Sunday, 1 November 2009

An Ad Hoc Court for Darfur?

The African Union has agreed to propose establishment of a special court to deal with Darfur: The Peace and Security Council of the Union, meeting in Nigeria late last week, endorsed a report prepared by a panel that was chaired by former South African President Thabo Mbeki: According to the resolution adopted on Thursday, ‘Council urges, once again, the UN Security Council to heed the AU’s call for the deferral of the process initiated by the International Criminal Court (ICC) against President Omar Hassan Al Bashir, in the interest of peace, justice and reconciliation…’ The resolution adopted by the Council doesn’t make explicit reference to the proposed ad hoc court, but it does endorse very generally the recommendations of the panel chaired by Mbeki. The Mbeki panel report was not available on the African Union website. Perhaps a reader of this blog can share the report with us. I note that one of the members of the panel was Florence Mumba, who has served on the International Criminal Tribunal for the former Yugoslavia for many years.
Apparently the new court would consist of both Sudanese and international judges. It would function under the authority of the African Union, in cooperation with the Sudanese regime in Khartoum. A truth and reconciliation commission is also proposed.
Is this a new step forward in international criminal justice or is it a clever gambit to undermine the International Criminal Court, which issued an arrest warrant against Sudan’s president Bashir on 4 March of this year? Probably it is a bit of both.
With the ad hoc tribunals for the former Yugoslavia, Rwanda and Sierra Leone finishing their work, there is some traction for the view that a phase in international criminal justice has come to an end. The international community will eschew establishing new ad hoc tribunals because it now has a superior institution, the International Criminal Court, it is said. The main distinction of the International Criminal Court vis à vis the ad hoc tribunals is its political ‘purity’, many believe.
Perhaps, though, there are some advantages to the ad hoc model. It may well be that the so-called competitive advantage of the International Criminal Court is also its Achilles heel. In other words, for international criminal justice to function properly, possibly it requires a level of political direction and oversight. This is something that the African Union may think it can offer in the context of the Mbeki panel proposals.
The proposed African Union ‘Special Court for Darfur’ may represent a bit of a turning point in international justice, one that addresses a perceived shortcoming in the International Criminal Court model. It is too early to tell where this idea will go, but if the African Union is serious and its member states (including Sudan?) are supportive, my sense is that we are opening a new chapter in the development of international criminal justice.


Kevin Jon Heller said...

The complete report is available here:

VM said...

I am personally a bit afraid of this new chapter to be opened, if this problem is addressed in the way as proposed by the report. If political element becomes so openly emphasized in execution of international criminal justice, the notion of justice achieved may easily attract the "political" attribute, as well. At that point, would an international criminal tribunal of any sort really keep its legitimacy as a judge? Should not we than just ask for justice of the victors, as indicated in the Carl Jaspers' book The Question of Guilt?

Surprisingly, it seems that the Sudanese government may play the role of safeguard against fragmentation of the ICC authority in this case, as quoted in Mr. Heller's new post on Opinio Juris:

Dov Jacobs said...

it's an interesting idea... but I would hardly call it opening a new chapter of international justice. Internationalised criminal courts, in various formats, have been vastly used in the last few years (timor leste, kosovo, sierra leone, lebanon...).

Inside Me said...

At least the African Union is not seeking to stop the ICC from prosecuting President El Bashir, however why did the African Union not refer the cases to the African Court of Justice and Human Rights? This could have been an opportunity for the African Court of Justice and Human Rights to demonstrate its capabilities or lack of them so as to get institutional capacity from other continental courts. What I also find interesting is that a member of the AUPD (Former Egyptian Foreign Minister) accepted that the main goal of the Panel was to find a way out for the Sudanese President from the ICC. Could this mean the Sudanese government's acceptance (if they accept)of the hybrid courts, is linked to the case being deferred by the UNSC in line with the Rome Statute -Article 16- Deferral of Investigations or prosecution?

Sudan is definitely going through interesting moments , with the elections and referendum just around the corner-

Inside Me said...

Sean P. Brooks said...

Overall, the AUPD report generally matches the solutions to Darfur and Sudan’s other interlocking crises that the Save Darfur Coalition has urged the U.S. Government and the international community to support through aggressive diplomacy and mediation. On the specific question of hybrid courts, such courts could work as a mechanism for accountability complementary to the International Criminal Court (ICC).

I have written a fuller analysis at :