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 20^th, 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.

Moreno Ocampo’s visit to Uganda at a time the African Union had resolved not to enforce an ICC arrest warrant issued against Bashir has rekindled the debate of whether Africa needs the Hague based International Criminal Court in order to deliver justice to thousands of victims of War Crimes and Crimes against Humanity.  The African Union has instituted a committee to advise it on the best way out of this conundrum in the meantime resolving not to enforce the warrant until this committee has come out with a report. To put the debate in context, the AU decision came days before the United States President Barrack Obama urged Africans to work towards solving the continent’s problems themselves. Barrack added that the United States supports African regional bodies such as the African Union, ECOWAS and others in a bid to peacefully resolve conflicts and bring development to the citizens of the continent. Friday, a day before Obama’s historic speech in Ghana, while launching a Refugee Law Project Working Paper on Traditional Justice systems at Hotel Imperial Royale, Principal Judge Justice James Ogoola urged researchers and authors to write books and treatises on African Traditional Justice Systems such that we can develop a system he referred to as “lex ugandana”. Such events occurring at a time we have several suspects of war crimes and crimes against humanity at large including Joseph Kony, Omar el Bashir on a list of numerous others call for serious review of the current international criminal law system as symbolized by the ICC vis a vis the role of regional blocks such as the African Union in delivering justice for war crimes and crimes against humanity. The Bashir case particularly exposes the clash and struggle of systems at an international stage to deliver justice to civilian victims of war crimes and crimes against humanity.

Those that argue that Bashir should step in The Hague to face the music say that Africa has no solution to the victims of the brunt of the janjaweed militia in Darfur. That the African Union is simply shielding Bashir from facing justice, suggesting that the only place that Bashir and his alleged victims in Darfur can receive justice is The Hague. Despite the fact that I believe that Bashir should undergo a criminal trial in regard to the war in Darfur, the position that only the ICC can offer this justice is disturbing.  If we Africans keep looking elsewhere for solutions for our problems, when will we ever develop? Is Africa so doomed to failure that we can not offer justice to those who inhabit the mother continent? What is more disagreeable is the superfluous argument that the fact that existing African judicial systems have not handled cases of such magnitude before means that Africa is inept as a continent and we have to look elsewhere in order to obtain justice.

Being an ardent enthusiast of justice and fairness for those who commit War Crimes, Crimes against Humanity and Genocide, I am interested in seeing Bashir answer all charges that are being brought against him, but I disagree with the pro ICC group on the Court and system that should try him. This is the time that the whole world should give Africa an opportunity to try its own and deliver justice to the wretched of the earth that have suffered the brunt of massive violations of International Human Rights and Humanitarian Laws in Darfur. That Africa has not done this before and so cannot pull it off is as misleading as deceptive. Every system has a history which tells of evolution from a practically non existent system to a fully grown and proficient one.

The ICC was nothing but words in the period leading to 1998, now it has judges, prosecutors and a registry just like all courts. By 1900 and during the period that Hitler and his clique were slaughtering civilians in what became the Second World War, no institution existed to try crimes of the magnitude that characterised the Holocaust, and then the Nuremberg and Tokyo International Military Tribunals were born. Now we can refer to a whole lot of jurisprudence on International Humanitarian and Criminal Law as a result of this innovation.

Next door in Rwanda, before common sense went on leave to allow close to a million of Tutsis and moderate Hutus to face axes and pangas alongside rape and mutilation at the hands of their kinsmen the Hutus in a bid to exterminate them, none, neither in Rwanda or elsewhere considered “Gacaca” a traditional system originally used in the nineteenth century to solve simple disputes in the Rwandan society a potential system of trying genocide crimes. As we discovered while on a law study tour of Rwanda that Uganda Law Students’ Society carried out last month, Gacaca is the biggest success story of transitional justice in the world today. Among the different officials we met, from the Coordinator of the National Service of Gacaca Jurisdictions, the Minister of Justice/Attorney General Mr. Tharcisse Karugarama, the President of the Rwandan High Court Mr. Busingye Johnston to the Speaker of the Rwandan Chamber of Deputies, the Gacaca system boasts of impressive statistics of genocide cases to the tune of 80% of the original cases disposed of in slightly more than a decade.

Interestingly, I had visited the International Criminal Tribunal for Rwanda as part of the ICRC International Moot Court Competition in Arusha in November 2008, where we were told by the spokesperson of the Court that on average one trial at the ICTR takes eight years to be completed. He revealed that as at November, 2008 the ICTR had only managed to complete a handful of cases. The ICTR is struggling to dispose off less than one hundred cases at a cost of more than one billion US dollars over a period of over one decade. Certainly, I would choose Gacaca over the ICTR if you asked me which system has been effective helpful in delivering justice to the victims of the 1994 genocide in Rwanda.

Accordingly, with the manifest success story of Gacaca in Rwanda, as distinguished from the ICTR system, why can’t we give the African Union the benefit of doubt that it can create a Pan African system that will deliver justice in the Bashir Darfur case? Some analysts have erroneously predicted that no African leader has the courage to arrest Bashir citing the fact that most of them have been implicated in one war or another that resembles the Darfur orgy, and fear creating a precedent of prosecution.  In short, that in Africa, we simply cannot deliver justice to Darfurians, because we are all culpable. This creates the twisted image that ICC justice is the only justice Darfurians ought to have.

But wait a bit, let us focus on Liberia and Sierra Leone to test the veracity of this cynicism; Wasn’t it Nigeria, previously known as an ally of Mr Taylor,  that finally arrested him when the call for justice was made in regard to accusations of War Crimes and Crimes against Humanity in Sierra Leone? Hasn’t Rwanda which has neither signed nor ratified the Rome Statute of the ICC arrested Laurent Nkunda, one of the indictees of the ICC on charges of War Crimes and Crimes against Humanity allegedly committed in the Democratic Republic of Congo?

Virtue certainly prevails over Vice. Bashir is suspected of having committed War Crimes, Crimes against Humanity and Genocide in Darfur and there is a prima facie case in my view, but the ICC is not the only avenue to achieve justice for both Bashir and the vulnerable civilians of Darfur.  The Sudanese national judicial system is no fit substitute for the ICC, but the African Union can create that alternative. We have seen justice done in Rwanda, not through the UN mandated ICTR but a traditional system that was formalised and integrated in the constitution, and Sierra Leone is largely succeeding not because of the UN cooperation alone but the fact that the Special Court of Sierra Leone is locally based thus enjoys the trust of the victims that want the justice to be done. Darfurians will certainly not see justice as a fruit of a Hague based trial, though to those who want to play class monitor in a class of mass slayers may consider Bashir’s trial at The Hague justice to them. And in all this melodrama, Africa may just lose another opportunity. Leave Bashir to the African Union. We can handle him. Yes we can and we will.