Dear Ambassador,

We write in regard to the arrest warrant requested by the prosecutor of the International Criminal Court (ICC) for President Omar al-Bashir of Sudan. We understand that this request is likely to come under intense international scrutiny in the coming weeks. The stakes are extremely high for the victims of atrocities in Darfur and for global efforts to curtail impunity for the most serious crimes. We urge your government to weigh these issues in light of basic principles already expressed by the Security Council. For the reasons laid out in this letter, we believe that it is essential that the Council reject any interference with judicial proceedings.

We write in regard to the arrest warrant requested by the prosecutor of the International Criminal Court (ICC) for President Omar al-Bashir of Sudan. We understand that this request is likely to come under intense international scrutiny in the coming weeks. The stakes are extremely high for the victims of atrocities in Darfur and for global efforts to curtail impunity for the most serious crimes. We urge your government to weigh these issues in light of basic principles already expressed by the Security Council. For the reasons laid out in this letter, we believe that it is essential that the Council reject any interference with judicial proceedings.

As you know, immediately following the request by the ICC prosecutor on July 14, 2008, for a warrant for President al-Bashir, the Sudanese government began a diplomatic campaign to secure a deferral of the proceedings under article 16 of the Rome Statute of the ICC. This provision empowers the Security Council to suspend court proceedings for up to 12 months if required to maintain international peace and security. Human Rights Watch is deeply concerned by this attempt to circumvent justice for the victims of atrocities in Darfur. Security Council members should not permit the Government of Sudan to obtain impunity for alleged genocide, crimes against humanity, and war crimes on the basis of threats.

Far from operating as effective leverage to compel positive steps from Khartoum, suspending the court’s work in return for promises of future good behavior would not result in significant changes in the government’s abusive policies or conduct in Darfur. Nor would it lead to improved civilian protection or justice for Darfur’s people. Khartoum has time and again made commitments to Security Council members and the international community that have proven to be worthless. By accepting further promises from the Sudanese government, the Security Council would be renouncing its own commitment to bring justice to Darfur.

In the meantime, the Sudanese government continues to carry out attacks on civilians in Darfur. The government reportedly bombed three villages in July alone, two while President al-Bashir was visiting Darfur. In mid-August, the government of Sudan launched a fresh offensive in North Darfur, with government forces working in tandem with Janjaweed militia to carry out attacks on at least two populated villages, killing at least five civilians. In addition, no investigation has been conducted into the bombing of three villages in a single day in February 2008 in which more than 100 civilians were killed.

It has been argued that a deferral is necessary to obtain a peace agreement among the warring parties in Darfur. However, there is no plausible connection between the continuing failure of peace talks and the request for an arrest warrant. The deadlock is rooted in the lack of political will on all sides to achieve an agreement, and those factors have nothing to do with the International Criminal Court’s case.

Another argument for a suspension of the warrant request is to preempt the implicit and explicit threats of retaliatory attack by Sudanese government forces against civilians, United Nations - African Union Mission in Darfur (UNAMID) peacekeepers, and humanitarian workers. Given Khartoum’s track record, Human Rights Watch would not minimize these threats. However, the Government of Sudan is obligated by Security Council resolution to facilitate UNAMID’s deployment and by international law to protect its own citizens and provide full, safe, and unhindered access of relief personnel to all those in need in Darfur. The request for an arrest warrant for the Sudanese head of state does not alter these governmental obligations—obligations that Khartoum has, in any case, persistently ignored. Threats by Sudanese officials to commit more crimes should not be rewarded by suspending efforts to end impunity in the region.

Human Rights Watch believes that Security Council members jointly and separately—including those with close ties to Khartoum—have a responsibility and an interest in conveying very clearly that any retaliatory violence against civilians, UNAMID peacekeepers, or humanitarian workers will be viewed seriously and responded to accordingly. The Council needs to make clear that such attacks would thoroughly isolate the Sudanese government on the world stage and would bring about further sanctions. In addition, we believe that the Security Council should make it clear that such attacks could amount to international crimes and that those responsible could become the targets of criminal prosecution.

While a suspension under article 16 of the Rome Statute is limited to a renewable 12-month duration, once a deferral takes effect, it will be extremely difficult to subsequently terminate it. We believe that if the Security Council grants a deferral, there will be enormous pressure to renew it in a year’s time and then again at the expiration of every succeeding year. A Security Council suspension could encourage the Sudanese authorities to threaten more violence to extend it, making the Council hostage to threats of violence against noncombatants on the ground. A deferral based on Khartoum’s promises of improvement would also likely leave the Security Council in the same exact position when the suspension is up for renewal in a year. Human Rights Watch believes that the Council must acknowledge the reality that deferring the proceedings could create permanent impunity.

In addition to these immediate practical issues, broader questions of principle are also at stake.

A deferral of the ICC’s judicial role risks denying redress to the victims of horrific abuses and must be invoked with extreme caution. Moreover, suspending ongoing independent judicial activity would set a very dangerous precedent with implications that will reach far beyond Darfur and Sudan. By effectively bartering away accountability for the most serious crimes under international law, the Council would give encouragement to all those alleged to be responsible for major atrocities to combine threats and negotiation, as Khartoum is now attempting to do, to void the rule of law.

Finally, the Security Council’s own credibility is at issue here. The Council referred the Darfur situation to the ICC prosecutor for investigation and prosecution. On June 16, 2008, after hearing the prosecutor report that he had found the entire state apparatus to be mobilized for commission of crimes, the Council adopted a Presidential Statement calling on the government in Khartom to cooperate with the court. To suspend the process now because the prosecutor is seeking a warrant for President al-Bashir would shred the Council’s commitment to the people of Darfur as well as any credible claim to a meaningful and coherent Darfur policy. Rejecting a suspension would also be consistent with strong authority that supports the view that article 16 was not envisaged to suspend an investigation that the Security Council had itself mandated and that had been underway for several years.

We do not mean to suggest that Sudan should be a passive bystander to the ICC proceedings. By demonstrating that it is genuinely willing and able to prosecute this case in its national courts, Sudanese authorities could challenge the admissibility of the situation or any case under article 19 of the Rome Statute. The ICC judges can rule on whether the Sudanese authorities have the willingness and ability to investigate or prosecute. However, this judicial procedure is entirely unrelated to the Security Council’s powers to suspend the investigation under article 16.

We, therefore, urge your government, at the first appropriate opportunity, to make clear its opposition to any effort to suspend the ICC proceedings. In addition, we urge your delegation to vote against any resolution that could come before the Council providing for a suspension of the ICC investigation of President al-Bashir or the situation in Darfur generally.

Moreover, Human Rights Watch believes that it is essential that the Council urge Khartoum to abide by its legal obligations with respect to retaliation against civilians, peacekeepers, or humanitarian workers. It is very important to send a clear message to the Sudanese government that rejects impunity for genocide, crimes against humanity, and war crimes.

We would be happy to meet with you at your convenience to discuss these matters further.

Sincerely,

Richard Dicker
International Justice Program Director

Georgette Gagnon
Africa Division Director

Steve Crawshaw
UN Advocacy Director