Home | News    Friday 30 October 2009

Sudan ‘politely’ rejects hybrid court proposal for Darfur, SPLM & rebels critical

October 29, 2009 (WASHINGTON) – The Sudanese government today formally expressed reservations on the proposal for a hybrid court in Darfur made by the African Union (AU) high level earlier this month.

The Sudanese delegation headed by 2nd Vice president Ali Osman Taha addressed the Peace and Security Council (PSC) session in Abuja, Nigeria that focused mainly on the Darfur report compiled by a commission headed by former South African president Thabo Mbeki.

“What is mentioned in the report on a new justice mechanism in the form of hybrid courts requires satisfying and accurate definition on the extent of conformity of the principle of establishing it with the constitution and the principle of independent judiciary, jurisdiction and determining its workings and specifics. This requires close cooperation between us and the mechanism that we recommend the AU to establish,” Taha said.

“On the other hand we must remember that establishing these courts is important to us as Africans because it establishes a precedence to be used in the future in other cases in Africa,” he added.

Taha also stressed that Sudan has established special courts and appointed a special prosecutor saying that the Sudanese law and competence of judiciary "provides the necessary framework to achieve justice".

Mbeki’s report has stated that “the criminal justice response to Darfur is ineffective and confusing and has also failed to obtain the confidence of the people of Darfur”.

The panel also countered an argument frequently made by Khartoum on its laws not allowing participation of non-Sudanese in the judiciary saying that there is no explicit verbiage to that effect but acknowledged that changes will still need to be made.

“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”.

The AU PSC adopted the report as a roadmap for solution in Darfur but it is not clear if their statement incorporated specific mechanisms or benchmarks for implementation particularly in light of Sudan’s objections.

The summit set up another team of experts — including Mbeki, former president of Burundi Pierre Nkuruziza and ex-leader of Nigeria Abdul salami Abu-Bakr — to help in the implementation of the recommendations. The team has a one year mandate.

The details of the PSC declaration have not been made available but Nigerian media reported that it underlined that “the search for justice should be pursued in a way that does not impede or jeopardize the promotion of peace, the PSC reiterated its strong condemnation of the gross violations of human rights in Darfur and the AU’s unflinching commitment to combating impunity, in line with the relevant provisions of the Constitutive Act”.

The Nigerian president Umar Musa Yar’Adua, noted that the recommendation for a Hybrid Court, “was not a vote of no confidence” in the Sudanese criminal justice system

It was reported that the PSC communiqué noted the position of the AU in condemning impunity and the fact that many members of the AU were not opposed to the work of the ICC.

It also reiterated that AU had never requested for a cancelling the ICC warrant but only a deferral.

Speaking to reporters today Mbeki said that Sudan “accepted” the hybrid court but would need further discussions with the AU especially where it concerned the hybrid court.

“They will look at what the Sudanese constitution allows with regards to that because this will be a precedence that has not been tried on the African continent before,” he said.

“It is necessary to act urgently. There is recognition of the need to act, bearing in mind that there are deadlines of that kind like 2010," the former South African leader stressed.

In an address to the leaders Mbeki said, “We believe the time to act is now.”

“Exceptional measures must be put in place to assure the people of Darfur that justice will be done, taking into account the objective reality that a number of them have little confidence in the independence and impartiality of their national criminal justice system,” he added.

Bloomberg reported that the AU reiterated its call for suspending the International Criminal Court (ICC) for Sudanese president Omer Hassan Al-Bashir under Article 16 of the Rome Statute “in the interest of peace, justice and reconciliation,”.

The formation of the high level panel last February was driven mainly by the imminent issuance of the warrant. The AU has criticized the indictment on the grounds that it jeopardizes peace prospects and later decided to halt cooperation with the ICC in arresting Bashir even for its members who are signatory to the Rome Statute.

Mbeki’s report did not call for a deferral of Bashir’s warrant and even appeared to make an implicit endorsement of the ICC prosecutions but cautioned that the Hague based tribunal cannot try all cases before it.

“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”.

Darfur rebel groups were quick to condemn what they described as complicity of the AU with regards to the crisis in Sudan’s western region.

“The actions of the AU since the crisis erupted are a blatant violation of its 2004 constitutive act requiring it to intervene in cases of massive human rights violations” the spokesperson of Justice and Equality Movement (JEM) Ahmed Hussein told Sudan Tribune.

“We have not seen any firm stance from the AU to confront the [Sudanese] government. All we see is a club in which dictators and war crimes perpetrators are afforded impunity and diplomatic shield as we have seen in the case of Bashir,” he added.

The JEM official questioned the “seriousness” of the AU in “doing what is right” in the situations before it.

“So now this [Mbeki] panel concluded that there were no prosecutions to those who committed the atrocities in Darfur. Taha goes on to repeat statements on the ability and willingness of its judiciary to do the trials themselves brushing aside what Mbeki have concluded. This is a broken record. Does the AU have any courage to confront Khartoum and force it to accept the report fully? I don’t think so,” he said.

Hussein lashed out at AU commissioner Jean Ping saying that the latter is a “clear example of the workings of the AU”.

“He goes out of his way to consistently defend Bashir perhaps more so than Sudanese officials. Does he not realize his responsibility as a representative to the African people and not the government [of Sudan]? We want to see Ping have similar candidness in pressing Khartoum to implement the AU report” he added.

Abdel-Wahid Mohamed Al-Nur leader of Sudan Liberation Movement (SLM) urged African leaders to intervene “to stop the genocide in Darfur”.

“Daily we have cases of new displacements in Darfur, in the hundreds. We have never seen the AU take good positions on this. This is unacceptable. When will this body ever act in the interests of innocent civilians instead of protecting corrupt and merciless leaders? If this is the way they [AU] want to run things so be it,” Al-Nur said.

The SLM chief also dismissed talks of hybrid courts to carry out the Darfur prosecutions.

“The ICC is the only way to achieve justice. The report was right; there is no will to bring justice to our people. They [Khartoum] deny the crimes by day and night and so how will you expect them to agree to setting up new courts? This is totally unrealistic” Al-Nur said.

In a surprising development the junior partner in Sudan’s Government of National Unity (GoNU) dismissed the hybrid court proposal as unrealistic.

“The Sudan People’s Liberation Movement the SPLM does not buy the so-called AU African leaders report. Justice cannot be compromised this is to our conviction as SPLM and SPLM had a clear and plain stance on Darfur,” Yien Matthew Chol, the SPLM’s spokesman told Voice of America.

“The African wise leaders did not by all means address the reality of Darfuri problem… therefore we see their attempt as compromising the issue rather than addressing the root causes of the problem and war in Darfur. As such it will be very difficult for the SPLM to buy such a strange…idea,” Chol said.

The SPLM official questioned the effectiveness of the hybrid court and its modalities.

"What is it that they are trying to do? What is the hybrid tribunal court? Can they guarantee justice in Sudan?" he asked.

“Who in Sudan or any of these African countries will catch President Al-Bashir and take him to the court whether it is a local court or an international court? This is the question to be answered,” he said.

The remarks will likely anger the ruling National Congress Party (NCP) which has sought domestic support from local political powers against the ICC.

In the past the ex-Southern rebel group warned of the impact of the Bashir arrest warrant on the Comprehensive Peace Agreement (CPA) signed with the NCP in 2005.

The New York-based Human Rights Watch (HRW) while welcoming the hybrid court proposal cautioned that it should not be a replacement to the ICC.

“Sudan has been obstructing justice for crimes committed in Darfur for years,” said Richard Dicker, International Justice Program director at Human Rights Watch. “The proposed hybrid court and national law reforms should not delay the ICC cases for one minute. If and when a hybrid court gets up and running, there will be plenty of additional cases to fill its docket.”

The ICC issued arrest warrants for Sudanese president Omer Hassan Al-Bashir and former Sudanese state minister for humanitarian affairs and governor of South Kordofan Ahmed Haroun and militia leader Ali Kushayb.