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Darfur: Mbeki Presentation to UNSC: CICC Advisory; CICC Members’

21 Dec 2009

Dear All,

Today, 21 December 2009 at 10 a.m. (EST), former South African President Thabo Mbeki will present the report of the African Union High Level Panel on Darfur (AUPD) to the United Nations Security Council. The report outlines a set of recommendations aiming to achieve justice, peace and stability in Darfur, Sudan.

Please find below the latest media advisory issued by the Coalition for the International Criminal Court (CICC) on the Mbeki report (I); as well as related CICC Members’ media statements (II).

Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

Best regards,
CICC Secretariat
www.coalitionfortheicc.org

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I. CICC MEDIA ADVISORY

“African Union Panel on Darfur Recognizes Centrality of Justice in Darfur,” Media Advisory, Coalition for the International Criminal Court (CICC), 18 December 2009, http://coalitionfortheicc.org/documents/AUPD_Report_Media_Advisory_18_Dec_2009_FINAL.pdf

“AFRICAN UNION PANEL ON DARFUR RECOGNIZES CENTRALITY OF JUSTICE IN DARFUR
Global Coalition Says the African Union Should Support the ICC in its Fight to Bring Justice to the Region

WHAT: On 21st December 2009, former South African President Thabo Mbeki will address the United Nations Security Council at the UN Headquarters at 10 a.m.. Mr. Mbeki will present the report of the African Union High Level Panel on Darfur (AUPD) which outlines a set of recommendations aiming to achieve justice, peace and stability in Darfur, Sudan.

WHO: Former South African President, Thabo Mbeki, is the chair of the AUPD Panel which was established on 21 July 2008 by the African Union.

WHY: The AUPD Panel was established to consider and make recommendations on how to expedite and harmonize the processes of peace, reconciliation and justice in Darfur. The report covers a range of issues including the peace process and initiatives to achieve justice in Darfur.

On 29 October 2009, the African Union Peace and Security Council reviewed and endorsed the recommendations contained in the AUPD report. Mr. Mbeki will now present the report to the UN Security Council for consideration.

In its report, the AUPD Panel recognizes that justice and peace must go hand in hand and recommends the creation of a hybrid court “supported by dedicated prosecution, investigation and registry functions” – which would be consistent with the push for justice embodied in the Rome Statute, the ICC founding treaty.

In addition, the Panel acknowledges that the International Criminal Court “complements the national judicial systems” and emphasizes in its reports that “the role of international justice more generally should be on the agenda of the Global Political Agreement”.

COMMENTS AND BACKGROUND:

William R. Pace, Convenor of the Coalition for the ICC, stated “Justice is an indispensable component of peace and we insist that the Sudanese government demonstrates to the international community that it will hold perpetrators of war crimes and crimes against humanity in Darfur accountable.”

“The spirit of these recommendations strengthen the role of the ICC as a central one, compatible with article 4(h) of the Constitutive Act of the AU and part of a comprehensive solution for the situation in Darfur including national and regional efforts to end impunity and achieve peace and stability,” explained Stephen Lamony, Outreach Liaison for Africa and Situations Adviser at the Coalition for the ICC.” […]

II. CICC MEMBERS’ MEDIA STATEMENTS

“UN: Back AU Call for Darfur Prosecutions,” Press Release, HRW, 18 December 2009,
http://www.hrw.org/en/news/2009/12/18/un-back-au-call-darfur-prosecutions

“United Nations Security Council members should express strong support for an African Union panel's call for justice for victims in Darfur given the consistent failure by the Sudanese government to hold perpetrators of serious crimes accountable, Human Rights Watch said today.

On December 21, 2009, the Security Council will be briefed on the report of the African Union High-Level Panel on Darfur. The panel, led by the former South African president Thabo Mbeki, was established in March to explore ways to secure peace, justice, and reconciliation in Darfur. In October, the panel issued a comprehensive 125-page report.
‘The panel rightly lays the near total absence of justice for horrific crimes committed in Darfur at Khartoum's feet,’ said Richard Dicker, International Justice Program director at Human Rights Watch. ‘We look to President Mbeki and the Security Council to strongly back the panel's call for prosecutions of serious crimes.’

In its report, the panel analyzes the Darfur crisis, discusses the potential for negotiating a political settlement, and suggests initiatives aimed at achieving justice and reconciliation.
The report details inaction by the Sudanese government to hold perpetrators of crimes in Darfur to account and indicates that justice for these crimes should be a priority. The report says that ‘the perpetrators of the serious crimes in Darfur have overwhelmingly remained unpunished’ and the Sudanese government cannot ‘ignore its own duty to deal with the crimes.’

The panel recommends a ‘hybrid court’ for Darfur, including Sudanese judges and judges appointed by the African Union, along with a truth and reconciliation commission. It says that Sudan needs to strengthen its domestic criminal justice system and remove immunities under domestic law for state officials who violate human rights. The panel does not take a position on whether the proposed hybrid court or national efforts should seek to try Darfur cases before the International Criminal Court (ICC).

Human Rights Watch said that the establishment of a hybrid court is likely to face major obstacles, including the lack of political will that has undercut domestic efforts for Sudan to hold perpetrators accountable for crimes committed in Darfur.

‘Khartoum has been stonewalling on justice for years,’ Dicker said. ‘The proposed hybrid court and national law reforms could potentially help, but should not derail the ICC cases for one minute.’

The ICC has been investigating and prosecuting crimes in Darfur since 2005, when the Security Council referred Darfur to the ICC under Resolution 1593. The ICC currently has cases against four individuals suspected of war crimes and crimes against humanity committed in Darfur. Among them is President Omar al-Bashir, for whom the ICC issued an arrest warrant on March 4.

Sudan has not cooperated with the ICC, despite its obligation to do so under Resolution 1593. The Mbeki panel found that persons displaced by the Darfur conflict ‘welcomed the prospect of ICC prosecutions as the only appropriate mechanism for dealing with the situation they have suffered in Darfur, and expressed strong support for the work of the ICC,’ which the Sudanese government ‘continues to reject.’

The African Union has called for the Security Council to defer the ICC's case against al-Bashir. Article 16 of the Rome Statute, which created the ICC, permits the Security Council to grant deferrals for renewable one-year periods under the council's authority to maintain peace and security. However, progress on domestic accountability efforts is not a basis for an article 16 deferral under the Rome Statute, Human Rights Watch said.

‘The Security Council should support the Mbeki panel's call for legal reform in Sudan as a way to improve accountability for human rights abuses,’ 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."
In October, Human Rights Watch issued a report on human rights abuses and repression across Sudan that includes wider recommendations to the Security Council, including establishing an independent monitoring mission and imposing targeted sanctions.

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. 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 gaining access to and interviewing victims.

The ICC's Darfur Cases

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 has also 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 - who are believed to have also participated in the Haskanita attack and whose names have not been disclosed - are under review...”

ii. “ICTJ Calls on Security Council to Support Justice and Reparations in Darfur,” Press Release, ICTJ, 21 December 2009, http://www.ictj.org/en/news/press/release/3337.html

“The United Nations Security Council should support the call by the African Union High-Level Panel on Darfur for establishing a “hybrid court,” reforming Sudan domestic justice mechanisms, compensating the victims of the conflict fairly and establishing a truth and reconciliation commission, the International Center for Transitional Justice (ICTJ) said today.

The Security Council will examine the panel’s recommendations today.

‘The Security Council should call on the government of Sudan to make its position clear on the comprehensive approach to peace, justice and reconciliation recommended by the AU Panel,’ said Hanny Megally, ICTJ’s Interim President. ‘The ball is now in the government’s court,’ he added, ‘it should take measures to end impunity for the atrocious crimes that took place in Darfur since the beginning of the conflict in 2003; fully compensate the victims for the harms and losses they continue to suffer; and encourage a return to social peace among the people of Darfur.’

BACKGROUND

At its 142nd meeting on Jul. 21, 2008, the African Union (AU) Peace and Security Council called for the formation of an African Union High Level Panel on Darfur (AUPD), mandated to “submit recommendations to the Council on how best the issues of accountability and combating impunity, on the one hand, and reconciliation and healing, on the other, could be effectively and comprehensively addressed” in Sudan.

Chaired by former South African president Thabo Mbeki, the panel of eminent Africans began its work in March 2009 and made four trips to Sudan. During each mission, the panelists consulted with a wide variety of Darfurian victims, civil society members, as well as key stakeholders in Khartoum, Juba, and in the broader international community to probe the root causes of, and potential solutions to the conflict that has plagued Darfur for years.

On Oct. 8, 2009, the AUPD submitted its final report, Darfur: The Quest for Peace, Justice and Reconciliation, to the AU Peace and Security Council. Within that document, the panel affirmed that “three principal pillars…of peace, justice and reconciliation in Darfur are interconnected, mutually interdependent and equally desirable,” and “taking concerted action to deliver justice and reconciliation would itself strengthen progress towards the realization and consolidation of peace.”

The International Center for Transitional Justice (ICTJ) helps countries confronting legacies of mass abuses in pursuing these three pillars. We support the AUPD’s view that peace, justice and reconciliation are mutually reinforcing and dynamic processes that Sudan must pursue in tandem at this critical juncture in its troubled history. The following brief aims to offer technical advice and best practice to the AUPD’s findings by drawing on ICTJ’s accumulated expertise in diverse transitional societies since 2001. In particular, we address three fundamental recommendations of the panel’s report.

The AUPD’s Proposals and ICTJ’s Recommendations

AUPD Recommendation 1: “The establishment of a Hybrid Court to deal particularly with the most serious crimes, to be constituted by Sudanese and non-Sudanese judges and senior legal support staff, the latter two groups to be nominated by the African Union.” ICTJ advises that the proposed hybrid court ideally should be constituted as a new, independent organization established by an international treaty between the African Union and the Sudanese government. The court should be entirely independent and protected from political interference, should guarantee fair trials and adequate witness protection, and should not be subject to any constitutional or other judicial review in Sudan.

AUPD Recommendation 2: “[The] establishment of a Truth, Justice and Reconciliation Commission (TJRC) to promote truth telling and appropriate acts of reconciliation and to grant pardons as considered suitable.” While the region’s deeply rooted traditional conflict resolution and tribal reconciliation mechanisms may be usefully employed within aspects of a truth commission’s work, such mechanisms do not have the capacity or the tools to deal with this type of new conflict. More robust mechanisms are required to cover the entire region of Darfur.

AUPD Recommendation 3: “Measures should be taken to pay compensation and to make restitution and other forms of reparations, for individual and communal losses and harm incurred during the conflict.” Those most responsible should bear the heaviest burden in providing reparations. The responsible parties should use their resources to provide reparations, especially for the most vulnerable victims and the internally displaced. Civil society organizations and representatives of victims’ groups must be actively involved in designing and implementing the reparations program.

A series of ICTJ briefs released today corresponds with each of the recommendations above. It provides the technical standards that any holistic transitional justice program should follow and offers insights that apply to the very particular circumstances of Darfur’s crisis. ICTJ asserts that peace, justice and reconciliation in Darfur require that the rights of Darfurians are respected and upheld, that grave abuses of human rights are redressed, that Sudan’s prevailing culture of impunity is eradicated; and that perpetrators are held accountable through a robust, credible system of justice. ...”

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CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.

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