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.’

(Matt Cardy/Getty Images)

On this Halloween weekend, I have been catching up with some reading in between watching the Gators take down the Bulldogs and partaking in some of the weekend festivities.

Here are a few items of interest and a few interesting pieces I have collected over the last week:

• In yesterday’s post, I mentioned the great coverage that the J Street conference received. Before the conference, a former AIPAC and Israeli embassy official Lenny Ben-David questioned “Why do so many Arabs contribute to an organization that purports to be ‘pro-Israel?’” A friend of mine, Rebecca Abou-Chedid, wrote an exceptional response in Foreign Policy to the distasteful accusations that her donation, because she is of Lebanese descent, “clearly indicates that…[her] dollars must be intended to advance some pernicious anti-Israel agenda — and that J Street must be the vehicle for those aims.”

• Ken Silverstein has ‘Six Questions for Desmond Travers on the Goldstone Report.’ Travers was one of four members on the UN fact finding mission that produced the report. A retired Colonel of the Army of the Irish Defence Forces, he discusses the criticism and reaction to the report.

• Concerning another issue of international justice, the Confirmation Hearing of Bahr Idriss Abu Garda, a Darfuri rebel leader, continued this week at the International Criminal Court in The Hague. He is being tried for attacking an African Union peacekeeping base in 2007.  His defense lawyer is making  the case that the AU base by that point in time had lost its protected status under international humanitarian law and had become a legitimate military target. Bec Hamilton is also following the case.

• Michael Kevane writes a post taking on the claim by J. Stephen Morrison and Jennifer G. Cooke at CSIS that ”Lack of consensus within the [Obama] administration has confused potential partners who have for some time seen the United States policy as hostage to zealous domestic pressures (emphasis added).”  It’s always amazing to me how much clout some people think that the Save Darfur Coalition and other Darfur organizations and activists have in the creation of U.S. policy.

• Fighting continues in Yemen, as The New York Times highlighted this week.  The paper also ran a great story this morning on the country’s unsustainable addiction to qat. The blog Waq al-Waq notes the better late than never acknowledgement by the U.S. State Department of the Yemeni government’s conflict with Houthi rebels in north Yemen.   A Yemeni humanitarian aid worker in an Emirati paper wrote a moving essay about his experience over the last few months: “I never thought I would be trapped in the place I call home, but all I can do is try in my own way to help those who have lost everything and pray that peace comes sooner rather than later.”

• Lastly, I continue to follow the rumblings surrounding Egyptian presidential elections in 2011.  The big questions, of course, are (first) will Hosni Mubarak run again;  and (second),  if not, will his son Gamal take his place.  This week, the noted Egyptian historian and philosopher Mohammed Hassanein Haikel expressed the common opinion of most Egyptians whom I know –  Gamal is “unfit” to be the next president.  He added, “They tell us we have elections, but is it a coincidence that the president’s son is portrayed as the most worthy to be the leader of Egypt?” Laura Rozen at Politico and others commented about intriguing statements from both Amr Moussa, the current head of the Arab League, and Mohamed El Baradei of the IAEA regarding their interests in running in 2011. Al Ahram Weekly (an English language state-owned newspaper) though ran a “news” story revealing that most ordinary Egyptians aren’t concerned about rumors or even who there next president will be.

Are African countries that are state parties to the Rome Statue of the International Criminal Court playing a shell game with Sudanese President Omar al-Bashir?  Since the issuance of his arrest warrant by the ICC in March 2009, Bashir has repeatedly received invitations from African leaders to attend summits and conferences that eventually result in the dispatching of non-fugitives of international justice to serve in Bashir’s stead.  Were these recent invitations from countries like Uganda and Nigeria in good faith?  Or have there been pre-arranged deals cut that a public invitation would be extended with the understanding that Bashir would not accept them?

Last week provides the most recent example of a possibly well-choreographed diplomatic dance.  On Thursday, Amnesty International broke the news that the African Union had invited Sudanese president Omar al-Bashir to participate in the AU Peace and Security Council meetings on Darfur in Abuja, Nigeria.  They urged the AU to rescind the invitation and, if Bashir made the visit, the Nigerian government “to arrest President Omar al Bashir and hand him over to the ICC.”  After a day of headlines and ambivalent statements from Nigerian and AU officials about their commitments to fulfill obligations under international law, the Sudanese government announced on Friday that Second Vice President Ali Osman Taha would lead Sudan’s delegation to the AU meetings.

But it’s not just international or Western human rights groups that are offended by the invitations issued by African capitals.  Last week, an uproar on the matter occurred for the second time this year in Uganda before Bashir turned down an invitation to attend the Special Summit of Heads of State and Government on Refugees, Returnees and Internally Displaced Persons in Africa.  The Sudanese government eventually sent only two junior officials in a pattern of events that closely mirrored another Ugandan invitation in July.  At that time, a senior Ugandan foreign affairs official told Reuters:

“The invitation still stands … (but) we will handle it through diplomatic channels to avoid embarrassment and inconvenience to anybody…It’s a codeword for an agreement that President Bashir delegates another senior cabinet-ranked person. That was agreed.”

Likewise, the Nigerian based NEXT online news portal quoted “reliable diplomatic sources” in Abuja as saying that the government does not want to break ranks with the AU yet seeks to fulfill international obligation:

“My reasoning is that [the] government is merely inviting Sudan as a country with a veiled message that someone higher in the Sudanese government but not Bashir would be the welcomed guest,” said the source.

What would be the motivations behind such deals? By extending the invitations to Bashir, these governments can play to a vociferous current in pan-African politics that rejects the ICC proceedings on Darfur and case against Bashir.  In July, the AU approved a resolution to abstain from cooperation with the ICC over extraditing Bashir.  Many at the time complained that such a resolution was pushed unfairly by Libyan leader Colonel Muamar Gaddafi. Yet by going along with the resolution, many African leaders have placed themselves in a position where in order to reflect African solidarity and preserve the legitimacy of an AU decision purportedly made on behalf of the entire continent, they must make decisions regarding Bashir that may lack support amongst their own constituencies. By reaching pre-arranged deals with Bashir that he will not take up their invitations, these countries could be craftily avoiding the full weight of international pressure calling for their enforcement of international law.

In the cases of Uganda and Nigeria, what is ‘good’ for the AU does not seem to translate necessarily into what is in the national interest, as expressed by local civil society and media.  For instance, Nigerian human rights groups have said that they would protest any visit by Bashir. “The invitation is an insensitive display by the president of Nigeria,” said Innocent Chukwuma, head of the CLEEN Foundation.

As for President Bashir and the National Congress Party (NCP), the invitations from other African heads of state send the public message that the Sudanese president still retains legitimacy in the eyes of his continental counterparts.  It helps, furthermore, Bashir and the NCP make the case domestically that the president can still carry out the full function of his responsibilities – a matter questioned by some within the NCP since the issuance of the arrest warrants.  In fact, Bashir and the party’s chief interlocutor with the international community, Ghazi Salah Al-Deen, in a moment of honesty acknowledged last month that the court’s decision is “limiting the movement of the president…He has to study of course any particular (travel plan) on its own merits.”

All of this diplomacy is testing whether a head of state can effectively perform his functions while wanted on an outstanding arrest warrant. Are these countries really ignoring the decision of the ICC, or are they diplomatically circumventing it in order to avoid acting in what may be their own national interest?  Countries are parties to the ICC because they have determined, independently of the AU, that its presence serves a warranted and legitimate role in the promotion and protection of international law. Some, including Uganda, have openly acknowledged the potential role of the Court in addressing their own crises.

Even if these countries know that Bashir will pass on their invitations, Nigeria and Uganda degrade the force of public condemnation and isolation that the ICC arrest warrants have had on President Bashir and the NCP.  Of course, the stances of these countries are better than non-ICC members like Egypt, Ethiopia and Eritrea that have welcomed and hosted Bashir.  Yet these countries should be clear about their commitments to fulfill international law and follow the lead of South Africa and Botswana. If it turns out that they are intentionally playing such a shell game with Bashir, they must realize that they are directly weakening the efforts of those within Sudan fighting to make Bashir’s arrest warrant – and inability to perform his position – an important issue in the upcoming national elections.

While I admittedly have not had time to track all of the attacks and counterattacks, what I find interesting – and disappointing – is the way that this vitriolic debate immediately began to resemble the uproar that ensued after the International Criminal Court in March issued an arrest warrant for Sudanese President Omar al-Bashir on charges of war crimes and crimes against humanity committed in Darfur.

Daniel Levy of the New American Foundation (a former Israeli negotiator) has written an extensive and incisive analysis of the post-Goldstone report reactions:

Most of the pushback and the vituperative attacks have come from the Israeli side, and indeed while comprehensive, the preponderance of the report does deal with Israel’s actions. This is no coincidence. The overwhelming majority of causalities and destruction were incurred on the Palestinian side (which is not to detract from the fact that all loss is tragic). The report is forthright in acknowledging the power dynamic at work…This relationship of power is crucial – too many Israelis and Palestinians have effectively dehumanised the other, but the practical policy and operational consequences of that dehumanisation are very different for an occupying power as opposed to an occupied people. Since the report’s publication, and in the context of its pushback, Israel has bemoaned a different power dynamic, namely that investigations such as these are not conducted when it comes to, for instance, American transgressions in Iraq or Afghanistan.

Indeed, it is not a fair world: the Palestinians are to Israel as Israel is to America. Ironically, it is international human rights law and humanitarian law, the essence of this report, that exists to partially redress this unfairness.

The official Israeli response has followed a familiar if disappointingly ritualistic pattern. The emphasis has been on pre-emptively discrediting the report’s findings rather than substantively addressing them. Israel’s key claim – that the mission had concluded its findings in advance of its investigation – would appear to be true, only in reverse: namely that the Israeli government had decided on its response to the report in advance of its publication.

Official Israel refused to co-operate with the mission, refused to meet with its members or grant them official entry into Israel (or to the West Bank or Gaza via Israel), and had even banned the media from being in Gaza at the time of Operation Cast Lead. Israeli officials have marched in lock-step in their assertive rejection of the report, from the avuncular figure of Shimon Peres right down to the pugnacious ex-bouncer foreign minister, Avigdor Lieberman (lambasting the report from, of all places, Serbia – no sense of irony was detected).

In drawing comparisons with the reaction of the Sudanese government to the ICC indictment (and of many opposed to the indictment), let’s start at the end of this section of his analysis and work our way up.  First, the Sudanese government also refused to cooperate with ICC Prosecutor Luis Moreno-Ocampo – and then challenged his understanding of the facts by stating that Ocampo had never visited the scene of the crime.  Second, the Sudanese government has never responded substantively to the charges against it – instead, it has since 2005 attempted to discredit the ICC by questioning the motives of the prosecutor and the countries and NGOs in support of the proceedings.  Third, like the Israeli government this week, the Sudanese government has argued that international justice is “unfair” – specifically that the ICC only targets African countries and ignores the human rights violations of more powerful countries, namely the United States and Israel.

The Goldstone report and its recommendation that international venues of justice take up the Gaza case, if the Israeli and Palestinian authorities themselves continue to refuse to do so, actually weakens this last line of argument from Bashir and the National Congress Party. On this point, Goldstone himself in the New York Times defended the role of the international community in investigating egregious crimes like those committed in Darfur and Gaza – and challenged western governments to be even-handed in their responses to both:

Absent credible local investigations, the international community has a role to play. If justice for civilian victims cannot be obtained through local authorities, then foreign governments must act…Pursuing justice in this case [Gaza] is essential because no state or armed group should be above the law. Western governments in particular face a challenge because they have pushed for accountability in places like Darfur, but now must do the same with Israel, an ally and a democratic state.

Finally, regarding the Goldstone report, Levy also discusses “the tension between the demands of seeking justice now and of influencing the course of future events.”

I anticipate that the constellation of political forces will mean that this does not reach international criminal proceedings, and I have no desire to see Israelis appearing before such tribunals. But what this report does, and this is one of its most significant contributions, is to point a finger at a failure and in fact an illegitimacy to the overall policy that guided Israel’s actions in Gaza. The report finds that the manifestations of human rights violations in Gaza were the structural byproduct of policies that encouraged the targeting of civilians – namely, an expansive definition of the so-called infrastructure of terrorism and an intentional price-tag of disproportionality.

In the case of Sudan, the debate over “peace versus justice” is the “tension” between now and the future – that is whether you can pursue both goals at the same time or, if by pursuing justice before the attainment of peace, one actually forsakes the possibility of peace, at least, in the present.   As we wait for another round of Darfur negotiations to begin, this question for Sudanese and the international community remains unresolved.

Yet disregarding whether Bashir ever ends up at The Hague, the arrest warrants issued by the three ICC judges for President Bashir, using Levy’s words, similarly “point[s] a finger at a failure and in fact an illegitimacy to the overall policy that guided” Sudan’s actions in Darfur.   Indeed, the Sudanese government’s deplorable mishandling of Darfur is summarized by the seven charges handed down by the ICC judges against Bashir: intentionally directing attacks against a civilian population, pillage as a war crime, and murder, extermination, forcible transfer, torture and rape as crimes against humanity.

In the coming days and weeks, I will have more to write on this subject – including looking at the U.S. reaction to the Goldstone report compared to its evolving position concerning the ICC proceedings on Darfur, how the Goldstone report places defenders of both Khartoum’s actions in Darfur and Tel Aviv’s execution of the Gaza war in rather difficult positions, and how the rebels in Darfur and Hamas have approached these mechanisms of international justice. Stay tuned.