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EXCLUSIVE: AU Mbeki panel makes implicit endorsement of ICC prosecutions in Darfur


By Wasil Ali

October 22, 2009 (WASHINGTON) – The African Union (AU) panel that was tasked with balancing peace and accountability in Darfur has made an implicit endorsement of the International Criminal Court (ICC) prosecutions despite unfavorable disposition to the issue by African leaders and also called for a wide range of changes to Sudanese law and criminal law system.

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Former South Africa’s President Thabo Mbeki (AP)

The eight member panel headed by the former South African president Thabo Mbeki completed their recommendations and submitted it earlier this month but its contents have not been disclosed pending an AU Peace and Security meeting in Nigeria next week to discuss the report.

The AU formed the commission few weeks before the ICC was expected issued an arrest warrant for Sudanese president Omer Hassan Al-Bashir on seven counts of war crimes and crimes against humanity in Darfur.

The Nigerian government invited Bashir to the special session and promised not to arrest him.

A source told the Agence France Presse (AFP) that Bashir "still considering the invitation, afraid we may turn him in, which will not happen,"

"Hand him over to who when he is invited by the AU?" he added.

Asked to confirm if the Sudanese president was invited, Nigerian Foreign Minister Ojo Maduekwe said he was not going "to speculate on who is invited and who is not".

Many critics and rebel groups have accused the panel of seeking to circumvent the work of the ICC particularly after the AU issued a resolution last July instructing its members not to cooperate with the Hague tribunal in apprehending Bashir.

But Mbeki appeared to distance himself from the position of the pan-African body in his report seen by Sudan Tribune.

“The ICC is a ‘court of last resort’ as well as of limited practical capacity: it can only target a few people for prosecution. Indeed, conscious of its limited resources, the Prosecutor of the ICC has adopted a policy of focusing only on those few who he believes bear the greatest responsibility for the most serious crimes that have been committed in each situation” the report says.

“This 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…. justice from the ICC, exclusively, would therefore leave impunity for the vast majority of offenders in Darfur, including virtually all direct perpetrators of the offences”.

The findings of the mission indicate an approach where the ICC work would now be limited to the six individuals already charged by the court with an alternative mechanism to try the remaining individuals.

However, the report hinted that Sudan could still challenge the admissibility of the cases against its officials at the ICC if it were to prosecute them internally.

“The principle of complementarity under the Rome Statute in any event gives precedence to national systems, even when a situation has been referred by the Security Council. This means that the ICC is obliged to take into consideration the fact that a State has taken or is taking effective justice measures to deal with relevant crimes”.

Last year the Sudanese government appointed a special prosecutor Nimr Ibrahim Mohamed to look in the Darfur abuses committed since 2003 and promised to bring Ali Kushayb, an alleged Janjaweed militia leader wanted by the ICC, before court.

However, to date Kushayb has not been prosecuted and an attempt by the special prosecutor to probe the governor of South Kordofan Ahmed Haroun, also wanted by the ICC, was blocked by the justice minister.

The panel suggested that the Sudanese judicial system on its own is incapable of carrying out credible prosecutions in Darfur and calling for further changes within the legal system.

“Currently, the criminal justice response to Darfur is ineffective and confusing and has also failed to obtain the confidence of the people of Darfur. It will therefore require changes to be introduced within the Sudanese legal system to provide effective accountability for the different levels of criminal participation”.

A key recommendation in the report yet widely anticipated is the establishment of a hybrid court to try the perpetrators of crimes in the war torn region.

The commission called for a “hybrid Criminal Court which shall exercise original and appellate jurisdiction over individuals who appear to bear particular responsibility for the gravest crimes committed during the conflict in Darfur, and to be constituted by judges of Sudanese and other nationalities”.

It further outlined the modalities for the formation its formation saying that it would consist of a “Hybrid Criminal Chamber, which should be composed of panels of highly qualified and suitable individuals of Sudanese and other nationalities”.

“The formula for nominating non?Sudanese nationals and for constituting the judicial panels of the Hybrid Court, as well as for the deployment of prosecutorial and investigations support, would be proposed by the AU”.

The panel said that the criteria for selection to the court should include “proven professional competence in criminal law and procedure, and experience in the function (judicial, prosecutorial, investigative, or administrative) for which the appointment is made, capacity to adapt to the legal system of Sudan, and a fair gender balance. Candidates for nomination should not be restricted to African individuals”.

“In the selection of candidates for judges, observers or senior personnel, the AU should seek the advice of internationally respected judges or jurists or international organizations, and should publish its consultation process”.

The Sudanese government has vehemently rejected proposals by the Arab league and other Sudanese leaders including ex-Prime minister Al-Sadiq Al-Mahdi saying its judiciary is capable of handling the cases.

Fathi Khalil who leads the Sudanese bar association told the Hague based Institute for War and Peace Reporting (IWPR) last month that any such step is in violation of the country’s laws.

“The Sudanese constitution and laws reject the participation of foreign judges in Sudanese courts,” Khalil said.

“We have an independent and fair judicial system and so there is no need for hybrid courts,” he added.

But Mbeki’s panel suggested that Sudanese laws does not explicitly prohibits non-Sudanese from being part of the judiciary.

“In order to facilitate the establishment of a Hybrid Court, the Government of Sudan should take immediate steps to introduce legislation to allow legally qualified non?nationals to serve on the judiciary of Sudan (c.f. section 23, National Judiciary Act, 1986). In this connection, the Panel notes that the Constitution of Sudan does not expressly prohibit non- Sudanese nationals from being appointed to the judiciary of Sudan, and would not therefore need to be amended”.

Sudan in the past has emphasized that it will comply with the recommendations of the panel and implement it. However it is not clear what Khartoum’s position would be on the hybrid courts.

The commission also called for removing “legal and de facto immunities and other legal impediments to prosecutions, such as periods of limitation” as well as adopting measures for dealing with sexual violence and protecting witnesses.

The AU and Sudan would receive regular reports on the progress related to the hybrid court.

The UN Security Council referred the situation in Darfur to the ICC at the recommendation of a UN commission of inquiry headed by former President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) Italian Antonio Cassese.

The commission concluded that the government did not pursue a policy of genocide in the Darfur region but that Khartoum and government-sponsored Arab militias known as the Janjaweed engaged in “widespread and systematic” abuse that may constitute crimes against humanity.

They further said that Sudanese judiciary is “is unable or unwilling” to prosecute those crimes and thus recommended referring the situation to the ICC.

However, Sudan has rejected jurisdiction of the ICC and haled cooperation with the court in February 2007.


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  • 23 October 2009 03:26, by marial mach aduot mach

    Good work by the panel. I personally like the implication of Bashir and his government base on huaman right issues. criminals belong to where they belong not as the leaders.

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    • 23 October 2009 04:48, by Time1


      I would think that Sudan government sould immediately reform its juditiary system and work in colaboration with UA appointed team to bringing the genociders to justice, as Mbeki said "ICC is the last resot" that is if the Sudanese court fail to bring action, then ICC will be the last resort to bring NCP crimes to justice.

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    • 23 October 2009 07:02, by Garang Arok

      No more dollar deals between khartoum and Mr.Mbeki after al salah Gosh replacement.
      Now the truth is visible to the commons.

      What sounds funny is ,khartoum trusts ICC on other issues like oil areas,halleyab and etc,but seems not to trust on al bashir’ indictment,what snse does it make here,no sense rather than a revelation of systematic and institutionalised procedural mess that has rockeed the country for thousands of years.

      ICC is the only international body to clean this mess up.

      repondre message

    • 19 January 2013 12:17, by chalbhtho

      This was an excellent post. It has some valuable info on this topic. Thank you for compiling it into an easy to read and well written post.

      repondre message

  • 23 October 2009 04:03, by Dinka Dominated SPLA

    IT is too exact [MR AWULDIT Mach] this criminal called UMar must go to HELL man.
    death to him and Equatorian people for collaborate with L R A

    repondre message

    • 23 October 2009 05:41, by Rambang Deng

      Dinka Dominated SPLA or Jiengeweed;

      El Bashir used Janjaweed against the people of Darfur and Kiir is using Dinka armed Jiengeweed against other Southerners. The only different is that Kiir is not indicted yet while El Bashir already learned his doomed fate.

      Those who are killing people in Equatorians are not LRA, but Dinka Jiengeweed with full blessings of Dinka corrupt incompetent leadership in Juba.

      No thanks

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  • 23 October 2009 04:07, by oshay

    Wasil Ali is kaffir. I don’t care really what happens to Bashir, but to hand him over to Europeans to try US!!! you must out of your mind. I’d rather wait for God’s punishment than give those hypocrites the pleasure. I’m not the type of person to argue that because they don’t prosecute Israel so shouldn’t Bashir, a criminal is a criminal and justice will catch up with them regardless but there is in no way I’m going to hand over any Muslim, criminal or otherwise, to a continent that mastered genocide and ethnic cleansing.

    Oh and to all those who think I’m Arab, sorry to disappoint, I’m still an African, I have more pride in that the fake ass Sudanese who actually think they’re Arabs. Sudan is the land of the Blacks and I’m black and this is my country.

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    • 23 October 2009 05:19, by Jeremiah Mach


      Why do you call Wasil Ali Kaffir? What is the connection of Bashir’s indictment with his religious believes fool? no doubt in my mind that you are an Arab Islamist in the North of the Sudan.

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      • 23 October 2009 05:40, by oshay

        He is a Kaffir anyone who seeks to try Muslims under laws that are not from Islam is a Kaffir. And remmeber I already said I’m not an Arab,I’m an African, I have no reason to fear to say I’m an Arab but I’m not. What has the so called Arab culture ever done for Sudan anyway, only brought war and misery.

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        • 23 October 2009 07:36, by Sudan virus

          Oshay also those who referred Haliad boarder issue between Sudan and Egpty to the ICC are Kaffir.

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  • 23 October 2009 04:40, by Time1

    I have no doubt in the AU, let us all stay fingers cross and see how they will handle this problem, then we can judge them after.

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  • 23 October 2009 05:37, by Samson Shawel Ambaye

    God be with UNSC ICC and AU. Bashir is angel of death and must be arrested.

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  • 23 October 2009 07:39, by Critic_Ngueny

    Shame on Rambang Deng,

    He likes barking like a dog when he has nothing to say.Dinkas were there before you and your illiterate parents.My community has done wonderful things in Southern Sudan and ready to do more now.Rats play when a cat is away,Anyway,barking at your masters is also a part of live.

    We have to turn deaf ears to your day today nonsense because you are still in our control.Dinkas are the solution to all the problems in Sudan ask me why?

    Critic_Ngueny from Bor town

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    • 23 October 2009 07:49, by Rambang Deng

      How come coward Jiengeweed be a solution to anything?

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      • 23 October 2009 09:32, by telfajbago

        Iam seeing people wasting their energy and time responding to security hirelings like oshay;which pains me a lot;I do not think somebody like oshy who is know claiming Africanism,did useful education deserve responding ,beyond his street education,because his comments always resemble his dirty asshole.

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        • 23 October 2009 09:38, by telfajbago

          Mbeki has eaten ElBashir’S oil money and got investment opportunities in Sudan,but he can not give the regime the benefit of doubt about facing the justice.because there are big players in the game to whom Mebki was teenager.

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      • 23 October 2009 09:36, by Biliu

        When things are quite obvious, local or regional intervention to hinder the ICC progress would be consider as an act of betrayal for those murdered in Darfur by Bashir and his supporters, hybrid courts is nothing but a rescuing attempt for Bashir and his top officials… AU.. Handover Bashir to the ICC and close the case.

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  • 23 October 2009 10:21, by Critic_Ngueny

    Dear ram.Deng

    You are mad and if not you will run amok.Why do you call your Masters coward yet they have liberated you from Arabs?What I know so far you are meaning the opposite part of it.

    Critic_Ngueny from Bor town

    repondre message

    • 23 October 2009 13:45, by Francis

      Dear Brothers&sisters

      I would like to remind some of us who doesn’t differentiate between the enemy and brotherhood/sisterhood, let be mindful instead of mindless because I did my assessment about the tribal issues in Southern however it turned out to be most of the educated folks are the one responsible for tribal issues.

      Am not a critic today but whether you are Dinka or Shilluk, Anguak, Murle, Mondari or Nuer, don’t think of harming yourself or your brothers & sisters, just take harmony as your goal for a moment.

      And may God bless, the work of the panel for endorsement of ICC prosecution of Omir.

      repondre message

    • 23 October 2009 22:01, by Rambang Deng

      How could run away cowards who were chased from their homelands by Nuers be liberators?

      Please, deceive Equatorians and others who don’t know you Jiengeweed. We Nuers know your cruel coward DNA inside and out and ready to send you back to Equatoria again.

      repondre message

  • 24 October 2009 10:04, by Darfur Daily News

    Mbeki panel need not to beat around the bush. He should make explicit endorsement of ICC prosecutions in Darfur.

    No sympathy should be granted to the criminals who committed henious crimes of genocide, war crimes and crimes against humanity among whom el_bashir is the prime figure.

    repondre message

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