Will the Mbeki Report Implicitly Endorse the ICC? (Updated)

by Kevin Jon Heller

I will remain agnostic until I can read the actual report, but a new article in the Sudan Tribune seems encouraging:

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.

[snip]

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.

If that is indeed the Mbeki Report’s conclusion, it’s a very intelligent one.  The ICC does not have the resources to prosecute more than a small handful of individuals in any situation; alternative justice mechanisms will have to address lower-level perpetrators.  The question is what those alternative mechanisms would be.  According to the Sudan Tribune, the Mbeki Report is not particularly convinced that Sudan’s own court system is up to the task — much less able to divest the ICC of jurisdiction over Bashir and the others pursuant to the principle of complementarity:

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”.

So what’s the solution for the lower-level perpetrators?  Apparently, the Mbeki Report suggests the creation of a hybrid tribunal:

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”.

[snip]

“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 article notes that “Sudan in the past has emphasized that it will comply with the recommendations of the panel and implement it.”  If the article is correct — and to reiterate, that remains to be seen — something tells me we are in for some world-class backtracking.

Stay tuned.

UPDATE: Well, that didn’t take long.  The Sudan Tribune is now reporting that the Sudanese government “has reservations on parts of the report and reject other [parts],” including its criticisms of the Sudanese judiciary.  I presume that the government also rejects any part of the report that calls for government officials, particularly Bashir, to be held accountable for their crimes.

The new article recounts how “[t]he Sudanese presidential adviser Ghazi Salah Al-Deen told the Qatar based Al-Jazeera TV in an interview last July that Khartoum “trusts the intentions of the panel and its evaluation because it is African and not stemming from a colonialist mentality”.  Does this mean that the the Sudanese government now believes that panel is not actually African and does have a colonialist mentality?

http://opiniojuris.org/2009/10/22/will-the-mbeki-report-implicitly-endorse-the-icc/

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