Speaking in Addis Ababa a few days ago, President Thabo Mbeki, Chair of the AU Panel on Darfur, did not divulge what the Panel’s position would be on the question of how best to bring justice to Darfur. Throughout the consultations and hearings over the last months, when talking on this point, Pres. Mbeki has been careful to stick to some basic facts and to ask questions. The Panel has heard many different and diverging opinions on these matters””some of which I will recount in the following postings. But, as he noted, “the central issue is that everybody agrees that this matter of justice is important.” Beyond that, there are those who argue for the ICC, and those who insist that Sudanese mechanisms are the only option.

A second observation is also important. The AU Panel is mandated by the AU, which has taken certain positions on the issue of justice in Darfur. The Panel has been tasked with making recommendations to the AU. It is not restricted to making recommendations which accord with existing AU policy. The principal constraint on the Panel’s recommendations, repeatedly emphasized by Pres. Mbeki, is that they are only meaningful insofar as they are actually implemented””whatever the Panel proposes must be workable.

In a series of postings, I will consider the Sudanese opinions heard by the AU Panel on Darfur and the response of the Panellists to the challenges of justice in Sudan. The first posting is on the Panel’s own position. The second and third postings summarize and reflect on opinions put forward by Sudanese participants in the hearings, on the themes of (a) the importance and scope of justice and (b) options for pursuing justice.

The Position of the AUPD

Repeatedly, in different public meetings, Darfurians challenged the AU Panel on the question of justice. Particularly, people sympathetic to the armed movements, were suspicious of the Panel’s agenda. In Geneina, one native administration representative asked, “Is the Panel completely independent or under the influences of the Sudan Government or armed movements?” (His real concern was whether the Panel was independent of the government””the reference to the movements was just political cover.)

Pres. Mbeki answered, “We are now in 2009 but the issue is not solved. … The AU said to us, “˜you must be an independent panel, not taking instructions from the AU.’ We must also be able, possibly, even to criticize the AU itself. The Panel must make suggestions to the AU, in the same way that it makes suggestions about everyone else.”

In Zalingei, the IDPs were not so circumspect. They came straight to the point. Their delegates said:

“We as IDPs determine:

1. The AU does not possess the competence, credibility, neutrality and independence in addressing the issue of Darfur, through the apparent backing of the Sudan government headed by Omar al Bashir.

2. The AUDP does not possess the competence, credibility, neutrality and correct understanding. [We reject] Thabo Mbeki’s clear support for Omar al Bashir on the ICC issue. …”

The allegation that Pres. Mbeki was intent on salvaging Pres. Bashir came up several times in the discussion. One woman said, “We fear you are here to defend the criminal Omar al Bashir.” One man stood up and said, “Seven members of my family were killed. How should I feel if Thabo Mbeki says that Omar al Bashir should not go to court?”

Pres. Mbeki challenged him, “from where did you get this information that I said that President Bashir should not go to court?” The man responded, “it is well known.” He then said that the Africans were the ones saying Bashir should not go to the ICC, citing the early June meeting in Addis Ababa to discuss the African position on the ICC. This reply did not satisfy Pres. Mbeki, who continued to press him, “I asked you a question. Please answer it. You made an allegation. From where did you get this information?” The man said it was the BBC.

In response, Pres. Mbeki made several points. First, he suggested that the man should obtain his information directly from the source, in Africa, not from outside Africa. Mbeki said that he had not made any statement on whether Bashir should go court, or not. Second, he pointed out that the outcome of the June meeting in Addis Ababa had not been withdrawal from the ICC. Third, he explained the content of the resolutions of the Peace and Security Council on the issue, and promised to ensure that copies of the resolutions were sent so that the people could study them first hand and not rely on others’ interpretations.

There were several other discussions of this kind. One of the most interesting was in the SLA-held area of Ain Siro. After listening to some strong statements in support of the ICC arrest warrant against President Omar al Bashir, Pres. Mbeki put a question to the people assembled:

“I will meet President Bashir, and I will say to him, there is a school here, which needs books, money for the teachers, etc. I would like to say there is a clinic which needs medicine so people have a health service. Also I would like to say that it’s important that the UN and the government must make sure food supplies are not stopped and will reach Ain Siro. [I will report that] people want peace, they want agreements respected, but their experience is that this is not so.”

He came to the point: “Here is my problem. This leadership is saying that, instead of raising those things, I should arrest him.”

Ali Haroun, the senior SLA commander in the area, gave a reply that illuminated the complexities of the question””and didn’t give a simple answer one way or the other.

“Part of the answer is that Omar al Bashir is not respecting agreements. As for arresting him, with all due respect, there is no capacity for you to arrest him. But if the question is, do the people of Darfur want to prosecute him? … There are political and legal aspects. On the political aspect, we made a revolution with demands for rights. We are still on that path. Who could sign an agreement with us? Omar al Bashir””I could sign with him. On the legal aspect, since he has committed crimes against Darfurians… if he goes back to the people who suffered, they should decide whether they want to prosecute or not.”

In summary, the Panel is still at the stage of asking people””especially Darfurians””for their opinions and proposals. There are certain realities, such as the positions taken by the AU heads of state, and by the ICC, which constrain and influence what the AU Panel can realistically recommend, but there are no overriding determinants on what it may decide.