On December 21, 2009, the Security Council will be briefed on the report of the African Union High-Level Panel on Darfur. The panel, led by the former South African president Thabo Mbeki, was established in March to explore ways to secure peace, justice, and reconciliation in Darfur. In October, the panel issued a comprehensive 125-page report.
"The panel rightly lays the near total absence of justice for horrific crimes committed in Darfur at Khartoum's feet," said Richard Dicker, International Justice Program director at Human Rights Watch. "We look to President Mbeki and the Security Council to strongly back the panel's call for prosecutions of serious crimes."
In its report, the panel analyzes the Darfur crisis, discusses the potential for negotiating a political settlement, and suggests initiatives aimed at achieving justice and reconciliation.
The report details inaction by the Sudanese government to hold perpetrators of crimes in Darfur to account and indicates that justice for these crimes should be a priority. The report says that "the perpetrators of the serious crimes in Darfur have overwhelmingly remained unpunished" and the Sudanese government cannot "ignore its own duty to deal with the crimes."
The panel recommends a "hybrid court" for Darfur, including Sudanese judges and judges appointed by the African Union, along with a truth and reconciliation commission. It says that Sudan needs to strengthen its domestic criminal justice system and remove immunities under domestic law for state officials who violate human rights. The panel does not take a position on whether the proposed hybrid court or national efforts should seek to try Darfur cases before the International Criminal Court (ICC).
Human Rights Watch said that the establishment of a hybrid court is likely to face major obstacles, including the lack of political will that has undercut domestic efforts for Sudan to hold perpetrators accountable for crimes committed in Darfur.
"Khartoum has been stonewalling on justice for years," Dicker said. "The proposed hybrid court and national law reforms could potentially help, but should not derail the ICC cases for one minute."
The ICC has been investigating and prosecuting crimes in Darfur since 2005, when the Security Council referred Darfur to the ICC under Resolution 1593. The ICC currently has cases against four individuals suspected of war crimes and crimes against humanity committed in Darfur. Among them is President Omar al-Bashir, for whom the ICC issued an arrest warrant on March 4.
Sudan has not cooperated with the ICC, despite its obligation to do so under Resolution 1593. The Mbeki panel found that persons displaced by the Darfur conflict "welcomed the prospect of ICC prosecutions as the only appropriate mechanism for dealing with the situation they have suffered in Darfur, and expressed strong support for the work of the ICC," which the Sudanese government "continues to reject."
The African Union has called for the Security Council to defer the ICC's case against al-Bashir. Article 16 of the Rome Statute, which created the ICC, permits the Security Council to grant deferrals for renewable one-year periods under the council's authority to maintain peace and security. However, progress on domestic accountability efforts is not a basis for an article 16 deferral under the Rome Statute, Human Rights Watch said.
"The Security Council should support the Mbeki panel's call for legal reform in Sudan as a way to improve accountability for human rights abuses," said Georgette Gagnon, Africa director at Human Rights Watch. "Genuine reforms could also help create the conditions necessary for free and fair national elections in April 2010."
In October, Human Rights Watch issued a report on human rights abuses and repression across Sudan that includes wider recommendations to the Security Council, including establishing an independent monitoring mission and imposing targeted sanctions.
Background on National Efforts to Prosecute Serious Crimes in Darfur
On June 7, 2005, the day after the ICC prosecutor announced he was opening investigations into the events in Darfur, the Sudanese authorities established the Special Criminal Court on the Events in Darfur. However, by June 2006, authorities had brought only 13 cases before these courts, all involving low-ranking individuals accused of minor offenses such as theft. In the sole case relating to a large-scale attack on civilians, the court merely convicted the accused of theft that occurred after the attack.
In August 2008, Sudan's justice minister, Abdelbasit Sabdarat, appointed a special prosecutor and legal advisers in each of Darfur's three states to investigate crimes from 2003 onward. In October 2008, Sudanese justice officials announced that the special prosecutor had completed an investigation into allegations against Ali Kosheib, a militia commander who is wanted by the ICC for war crimes and crimes against humanity. In February 2009, the special prosecutor for Darfur stated that three men, including Kosheib, had been charged in a case related to events in Deleig, Mukjar, Bandas, and Garsila.
However, there has since been no indication of any progress in this or any other case, and the special prosecutor has complained publicly that he has had difficulty gaining access to and interviewing victims.
The ICC's Darfur Cases
The ICC has issued arrest warrants for three suspects for alleged war crimes and crimes against humanity committed in Darfur: President al-Bashir; Ahmad Harun, the former minister of state of the interior and the former minister of humanitarian affairs; and Ali Kushayb, an alleged commander of the Janjaweed militia. The ICC has also issued a summons to appear for a Sudanese rebel leader, Bahar Idriss Abu Garda, for alleged war crimes committed as part of an attack on an African Union peacekeeping base, Haskanita. Applications for arrest warrants or summons to appear for two other rebel commanders - who are believed to have also participated in the Haskanita attack and whose names have not been disclosed - are under review.
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