and facilities by the Rapid Support Militias, which seek to obliterate all evidence and files that could contribute to their conviction before international and local courts.