Mbeki softens stance on Darfur hybrid court proposal

December 16, 2009 (KHARTOUM) – The chairman of the African Union High Level Panel on Darfur (AUPD) Thabo Mbeki appeared to downplay the emphasis on implementing the recommendations included in the report compiled by his team this year including the hybrid court proposal to try the Darfur war crimes suspects.

The former South African president is currently in Sudan where he held talks with government officials and several political parties that focus primarily on the mechanisms needed to implement the report.

The AU Peace and Security Council (PSC) endorsed the report last October and established the High Level Implementation Panel (AUHIP) to execute its findings, comprising of Mbeki, former Burundian president Pierre Buyoya, and former Nigerian president General Abdul salami Abu-Bakr.

The AUPD has stated in its report that the Sudanese criminal justice response to Darfur was “ineffective and confusing” and that it “failed to obtain the confidence of the people of Darfur”.

“It will therefore require changes to be introduced within the Sudanese legal system to provide effective accountability for the different levels of criminal participation” the report of the AUPD stated.

The commission called for a “hybrid Criminal Court which shall exercise original and appellate jurisdiction over individuals who appear to bear particular responsibility for the gravest crimes committed during the conflict in Darfur, and to be constituted by judges of Sudanese and other nationalities”.

Last week the Sudanese president Omer Hassan Al-Bashir, who is subject of an arrest warrant by the International Criminal Court (ICC), said in an interview with ‘Russia Today’ TV that his country rejects the idea of foreign judges sitting on the bench for Darfur trials.

“We on our end expressed reservation on this point [hybrid court] because we have an independent judiciary and the judicial institution has the [final] say in forming any courts inside the borders to prosecute any Sudanese [citizen]. Mbeki understands our reservations” Bashir said.

“The proposed court is after achieving peace and reconciliation in accordance with the norms and customs of Darfur in resolving disputes and defusing differences and reconciliation is the master of all rulings” he added.

But Mbeki today denied that he is pressing Khartoum to accept the idea of creating hybrid courts for Darfur suggesting that the matter is up for negotiators to decide on it and denying that the proposal violated Sudan’s sovereignty as some officials have said.

“We should remember that these proposals, endorsed by the AU, are matters that are still going to be negotiated by the Sudanese themselves,” Xinhua news agency quoted him as telling reporters at a press conference following talks with Bashir.

“So when in the negotiating process, all of the parties negotiating peace in Darfur must consider these proposals,” he added.

Mbeki also hinted that his role will not be limited to the crisis in Darfur but will also include other areas that are not part of his original mandate.

“We will work out a program as to what the panel could do to accelerate the Darfur peace process, implementation of the Comprehensive Peace Agreement (CPA) between north and south Sudan, and preparation for the general elections and referendum on self-determination for southern Sudan,” he said.

Sudan official news agency (SUNA) cited Mbeki as saying that Bashir assured him on achieving justice and prosecuting all war crime perpetrators with no impunity adding that the interim constitution does not contradict with amending any laws.

However, SUNA made no mention of the hybrid court proposal being tackled in Mbeki’s discussions with Bashir.

The statements by Sudanese officials on the justice portion of the report shows a rift with the Mbeki panel particularly on whether the constitution allows for the participation of non-Sudanese judges as well as the precedence of peace over justice.

The AUPD has concluded that “the objectives of peace, justice and reconciliation in Darfur are interconnected, mutually interdependent and equally desirable”.

The implementation of the hybrid court proposal will likely prove to be challenging to Mbeki and the AU in face of stiff resistance to the idea by Khartoum and the pro-government Sudanese bar association.

A number of pro-government columnists and independent figures have urged Khartoum to accept the proposal so as not to lose the support of the AU in the confrontation with the ICC.

The formation of the panel was made in the wake of the imminent issuance of the arrest warrant for Bashir by the ICC. Many critics along with Darfur rebels say that the pan-African body was seeking to circumvent the indictment and find an exit for the Sudanese president from prosecution.

The AU has criticized the arrest warrant and urged the UN Security Council (UNSC) to defer the indictment for 12 months under the Rome Statute. However, the council ignored the request prompting a decision by the AU summit last July not to cooperate with the Hague court even for countries that are signatories to the treaty.

During a briefing by the ICC prosecutor Luis Moreno-Ocampo at the UNSC this month, African countries on the council including Libya, Burkina Faso and Uganda urged Khartoum to comply with the panel’s findings.

However, some observers say that it is unlikely that the Sudanese government will come under pressure from the AU to implement the recommendations in light of the political support it historically afforded to Khartoum.

The Darfur rebel groups today deplored what they described as “blatant” bias by Mbeki in favor of Khartoum.

“This is a serious setback and very unfortunate position taken by Mbeki on the issue of justice. He now wants to make the hybrid courts he proposed a subject of negotiation. This is totally unacceptable. Our position has and always will be that justice is not on the table for compromise,” the Justice and Equality Movement (JEM) spokesperson Ahmed Hussein Adam told Sudan Tribune.

“He [Mbeki] is now reneging on implementing the recommendations that he came up with right after meeting with Bashir. The Sudanese government is manipulating him as it always does with the AU,” Hussein added.

The JEM official posed a question “when will the Africans say enough is enough? When will they adhere to their constitutive Act? How can Mbeki propose something then throw it all behind him after talking to Khartoum? What credibility does he has left? He is now aligning his position with the statements made by Bashir last week on the hybrid court”.

JEM has previously refused to sit down with the panel during its fact finding mission citing lack of trust in its impartiality.

The Sudan Liberation Movement (SLM) chief Abdel-Wahid Al-Nur said he is not surprised with the remarks coming out of Mbeki today.

“Before he chaired the panel he [Mbeki] was on Bashir’s side and against prosecuting him so what would you really expect? Even the AU which appointed him has never taken a firm stance on the genocide that took place against our people in Darfur. They just want to help Sudanese officials avoid prosecution” Al-Nur said.

“The ICC is the only credible venue to try those who committed the heinous crimes and massacres against the people of Darfur. Sudan now clearly said they don’t want the hybrid court so the AU must be brave enough and support the ICC. They saw firsthand how the [Sudanese] regime does not want justice” he added.

The SLM leader said that the AU “has wasted a golden opportunity to come clean on the issue of justice for their African people killed in Darfur”.

In his meeting with Darfur IDP’s, Mbeki has vehemently denied that the goal of his panel is to help Khartoum evade ICC prosecutions.

Alex De Waal, a Sudan expert who is also an adviser to the panel, writes in his blog ‘Making Sense of Darfur, about what they encountered in their discussions on justice with various parties they met.

De Waal gives examples of how the panel was initially met with intense skepticism on its impartiality by IDP’s and accusations that it is a cover up to protect Bashir from ICC.

“The allegation that Pres. Mbeki was intent on salvaging Pres. Bashir came up several times in the discussion. One woman said, “We fear you are here to defend the criminal Omar al Bashir.” One man stood up and said, “Seven members of my family were killed. How should I feel if Thabo Mbeki says that Omar al Bashir should not go to court?” De Waal writes.

“Pres. Mbeki challenged him, “from where did you get this information that I said that President Bashir should not go to court?” The man responded, “it is well known.” He then said that the Africans were the ones saying Bashir should not go to the ICC, citing the early June meeting in Addis Ababa to discuss the African position on the ICC. This reply did not satisfy Pres. Mbeki, who continued to press him, “I asked you a question. Please answer it. You made an allegation. From where did you get this information?” The man said it was the BBC”.

Last month the former Egyptian foreign minister Ahmed Maher Al-Sayed who was a member of the panel said that the AUPD goal “was to find a way out [to Bashir] from the dilemma of the ICC that sparked a great deal of controversy”.

“Incriminating the president is out of question and fundamentally unacceptable” the former Egyptian foreign minister said in an interview with the Egypt based Al-Masry Al-Youm newspaper.

Mbeki was reportedly outraged over Maher’s statements and sent a “strongly worded letter” to the Egyptian foreign ministry protesting them.

The former South African president will head to New York later this week to brief the UNSC on his report on Monday December 21st.

(ST)