Perusing through the big stories of 2009 and looking forward to 2010 as regards international justice brings a memory of missed opportunities on the part of the African Union (AU) in regard to Darfur. Perhaps, the biggest story of 2009 in International Justice Circles, the Darfur situation created a unique opportunity for the AU to operationalise Article 4(h) of the AU’s Constitutive Act providing for the continental body’s right to intervene in a member state in respect of grave circumstances of war crimes, crimes against humanity and genocide.
In March, 2009, the AU set up the High-Level Panel on Darfur chaired by South African former President, Mr. Mbeki, christened the Mbeki Panel to explore ways to secure peace, justice, and reconciliation in Darfur. Raising hopes that the AU was on the eve of creating a uniquely Pan African system of criminal justice, the AU suspended cooperation with the ICC in regard to the Darfur situation pending the Mbeki Panel’s report.
Expectations for a distinctive African export to international criminal justice on my part were so high that I penned an article in August (Published in the Observer newspaper on 20th, August 2009) expressing hope that the AU could indeed deliver justice to victims of war crimes; crimes against humanity and a possible genocide in Darfur. After all, as Mbeki himself said immediately after handing over the report, from President Bashir on down, it is agreed that justice must be done and must be seen to be done. So, if everyone sees the need for justice, the question zeroes down to who is fit to do the justice.
In my August article, I argued that the AU could craft a fresh regional system to punish war crimes, crimes against humanity and genocide committed on the territory of Africa. I based this view on the fact that we have seen systems spring up from scratch to deliver justice for war crimes, crimes against humanity and genocide from Gacaca in Rwanda to the ICC. I was optimistic that Mbeki’s Panel would propose such a system with the hope that such a system would answer concerns of the ICC being colonial without compromising the need for justice.
My optimism however never paid off. Mbeki and his panel instead proposed a hybrid court for Darfur with AU and Sudanese participation. As Human Rights Watch noted, the Mbeki Panel succinctly endorsed the ICC arrest warrants. Several analysts have argued that the Mbeki Report in proposing reforms for the Sudanese judicial system and a Truth and Reconciliation commission factored in the role of Complementarity which is a unique import of the Rome Statute that creates the ICC. The Mbeki Report thus has failed to achieve what I had hoped would be a thrilling contribution of the AU to the whole realm of international justice.
As warned by some commentators on my August article, the current AU might not have been a body worth the expectation for some innovation and novelty in regard to international justice. Their lack of originality and ingenuity has denied the region plagued by a number of conflicts loaded with violations of International Humanitarian and Human Rights Law, a unique satisfactory Pan African system to try Bashir of his alleged transgressions. This leaves concerns of justice untackled, thus the ICC, with all its imperfections becomes the best option in sight as the Mbeki hybrid court is as unviable as it sounds, not when Khartoum has objected to foreign judges sitting on the bench of “the proposed court”. Further, if indeed it is true as it already sounds that the AU is seeking to circumvent the indictment and find an exit for the Sudanese president from prosecution, there is no reason whatsoever why Bashir should not stand in the dock that has seen the likes of Bemba, Lubanga, Katanga, Chui among others.
As if Mbeki had not betrayed Africans enough, he and his Panel reconstituted to implement their own report may be proving the skeptics right through their recent actions in the Sudan. As Alex De Waal, an adviser to the panel writes on his blog, ‘Making Sense of Darfur’ examples abound of the intense skepticism as regards the Panel’s impartiality on the part of IDP’s who have accused the Panel of being a cover up to protect Bashir from ICC. De Waal tells of a man who stood up and said that seven members of his family were killed. He then asked; “How should I feel if Thabo Mbeki says that Omar al Bashir should not go to court?” That President Mbeki responded challenging the man to disclose where he got the information that he (Mbeki) said that President Bashir should not go to court. De Waal writes that the man responded that it is well known.
The comments of some leaders of rebel movements in Darfur are more revealing of what the victims or some section of the victims feel about the whole AU process. The Justice and Equality Movement (JEM) spokesperson Ahmed Hussein Adam was quoted in The Sudan Tribune as having said that; “This is a serious setback and very unfortunate position taken by Mbeki on the issue of justice… He is now reneging on implementing the recommendations that he came up with right after meeting with Bashir. The Sudanese government is manipulating him as it always does with the AU… When will the Africans say enough is enough? When will they adhere to their Constitutive Act?”
Mr. Abdel-Wahid Al-Nur of the Sudan Liberation Movement (SLM note the SPLM) is also quoted to have said that he is not surprised with the remarks coming out of Mbeki recently. He went on to allege that; “Before he chaired the panel Mbeki was on Bashir’s side and against prosecuting him so what would you really expect? Even the AU which appointed him has never taken a firm stance on the genocide that took place against our people in Darfur. They just want to help Sudanese officials avoid prosecution… The ICC is the only credible venue to try those who committed the heinous crimes and massacres against the people of Darfur. Sudan now clearly said they don’t want the hybrid court so the AU must be brave enough and support the ICC. They saw firsthand how the [Sudanese] regime does not want justice”.
As the SLM leader summed up, the AU has wasted a golden opportunity to come clean on the issue of justice for the African people killed in Darfur and who may be killed in future in any other part of Africa. This however does not in anyway mean that I have lost or should lose all hope in a Pan African regional system of criminal justice; this should lead us to a realization that the current generation of decision makers and movers at the AU are not the type to dare make a positive mark on the international criminal justice plane. As I said in August 2009, Virtue will undoubtedly triumph over Vice.
This post appeared in The New Vision in mid January 2010.