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 opinions expressed here are those of the author(s) and do not necessarily reflect the position of the Save Darfur Coalition.
Tags: African Union Panel on Darfur, Darfur, ICC, ICC / Justice, Mbeki Panel, Omar al-Bashir, Sudan
