INTERVIEW: Sudan expert warns government against rejecting Darfur hybrid tribunals

By Muhammad Osman

September 4, 2010 (KHARTOUM) – A prominent Sudan expert has warned the government against the consequences of failing to accept the proposal of the African Union (AU) to establish hybrid courts to adjudicate cases of crimes committed in Darfur region.

In exclusive statements to Sudan Tribune from Khartoum yesterday, Alex De Waal said that such a failure would be “foolish” and would make the Sudanese government lose support in Africa.

De Waal has also argued that the cause of justice in Darfur is “not well-served” by the International Criminal Court (ICC) and chided the ICC’s chief prosecutor, Luis-Moreno Ocampo, for seeking the arrest of Sudan’s president Omer Al-Bashir.

Alex De Waal is a British researcher and program director of the New York-based Social Science Research Council. He has authored several publications on Sudan and particularly on Darfur, including “Famine that Kills: Darfur, Sudan”, “War in Sudan: An Analysis of Conflict” and “Darfur: a short history of a long war” with Julie Flint.

He is currently serving as an adviser to the AU High-Level Panel on Darfur (AUPD), which was mandated in July 2008 by the AU’s Peace and Security Council to examine the situation in Darfur and submit recommendations on how to resolve Darfur crisis through reconciling elements of peace, justice and reconciliation. The eight-member AUPD is chaired by former South African President Thabo Mbeki.

More than a year later on October 8, 2009, the panel submitted its final report to the AU and concluded the Sudanese criminal justice response to Darfur was “ineffective and confusing” and that it “failed to obtain the confidence of the people of Darfur.”

Therefore, the panel recommended hybrid courts “constituted by judges of Sudanese and other nationalities” be established to “exercise original and appellate jurisdiction over individuals who appear to bear particular responsibility for the gravest crimes committed during the conflict in Darfur”

However, the Sudanese government at its top level has rejected the proposal. Sudan’s 2nd Vice-President Ali Osman Taha told the AU Peace and Security Council summit in Abuja in November 2009 that the Sudanese law and the competence of its judiciary “provide the necessary framework to achieve justice.”

Later in December, president Omer Hassan Al-Bashir, who faces two warrants of arrest by the ICC for his alleged role in the Darfur conflict, 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, at 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” Al-Bashir said.

But according to De Waal, members of the AUPD and its chairman “repeatedly bring up this issue with the government.” De Waal said that the AU “has given the Sudan government an opportunity for an overall political package that includes justice.”

“If the Sudan government fails to take that opportunity”, De Waal warned, “it will be foolish and it will lose a lot of the support and sympathy it may have in Africa.”

De Waal was keen to point out that the mandate of the panel is due to be up in October next month and that the panel will then have to report back to the AU.

“You must watch and see what is in that report” he told me, in an indication that the panel’s report could point to the government’s failure to comply with the panel’s recommendations.

The Mebki panel so far has appeared to have shifted focus from Darfur to the upcoming referendum in South Sudan which is part of his mandate in accordance with the AU resolution.

He has been met with a major setback during an attempt to arrange a meeting between opposition parties and the ruling National Congress Party (NCP) ahead of the elections that took place last April.

Opposition leaders later slammed Mbeki saying he succumbed to pressure from the NCP and suggesting that it is in line with the AU’s supportive position of Khartoum.

De Waal has earned a reputation of being strongly opposed to the ICC’s warrant of arrest for President Al-Bashir and broadly critical of the ICC’s prosecutor Luis Moreno-Ocampo.

The International Criminal Court has issued an arrest warrant for Bashir for war crimes and genocide in Sudan’s western Darfur region during a counter-insurgency campaign.

He has consistently argued that the arrest warrant against Al-Bashir is detrimental to the cause of peace and justice in Darfur and tantamount to demanding a “regime change” in Khartoum.

On this issue, De Waal has opined the government’s failure to remedy the justice problem in Darfur is what has led to the ICC’s involvement in the case but he also raised doubts about the court’s effectiveness and the competence of its prosecutor.

“Horrendous crimes were committed in Darfur, especially during 2003-2004. The great majority of those crimes were committed by government forces or people acting on behalf of the government” he said, adding that the government “has taken no serious actions over all these years for justice and accountability, really nothing.”

“And because of that failure” he said later “that the ICC has come in to Sudan” He concluded that the government “has only itself to blame.”

However, De Waal says that the cause of justice for Darfur people “is not well served by the ICC for two reasons.”

“The first” he says “is that the ICC will only prosecute a very small number of people. It will not bring to justice more than five, six or ten people. Even if it was a well-functioning, very professional court, the majority that it would ever bring to trial would be ten or 12 people.”

Louis Moreno Ocampo is the second reason. “If the people of Darfur or Sudan think that Louis Moreno Ocampo is the man who will bring justice to Darfur, I think they are going to be disappointed because I don’t think he is very professional” he said.

“I think he [Ocampo] has made a lot of mistakes and we see the case that he has in court is failing and the way that he constructed his case against president Bashir was very poor” he added later.

In January 2009, De Waal published a critique of the ICC prosecutor’s case against Al-Bashir, excoriating the prosecutor’s application for Al-Bashir’s arrest warrant as “riddled with flaws.”

In his critique, De Waal argued that the mode of liability pursued by the prosecutor, which in Al-Bashir’s case is the indirect preparation of crimes on account of “Al-Bashir’s total control over the every relevant institution of the state”, is “neither demonstrated in the evidence presented nor supported by past patterns of action.”

De Waal said that “those who want justice for Darfur should be criticizing Moreno Ocampo. They should be saying this man is not up to the job that we want a more professional ICC.”

According to De Waal, Ocampo’s “political” choice of going after Al-Bashir is “very poor” because its result was to allow the President to “rally people on nationalism, etc.”

The Darfur conflict broke out in 2003 when rebels, belonging mostly to African ethnic groups in Darfur, staged an armed struggle against the central government of Khartoum, accusing it of neglecting the region in terms of development, wealth-sharing and representation.

According to UN estimates, the conflict has killed 300,000 people and displaced million people. The Sudanese government says the conflict has been exaggerated by Western media, putting the death toll at only 10,000.

(ST)