New Zealand statement. Delivered by Gerard van Bohemen Permanent Representative of New Zealand to the United Nations

Thank you Mr President.

I would like to thank the Prosecutor of the International Criminal Court, Fatou Bensouda, for her briefing.

We are deeply concerned about the situation in Darfur. At Ms Bensouda’s last briefing, New Zealand spoke at some length about the gravity of the situation and the need for accountability. While, as Ms Bensouda has reported, nothing has really changed, I will not reiterate the sentiments I expressed in June.

Instead, I want to focus on non-cooperation with the ICC’s activities in Sudan. This is the key issue before us today. It has been the key issue before us at these briefings for more than ten years.

As a State Party to the Rome Statute, New Zealand is concerned by all instances of non-cooperation, whether they occur in relation to a Security Council referral or otherwise. However, we are realistic and we know there are non-States Parties around this table who may not share these concerns. As such, today we will focus on concerns that every Member of this Council, and every member of the United Nations, must share: non-compliance with Chapter VII resolutions of this Council.

Sudan is required, under resolution 1593 and the United Nations Charter, to cooperate with the ICC’s investigations in Darfur. Sudan’s non-cooperation with the Court amounts to non-compliance with a Council resolution and its obligations under the Charter.

As the Prosecutor has reminded us so clearly and uncomfortably today, this Council has responded with deafening silence to this situation. This Council’s inaction in the face of this non-compliance with its own resolution undermines its credibility. Indeed, it undermines the credibility of all of its decisions.

This is a serious issue. Sadly, it is a regular issue – the Secretary-General has relayed 11 findings of non-cooperation to the Council. The most recent was last Friday.

This finding relates to Mr Abdallah Banda, an indictee from a rebel group who is alleged to be responsible for a deadly attack against African Union Peacekeepers in South Darfur in 2007. It is alleged that Banda led a group which attacked an AMIS camp with anti-aircraft guns, artillery guns and rocket-propelled grenade launchers, killing 12 Peacekeepers from Nigeria, Mali, Senegal and Botswana.

This Council unanimously adopted a statement condemning this attack and demanding that “no effort be spared” in identifying and bringing to justice the perpetrators of it.

The Prosecutor of the ICC has taken up this call and is trying to pursue Mr Banda. She is, however, stymied in her efforts. The Government of Sudan refuses even to receive her communications on this case, let alone cooperate in any practical or tangible way. Mr Banda, whom this Council committed to bring to justice, is at large in Sudan and this Council has done nothing to support the one institution seeking to bring him to justice.

In the face of this contradiction, New Zealand would like to make two proposals. They are not in substitution for, or in contradiction with, the proposals outlined by the Prosecutor, which we also fully endorse.

Our first proposal is simple: for this Council to be more structured in its consideration of these findings of non-cooperation. There is currently no consistent practice. In most instances, despite these findings being relayed by the Secretary-General in accordance with the Relationship Agreement, the Council does not even discuss them - and certainly not in any fulsome way.

In our view, when a non-cooperation finding is received, the Council should discuss it. As we would with other issues, we should consider all the tools the Council has at its disposal, such as a resolution or another product, even a press statement, a letter from the Council or a meeting with the concerned country. Then we should make an assessment, on a case-by-case basis, about which, if any, of these tools we should use.

We accept that, as is often the case, the Council may not agree on which tool to use or how to respond. The fact we may differ on how to respond should not mean that the Council does not consider, fully, the options before us.

If this Council ignored every instance where we did not agree, there would be many important issues left off the agenda. This is an issue that goes to the effectiveness of the Council and its decisions and needs to be addressed. To ignore these issues is neither a productive nor credible way forward.

Our second proposal goes to the deeper issue, this Council’s relationship with the government of Sudan. While it may seem obvious, it deserves repeating, as a crucial part of this Council ensuring implementation of its decisions is the relationship with the country concerned. As we have said before, including when the Prosecutor was here in June, the current Council approach to Sudan is not working. There is a clear need for the Council to build a new relationship with Khartoum.

There is an opening now. We should capitalise on the appointment of the new Special Representative of the Secretary-General for UNAMID - Martin Uhomoibhi – as a moment to revitalise this Council’s relationship with Sudan.

Part of the Council building this relationship and a renewed approach should be a better understanding of the situation on the ground. In this regard, New Zealand would see a Council visit to Sudan as a good opportunity that should be seriously considered.

These two proposals are about getting the essentials of our work right: credible working methods, effective relationships and good information. While some steps are simpler than others, continuing to do nothing is not an option.

I would like to close by recognising Chile’s contribution as the focal point for States Parties on the Council, to many of the matters I’ve raised today. Ambassador Barros’s leadership and that of his team will be missed.