EXCLUSIVE: AU Mbeki panel makes implicit endorsement of ICC prosecutions in Darfur

By Wasil Ali

October 22, 2009 (WASHINGTON) – The African Union (AU) panel that was tasked with balancing peace and accountability in Darfur has made an implicit endorsement of the International Criminal Court (ICC) prosecutions despite unfavorable disposition to the issue by African leaders and also called for a wide range of changes to Sudanese law and criminal law system.

The eight member panel headed by the former South African president Thabo Mbeki completed their recommendations and submitted it earlier this month but its contents have not been disclosed pending an AU Peace and Security meeting in Nigeria next week to discuss the report.

The AU formed the commission few weeks before the ICC was expected issued an arrest warrant for Sudanese president Omer Hassan Al-Bashir on seven counts of war crimes and crimes against humanity in Darfur.

The Nigerian government invited Bashir to the special session and promised not to arrest him.

A source told the Agence France Presse (AFP) that Bashir “still considering the invitation, afraid we may turn him in, which will not happen,”

“Hand him over to who when he is invited by the AU?” he added.

Asked to confirm if the Sudanese president was invited, Nigerian Foreign Minister Ojo Maduekwe said he was not going “to speculate on who is invited and who is not”.

Many critics and rebel groups have accused the panel of seeking to circumvent the work of the ICC particularly after the AU issued a resolution last July instructing its members not to cooperate with the Hague tribunal in apprehending Bashir.

But Mbeki appeared to distance himself from the position of the pan-African body in his report seen by Sudan Tribune.

“The ICC is a ‘court of last resort’ as well as of limited practical capacity: it can only target a few people for prosecution. Indeed, conscious of its limited resources, the Prosecutor of the ICC has adopted a policy of focusing only on those few who he believes bear the greatest responsibility for the most serious crimes that have been committed in each situation” the report says.

“This prosecutorial policy inevitably leaves the overwhelming majority of individuals outside of the ICC system and still needing to answer for crimes they might have committed…. justice from the ICC, exclusively, would therefore leave impunity for the vast majority of offenders in Darfur, including virtually all direct perpetrators of the offences”.

The findings of the mission indicate an approach where the ICC work would now be limited to the six individuals already charged by the court with an alternative mechanism to try the remaining individuals.

However, the report hinted that Sudan could still challenge the admissibility of the cases against its officials at the ICC if it were to prosecute them internally.

“The principle of complementarity under the Rome Statute in any event gives precedence to national systems, even when a situation has been referred by the Security Council. This means that the ICC is obliged to take into consideration the fact that a State has taken or is taking effective justice measures to deal with relevant crimes”.

Last year the Sudanese government appointed a special prosecutor Nimr Ibrahim Mohamed to look in the Darfur abuses committed since 2003 and promised to bring Ali Kushayb, an alleged Janjaweed militia leader wanted by the ICC, before court.

However, to date Kushayb has not been prosecuted and an attempt by the special prosecutor to probe the governor of South Kordofan Ahmed Haroun, also wanted by the ICC, was blocked by the justice minister.

The panel suggested that the Sudanese judicial system on its own is incapable of carrying out credible prosecutions in Darfur and calling for further changes within the legal system.

“Currently, the criminal justice response to Darfur is ineffective and confusing and has also 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”.

A key recommendation in the report yet widely anticipated is the establishment of a hybrid court to try the perpetrators of crimes in the war torn region.

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”.

It further outlined the modalities for the formation its formation saying that it would consist of a “Hybrid Criminal Chamber, which should be composed of panels of highly qualified and suitable individuals of Sudanese and other nationalities”.

“The formula for nominating non?Sudanese nationals and for constituting the judicial panels of the Hybrid Court, as well as for the deployment of prosecutorial and investigations support, would be proposed by the AU”.

The panel said that the criteria for selection to the court should include “proven professional competence in criminal law and procedure, and experience in the function (judicial, prosecutorial, investigative, or administrative) for which the appointment is made, capacity to adapt to the legal system of Sudan, and a fair gender balance. Candidates for nomination should not be restricted to African individuals”.

“In the selection of candidates for judges, observers or senior personnel, the AU should seek the advice of internationally respected judges or jurists or international organizations, and should publish its consultation process”.

The Sudanese government has vehemently rejected proposals by the Arab league and other Sudanese leaders including ex-Prime minister Al-Sadiq Al-Mahdi saying its judiciary is capable of handling the cases.

Fathi Khalil who leads the Sudanese bar association told the Hague based Institute for War and Peace Reporting (IWPR) last month that any such step is in violation of the country’s laws.

“The Sudanese constitution and laws reject the participation of foreign judges in Sudanese courts,” Khalil said.

“We have an independent and fair judicial system and so there is no need for hybrid courts,” he added.

But Mbeki’s panel suggested that Sudanese laws does not explicitly prohibits non-Sudanese from being part of the judiciary.

“In order to facilitate the establishment of a Hybrid Court, the Government of Sudan should take immediate steps to introduce legislation to allow legally qualified non?nationals to serve on the judiciary of Sudan (c.f. section 23, National Judiciary Act, 1986). In this connection, the Panel notes that the Constitution of Sudan does not expressly prohibit non- Sudanese nationals from being appointed to the judiciary of Sudan, and would not therefore need to be amended”.

Sudan in the past has emphasized that it will comply with the recommendations of the panel and implement it. However it is not clear what Khartoum’s position would be on the hybrid courts.

The commission also called for removing “legal and de facto immunities and other legal impediments to prosecutions, such as periods of limitation” as well as adopting measures for dealing with sexual violence and protecting witnesses.

The AU and Sudan would receive regular reports on the progress related to the hybrid court.

The UN Security Council referred the situation in Darfur to the ICC at the recommendation of a UN commission of inquiry headed by former President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) Italian Antonio Cassese.

The commission concluded that the government did not pursue a policy of genocide in the Darfur region but that Khartoum and government-sponsored Arab militias known as the Janjaweed engaged in “widespread and systematic” abuse that may constitute crimes against humanity.

They further said that Sudanese judiciary is “is unable or unwilling” to prosecute those crimes and thus recommended referring the situation to the ICC.

However, Sudan has rejected jurisdiction of the ICC and haled cooperation with the court in February 2007.

(ST)