Letter to AU head urging support for a SC referral of the situation in Sudan to ICC
Amnesty International
Open letter to the President of Nigeria urging support for a UN Security Council referral of the situtation in Sudan to the ICC
– His Excellency President Olusegun Obasanjo
– Chairman African Union and
President of the Republic of Nigeria
– Office of the President
– Aso Rock
– Abuja, Federal Capital Territory
– Nigeria
– 10 February 2005
Your Excellency:
We are writing to you as the Chairman of the African Union (AU) to urge you to use your good offices to support a Security Council referral of the situation in Sudan, including Darfur, to the Prosecutor of the International Criminal Court (ICC), as part of a comprehensive plan to end impunity for crimes under international law committed in that country.
Last month, the International Commission of Inquiry on Darfur, established by the Security Council itself, has presented a detailed report on war crimes and crimes against humanity committed on a large scale in the region. It has explained why the ICC is the best means to investigate and prosecute some of those suspected of these crimes. The Security Council should now implement this recommendation, ensuring that the referral includes the entire situation in Sudan.
The AU has consistently expressed its commitment to finding a lasting solution to the human rights crisis in Darfur, and we very much appreciate the organisation’s involvement in the region. The African Mission in Sudan (AMIS) is carrying out a role of fundamental importance investigating attacks against civilians with a mandate to protect civilians in Darfur.
In particular, the AU Assembly has reaffirmed its commitment to ending the continuing violations of international human rights law and international humanitarian law in Darfur, as well as to investigating and, where there is sufficient admissible evidence, prosecuting suspected perpetrators Furthermore, the AU, through the work of its various institutions, including the Peace and Security Council and the African Commission on Human and Peoples’ Rights, has recognized the importance of fighting impunity in Darfur. At its Third Ordinary Session in July 2004 in Addis Ababa, the AU Assembly reiterated “the need to bring to justice all those responsible for human rights violations in Darfur.”
Amnesty International believes that ending impunity for the crimes committed in all parts of Sudan, including Darfur, has to be a central element in the effort to find a durable solution to the conflicts in the country. We call for the development of a long-term, comprehensive plan to end impunity in Sudan, in a transparent process involving close consultation with civil society.
If those suspected of grave abuses, including murder and rape, are not brought to justice, it will signal to them, and others, that they can continue to violate international human rights law and international humanitarian law in Darfur or elsewhere, in total impunity.
Impunity encourages the recurrence of crimes under international law, stripping international human rights law and international humanitarian law of their deterrent effect. Ending impunity is essential: to assist the victims of serious crimes under international law and the relatives to come to terms with their loss and to obtain justice, truth and full reparation; to ensure that the perpetrators of such crimes are put in a position where they can no longer commit such abuses; to signal that such crimes will no longer be tolerated; to avoid the risk that people seek revenge and take justice in their own hands; and to reduce the threat that such crimes are repeated in the future.
The United States Ambassador on war crimes, Pierre-Richard Prosper, stated on 27 January: “We do not want to be a party to legitimizing the ICC”, suggesting that the United States of America (USA) will oppose Security Council referral to the ICC on purely ideological grounds. China and Russia are also known to be reluctant to refer the situation to the ICC Prosecutor.
In this situation the AU will need to make its voice heard in support of justice for the victims of crimes under international law in Darfur. Expressing such support will be consistent with the AU Constitutive Act, which explicitly provides in Article 4 that “rejection of impunity” is a fundamental objective of the AU. Supporting Security Council referral will demonstrate the determination of the AU to translate its expansive human rights commitments into action, and send the signal to other AU member-states that the organization will not tolerate a breach of its obligations under the Constitutive Act and the African Charter on Human and Peoples’ Rights. At a time when there is strong international support for a Security Council referral to the Prosecutor of the ICC, the AU should not be silent or indifferent.
Sudan signed the Rome Statute of the International Criminal Court on 8 September 2000, demonstrating a will to ratify it and obliging it to refrain from acts which would defeat the object and purpose of that treaty. Even after the detailed testimonies cited by the UN Commission of Inquiry, the Sudanese government continues to deny its role and responsibility in the war crimes and crimes against humanity committed in Darfur. At the same time, as the UN Commission of Inquiry found, the Sudanese authorities have proved unable and unwilling to ensure accountability for these crimes. In such circumstances, a referral to the ICC of the situation in Sudan, including Darfur, by the Security Council will be an important first step as part of a long-term plan of action to achieve justice and accountability for the crimes under international law committed thorough the country.
The USA is proposing the creation of an ad hoc tribunal to be located in Arusha. The International Commission of Inquiry on Darfur, which included nationals of Ghana, South Africa and Egypt in its five-person panel, found that setting up an ad hoc tribunal or extending the mandate of the International Criminal Tribunal for Rwanda would be slow and expensive. As the experience of the International Criminal Tribunal for the ex Yugoslavia and the International Criminal Tribunal for Rwanda shows, ad hoc arrangements often face considerable impediments. Such ad hoc tribunals often lack adequate funding and staffing, and do not always have the logistical capacity to respond quickly, efficiently and effectively to a situation such as the one prevailing in Darfur. Their methods of investigation and prosecution are far more expensive than the approach being used by the ICC. Indeed, the USA repeatedly emphasized the advantages of a permanent international criminal court over ad hoc international tribunals established by the Security Council before the adoption of the Rome Statute.
The alternative proposed by the USA – solely to avoid “legitimising the ICC”- may also face accusations of political bias, selective justice and suspicion concerning its independence. Security Council referral to the ICC, which is supported by the majority members of the international community, would eliminate such objections. Amnesty International believes that the Commission of Inquiry recommendation for referral is the best first step with respect to the violations of international human rights law and international humanitarian law committed in Sudan.
We urge the AU to publicly support a Security Council referral of the situation in Sudan, including Darfur, to the Prosecutor of the ICC, as a first step in a long-term, comprehensive plan of action for ending crimes under international law in the entire country. Otherwise, there is little chance that victims of such crimes in Sudan will achieve justice, truth and full reparation and an important opportunity to resolve the conflict in Sudan will be missed.
Amnesty International looks forward very much to your leadership role in this matter.
Yours sincerely,
For Irene Khan, Secretary General