This week, I have been writing about the African Union Panel on Darfur’s recent report delivered to and endorsed by the AU Peace and Security Council.  Having summarized the recommendations that Save Darfur submitted to the panel regarding the peace process, I will now summarize our recommendations for steps that should be taken to address the challenge of justice and the suppression of impunity arising from the conflict in Darfur.

In our submission, we highlighted the AU’s stated will in its founding documents to suppress impunity and ensure justice for mass human rights violations and atrocities.  As such, we urged the AU that “when faced with a choice between the rights of African people and the interests of African states and their leaders, the African Union should stand on the side of the people.”

To make the case for why justice was paramount to tackling the crisis in Darfur, we pointed to recent Sudanese history:

Parties negotiating the Comprehensive Peace Agreement (CPA) to end the decades-long war between North and South Sudan decided to leave accountability mechanisms out of the accord.  Less than five years later, implementation of the CPA has fallen far behind schedule, violence has increased on border regions, and regional and international leaders have been forced to devote significant energy and resources to upholding the CPA and preventing a return to civil war.  Similarly, the Darfur Peace Agreement (DPA) failed to address the need to end impunity and ensure justice for the victims of the conflict that has raged in Darfur since 2003. This deficiency of the agreement was one major reason for its death on arrival – why it was unable to gain the confidence of the non-signatory rebel movements and much of Darfuri civil society, particularly community leaders in the IDP camps.

Noting the challenges of securing justice for the victims of grave crimes like genocide, while at the same time securing peace, we recommended a two-layered solution.

[F]irst, the pursuit of international justice at the level of the International Criminal Court to end impunity for those most responsible for war crimes and crimes against humanity; and second, the construction or reform of local, national and regional justice and reconciliation processes to address atrocity crimes in the future…But any genuine progress in ending impunity and ensuring justice at the national level in Sudan is unlikely at present, and current regional mechanisms are unable to provide justice for crimes in Darfur.   As such, the AU and international community must positively engage with the ICC while reiterating commitments to support the development of genuine accountability processes at national and regional levels.

Disputing the charges that the ICC unfairly targeted Sudan, we reminded the panel that the case of Darfur was referred to the ICC by the UN Security Council due to the absence of capable alternative mechanisms to deal with the grave crimes in Darfur, including any at the national level in Sudan or at regional levels:

• Failed to initiate criminal justice proceedings against individuals responsible for or accused of crimes against humanity or war crimes in Darfur.
• Refused to arrest and turn over those individuals charged by the ICC with crimes in Darfur.
• Refused to heed advice from its friends and allies – such as the League of Arab States – on compromise measures designed to satisfy the need for justice.
• Prevented justice for rape victims in Darfur, despite rampant sexual violence against women and girls in the region.

Specifically we recommended:

• Supporting the Darfur case before the ICC, as it currently provides the only genuine option for holding accountable those most responsible for crimes against humanity in Darfur.
• Positive engagement with the ICC.  The AU and all states concerned about peace and justice have the opportunity through positive engagement to enhance the ability of the ICC to play a role in achieving the goals enshrined in the AU Charter.
• Ensuring justice in a future Darfur peace agreement. The Darfur peace process should clearly address the need to end impunity and ensure justice for the victims. Mechanisms must include both criminal justice proceedings to hold perpetrators accountable and complementary restorative justice processes that aid victims and survivors of atrocities and their families and communities.

While the AUPD regrettably did not unequivocally support the Darfur cases currently before the ICC, its report serves as a damning indictment of the Sudanese government’s handling of justice issues in Darfur.  The report highlights a number of the failings summarized above and states “[T]he Panel must…recognise that the victims of the conflict simply have no faith that the justice system of Sudan will be deployed fairly to address the crimes they have suffered.”

The report also notes that ICC’s “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.”  It is this reasoning that leads the panel to endorse a Hybrid Court for Darfur “as one component of the architecture for confronting Darfur’s past.”  In essence, the AUPD argues that the ICC should be allowed to function, but more justice is better than less.

We believe, like Human Rights Watch and other human rights organizations, that this hybrid court system could theoretically work as a mechanism for accountability complementary to the ICC.  This proposal, however,  cannot be a substitute for or an alternative to the current ICC proceedings.  While some Darfuris, including rebel groups, may rightly presume that some African leaders wish to replace the ICC with the proposed hybrid court system, the Mbeki report does not specifically state this intention.  At this time, there is no evidence to suggest that this concern may be realized.  Instead, as with the Obama administration’s Sudan policy review, the proof will be in the implementation of the AU’s hybrid court recommendations and its continuing work to promote peace, justice and reconciliation for the Darfuri people.

The African Union Panel on Darfur (AUPD) chaired by former South African President Thabo Mbeki released its much-anticipated report and recommendations to African leaders on Thursday.   As mandated, the panel submitted specific “recommendations on how best to effectively and comprehensively address the issues of accountability and combating impunity, on the one hand, and peace, healing and reconciliation, on the other” (read the full report). Most reports in the press focused on the panel’s recommendation of hybrid courts to “investigate, prosecute and adjudicate the war and other crimes committed during the Darfur conflict.”

In addition though, the Mbeki panel’s recommendations also covered:

the process for reaching a Global Political Agreement (GPA); the important issues of justice and reconciliation; the promotion of dialogue among Darfurians; mobilising Sudan’s neighbours; the Sudan General Elections and the Southern Sudan Referendum; measures for the implementation of the agreements; support for the AU‐UN mediation process; and the role of UNAMID and the African Union in promoting and consolidating peace in Darfur.

As part of their seven month investigation, the AUPD consulted with a range of actors, including those in the advocacy community.  At the panel’s request, the Save Darfur Coalition submitted recommendations concerning ‘a comprehensive and inclusive Darfur peace agreement’; ‘the challenge of justice and the suppression of impunity arising from the conflict in Darfur’; and ‘the challenge of reconciliation and healing arising from the conflict in Darfur.’  In subsequent blog posts, I will compare the AUPD’s report with our recommendations.  With that said, we believe strongly that peace, justice and reconciliation are intertwined and cannot be dealt with in isolation from each other.

Overall, the AUPD report generally matches the solutions to Darfur and Sudan’s other interlocking crises that the Save Darfur Coalition has urged the U.S. Government and the international community to support through aggressive diplomacy and mediation.   On the specific question of hybrid courts, such courts could work as a mechanism for accountability complementary to the International Criminal Court (ICC).  It is important to underscore that the panel did not suggest that these courts would replace the ongoing proceedings of the ICC.  Rather, it observed that the ICC necessarily will only deal with those perpetrators most responsible for crimes in Darfur; an additional mechanism is necessary to ensure there is not impunity for lower level perpetrators.  The ICC chief prosecutor Luis Moreno-Ocampo concurred in his reaction to the AUPD: “The primary responsibility lies in national states…The ICC is just doing a piece — prosecuting the most responsible — but then there are other efforts needed.”

At its core, though, the report acknowledges that political transformation is necessary for peace in Darfur and all of Sudan.  The report reads:

Characterised by the inequitable distribution of wealth and power, this imbalance has fomented tensions and conflicts in Sudan and given rise to the situation that the Panel has been called upon to investigate. The Panel believes that all the various overlapping layers of conflict must be addressed, but above all that the fundamental problem of Sudan must be confronted if lasting peace for Darfur is to be realised. The Panel defines the fundamental problem of Sudan as “The Crisis of Sudan as manifested in Darfur.”

For this change to happen, the report also specifically suggests that Bashir’s National Congress Party (NCP) must make a strategic decision to open up political space:

To enable the people of Sudan to approach the next important phase of their history as one nation, without other distractions, there is an urgent need to secure a definitive peace settlement for Darfur before the 2010 General Elections and to ensure nationwide legal and security conditions to allow political activity to be freely conducted.

While these recommendations strike at the root of the political problem, the NCP seems nowhere close to implementing the National Election Act of 2008 as urged by the report – nor implementing the key elements of the 2005 Interim Constitution that guarantee important political rights.  Put another way, the NCP continues to resist fulfilling these obligations to open political space agreed to both in the spirit and text of the Comprehensive Peace Agreement.  Thecurrent dispute within parliament between the NCP and the SPLM and northern opposition parties over a revised National Security Act and other issues of freedom of association demonstrates that Bashir and NCP party leaders believe they can keep their tight grip on power by playing the same games they have for the last two decades.

One can even read such an NCP strategy in its reaction to the AUPD report.  Second Vice President Taha offered a classic example of the long-practiced NCP delaying tactic of appearing to say “yes” when the real meaning is “no”: “The report listed several recommendations worthy of consideration and is no doubt worthy of our great tribute due to the efforts made by the African Union” (translation from article in Al Ray Al Aam).  He and other NCP officials have already expressed their deep misgivings about the hybrid courts. The Mbeki recommendations and other proposals for peacemaking in Sudan must be complemented with a significant set of incentives and pressures designed to achieve behavioral change by the NCP and structural reforms agreed to by all of Sudan’s competing stakeholders.

We are also concerned that the extension of the AUPD’s mandate beyond last week’s report constitutes another “initiative” that provides an alternative forum for the NCP to talk, talk, talk without doing anything.  To avoid this possibility, Mbeki and the other panelists should immediately commit their valuable services to support the efforts of AU/UN Chief Mediator Djibril Bassole.  He has praised the work of the panel, but stated that the recommendations should be implemented through the Darfur peace talks that are set to resume in mid-November in Doha.  The AUPD members’ involvement in the negotiations, as well as active support and leadership from U.S. Special Envoy Scott Gration and the other special envoys, could result in a major step forward in these stagnant and fragile talks.  If there is a lack of coordination, however, the Sudanese government will inevitably play the various actors off against one another.

Tomorrow I will have more to write on this subject.  In the first of three blogs, I will describe our recommendations to the AUPD concerning ‘what can and should be done urgently to conclude a comprehensive and inclusive Darfur peace agreement.’