AU: Back Mbeki Panel Call for Darfur Prosecutions

Human Rights Watch

AU: Back Mbeki Panel Call for Darfur Prosecutions

Hybrid Court No Replacement for ICC; National Reforms Needed

October 28, 2009

(New York) - The African Union (AU) should support the High-Level Panel on Darfur's call for prosecutions to provide justice for victims in Darfur, Human Rights Watch said today. Human Rights Watch said that the panel's recommendation to create a "hybrid court" - along with establishing a truth and reconciliation commission and strengthening the domestic criminal justice system - could usefully supplement justice efforts in Darfur, but not replace International Criminal Court (ICC) cases.

The panel's report is being presented to a meeting of the AU Peace and Security Council in Abuja on October 29.

"African Union states should endorse the Mbeki Panel's call for prosecutions - the victims of the attacks in Darfur deserve justice," said Richard Dicker, International Justice Program director at Human Rights Watch. "A hybrid court and national law reforms could potentially help, but not substitute the ICC's cases."

The High-Level Panel on Darfur, headed by Thabo Mbeki, the former South African president, was established by the AU in March 2009 to explore ways to secure peace, justice, and reconciliation in Darfur. The panel carried out its work - including holding a series of hearings in Sudan - for approximately six months and prepared a comprehensive 125-page report.

The panel concluded that the "people of Darfur have suffered extreme violence and gross violations of human rights." One of the panel's main recommendations is to establish a new hybrid court consisting of Sudanese judges and judges appointed by the AU to prosecute the most serious crimes committed in Darfur.

The Mbeki Panel did not take a position on whether the hybrid court would seek to try cases currently before the ICC, which has been investigating and prosecuting crimes in Darfur since 2005, when the United Nations Security Council referred the situation to the ICC.

The ICC currently has cases against four individuals suspected of war crimes and crimes against humanity committed in Darfur. One of these is President Omar al-Bashir, for whom the ICC issued an arrest warrant on March 4, 2009.

"Sudan has been obstructing justice for crimes committed in Darfur for years," Dicker said. "The proposed hybrid court and national law reforms should not delay the ICC cases for one minute. If and when a hybrid court gets up and running, there will be plenty of additional cases to fill its docket."

The establishment of a new hybrid court - which Human Rights Watch said should conform to international standards for fair trials - is likely to face major obstacles, Human Rights Watch said. The Sudanese leadership has previously undercut efforts by domestic courts to prosecute Darfur atrocities. A hybrid court that has Sudanese participation could be plagued by a similar lack of political will to hold perpetrators to account. In addition, new courts can take a long time to create and can be very expensive.

The Mbeki Panel also recommends strengthening the national criminal justice system and removing immunities for state actors who violate human rights. These recommendations are consistent with legal and institutional reforms required under the terms of the 2005 Comprehensive Peace Agreement, signed by the ruling National Congress Party and the southern Sudan People's Liberation Movement, which ended more than 20 years of civil war.

A genuine law reform process requires the Sudanese legislature to repeal or amend existing laws to bring them into conformity with applicable international human rights standards, Human Rights Watch said. These should include, as a matter of urgency, reform of the National Security Forces Act, which currently grants sweeping powers of arrest and detention to national security authorities who continue to commit human rights violations in Darfur and across Sudan.
"The Mbeki Panel's call for real legal reform in Sudan as one key element in improving accountability for human rights violations is welcome," said Georgette Gagnon, Africa director at Human Rights Watch. "Genuine reforms could also help create the conditions necessary for free and fair national elections in April 2010."

The Mbeki Panel further recommends the establishment of a truth and reconciliation commission, which could make an important contribution to broader accountability for crimes in Darfur. Such a process can contribute to societal healing by thorough documentation of victims' experiences and crimes committed.

The AU and the ICC

In July, the AU called for its member states not to cooperate with the arrest and surrender of al-Bashir to the ICC because the Security Council had not responded to an AU call to defer the case. Article 16 of the Rome Statute, which created the ICC, permits the Security Council to grant deferrals for renewable one-year periods to maintain peace and security. Under the Rome Statute, efforts to strengthen national prosecutions for crimes falling under the jurisdiction of the court are not a basis for an article 16 deferral.

As South Africa and Botswana have pointed out, the July AU decision goes against the obligations of African states that are parties to the Rome Statute. All states parties are obliged to cooperate with the ICC irrespective of such summit decisions. The AU decision was also inconsistent with article 4 of its own Constitutive Act, which rejects impunity.

With the arrest warrant for President al-Bashir, some government officials in Africa have suggested that the ICC is unfairly targeting African leaders. However, all ICC situations to date were either voluntarily referred by African governments or, in the situation of Darfur, by the UN Security Council.

At the same time, the application of international justice has been uneven, with officials from powerful states less vulnerable to prosecution. The solution is to work to extend - not curtail- accountability, including by promoting wider ratification of the Rome Statute. Otherwise, victims will be denied redress and a culture of accountability frustrated, contrary to the AU's Constitutive Act, Human Rights Watch said.

Human Rights Watch urges states to work for prosecutions of serious crimes that violate international law wherever they occur and to extend the reach of international courts. Human Rights Watch, other international organizations, and civil society across Africa have urged African states to cooperate with the ICC in the arrest and surrender of al-Bashir.

"African civil society has repeatedly called for African states to cooperate with the ICC in the arrest of President al-Bashir," said Gagnon. "African states should heed this call."

Background on National Efforts to Prosecute Serious Crimes in Darfur

On June 7, 2005, the day after the ICC prosecutor announced he was opening investigations into the events in Darfur, the Sudanese authorities established the Special Criminal Court on the Events in Darfur (SCCED). However, by June 2006 authorities had brought only 13 cases before these courts, all involving low-ranking individuals accused of minor offenses such as theft. In the sole case relating to a large-scale attack on civilians, the court merely convicted the accused of theft that occurred after the attack.

In August 2008, Sudan's justice minister, Abdelbasit Sabdarat, appointed a special prosecutor and legal advisers in each of Darfur's three states to investigate crimes from 2003 onward. In October 2008, Sudanese justice officials announced that the special prosecutor had completed an investigation into allegations against Ali Kosheib, a militia commander who is wanted by the ICC for war crimes and crimes against humanity. In February 2009, the special prosecutor for Darfur stated that three men, including Kosheib, had been charged in a case related to events in Deleig, Mukjar, Bandas, and Garsila. However, there has since been no indication of any progress in this or any other case, and the special prosecutor has complained publicly that he has had difficulty accessing and interviewing victims.

The ICC's Darfur Cases

To date, the ICC has issued arrest warrants for three suspects for alleged war crimes and crimes against humanity committed in Darfur: President al-Bashir; Ahmad Harun, the former Minister of State of the Interior and the former Minister of Humanitarian Affairs; and Ali Kushayb, an alleged commander of the Janjaweed militia. The ICC also has issued a summons to appear for a Sudanese rebel leader, Bahar Idriss Abu Garda, for alleged war crimes committed as part of an attack on an African Union peacekeeping base, Haskanita. Applications for arrest warrants or summons to appear for two other rebel commanders - whose names have not been disclosed - who are believed to have also participated in the Haskanita attack are under review.

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