Brains Like a Shoe

First posted at Save Darfur’s blog today…

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.’

First posted at Save Darfur…

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.