The Surprising Mbeki Report (Updated)

by Kevin Jon Heller

I have to admit, when I first heard about the Mbeki Panel, I was skeptical.  I assumed that the Panel’s report would be a typical apologia for the Sudanese government’s crimes, criticizing the ICC and defending the African Union’s promise not to surrender Bashir to the Court.

It looks like I owe Mbeki an apology.  The recommendation section of the report is now available — and Bashir, the Sudanese government, and the AU are going to be very disappointed.  As the Sudan Tribune indicated a couple of days ago, the report does indeed implicitly support the ICC’s efforts to bring Bashir, Haroun, and Kushayb to justice.  Here is what the report says:

The International Criminal Court is a court of last resort, which complements the national judicial systems. It is also a court of limited capacity. This means that even when deploying its full resources, it can only deal with a few individuals out of any situation of which it is seized. It follows that where widespread crimes have been committed, the overwhelming majority of potential criminal cases must be dealt with by the national system. This is simply a reflection of the functional limitations of the ICC. It is important that all stakeholders should realize this, and therefore focus on the vital importance of strengthening national legal systems. The principle of complementarity under the Rome Statute in any event gives precedence to national systems, even when a situation has been referred by the Security Council. This means that the ICC is obliged to take into consideration the fact that a State has taken or is taking effective justice measures to deal with relevant crimes. Any credible measures adopted in a national system would also be of interest to the Security Council in reaching any decisions with respect to the situation in Darfur and the Sudan more generally. The role of international justice more generally should be on the agenda of the Global Political Agreement.

Notice what is absent from this paragraph of the recommendations: any reference to, much less approval of, the AU’s promise not to surrender Bashir.  The section of the recommendations on the AU’s role in the Sudan is also silent concerning that promise. That’s shocking — and very encouraging.  The report gets it exactly right: the ICC should prosecute Bashir, Haroun, and Kushayb, while other accountability mechanisms, such as a hybrid tribunal and and a TRC, should deal with the crimes of lower-level perpetrators.

The report’s reference to complementarity in the recommendations is also interesting. The report correctly reminds the Sudanese government that it can divest the ICC of jurisdiction by pursuing “credible measures” to address Bashir’s crimes committed.  But it also recognizes that doing so will require fundamental — and highly unlikely — reforms to the Sudanese criminal-justice system.  Here is the report’s laundry list of needed reforms:

For the delivery of criminal justice for crimes in Darfur, the Government should take steps to provide:

a) An adequate body of substantive law, consistent with the Constitution, and which reflects international crimes;

b) For the removal of legal and de facto immunities and other legal impediments to prosecutions, such as periods of limitation;

c) An independent and credible investigations component;

d) Guarantees of all fair trial rights, including adequate legal representation and, where necessary, legal aid for suspects and accused persons;

e) Enhanced procedural and evidential provisions to enable the effective and timely delivery of justice, as well as the participation of witnesses and victims in judicial processes;

f) Special measures, including legislation, for dealing with rape and other sexual crimes at all stages of the criminal justice process;

g) Measures to protect witnesses and victims participating in proceedings;

h) The appointment of a sufficient number of qualified and experienced personnel to undertake judicial and investigative functions, and the provision of training and capacity building for justice personnel;

i) Procedures and rules for co‐ordination between the different courts and functions within the criminal justice system, as well as between institutions of the criminal justice system and the other institutions and mechanisms envisaged by the JRRD;

j) Adequate resources for delivering timely and meaningful justice.

Another interesting aspect of the report’s recommendations is its approach to traditional Sudanese reconciliation mechanisms.  It endorses those mechanisms, as it should — but it also rightly insists that traditional justice is inadequate for high-level perpetrators like Bashir, Haroun, and Kushayb:

Alongside the formal prosecutions, the JRRD requires the identification and recognition of the most appropriate traditional mechanisms of justice to deal with those perpetrators who appear to bear responsibility for crimes other than the most serious violations.

All in all, it’s a tremendous report.  The likelihood that the Sudanese government will accept the Mbeki Panel’s recommendations is, of course, precisely zero.  Regardless, the report will make it far more difficult for Bashir apologists to dismiss the ICC’s involvement in Darfur as reflecting a “colonial mentality.”  That in itself is significant progress.

UPDATE: I have edited the text above to clarify that these quotes are taken from the recommendations section of the Mbeki report.  The report as whole, which is available here, is much longer.  The body of the report does specifically mention the AU’s promise to Bashir — but it in no way defends that promise.  Indeed, reading that section of the report reinforces the conclusion that the Mbeki Panel does not oppose the ICC’s pursuit of Bashir, Haroun, and Kushayb.

http://opiniojuris.org/2009/10/25/the-surprising-mbeki-report/

5 Responses

  1. I suspect you are far from alone in owing that apology. I do too. Who knew that losing his job would be so good for him?

  2. “The report gets it exactly right: the ICC should prosecute Bashir, Haroun, and Kushayb, while other accountability mechanisms [...] should deal with the crimes of lower-level perpetrators.”

    This seems to be jumping to conclusions somewhat – where exactly in the recommendations does it say this?  The conclusion, rather, seems to be that Sudan should establish mechanisms for accountability which, if done properly, would serve to displace ICC involvement in Darfur.  No differentiation is made between Al-Bashir et al and any other suspects - it’s a blanket claim.  However what it does say, implicitly, is that unless Sudan takes adequate measures domestically, then yes, ICC should step in.

    It seems that the report is attempting to tread a fine political line that panders to neither the ICC nor Al-Bashir. The result is that the report seems remarkably impartial and (I fully agree with you on this) the fact that legitimate responses to the ICC are suggested, rather than any kind of outright dismissal, does indeed mark significant progress.

  3. Mark,

    As I said, I think the support is implicit — the result, as you quite rightly note, of the panel’s need to tread a fine political line.  But I think this statement is particularly important: “It follows that where widespread crimes have been committed, the overwhelming majority of potential criminal cases must be dealt with by the national system.”  This seems to acknowledge that the ICC will be prosecuting some of the criminal cases that arise out of Darfur (i.e., the ones it’s already pursuing).  Yes, in theory the Sudan could divest the ICC of its jurisdiction over even those few cases — but, as the report makes clear, the likelihood of ithe government making the necessary reforms is zero, which the panel had to recognize.

    I also think that the report’s silence concerning the AU’s promise of impunity to Bashir is revealing.  That promise has been, of course, the highest-profile act to emerge from African states about the ICC.  Had the panel been comfortable with the promise, I think it would have said so — or would have at least acknowledged it!

  4. Well, it’s a reasonable interpretation.  But if that is the case it’s disappointing to not see some language like, at least ”cooperation with the ICC” in the list of recommendations on justice and impunity. 

    Ah well, probably just wishful thinking on my part; the silence on the matter seems, on reflection, as good as could have been expected!

  5. The report gets it exactly right: the ICC should prosecute Bashir, Haroun, and Kushayb, while other accountability mechanisms, such as a hybrid tribunal and and a TRC, should deal with the crimes of lower-level perpetrators.

    Why do you think that TRC proceedings could satisfy the complementarity requirements?

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