Cablegate: Mbeki Panel to Recommend Hybrid Courts, Consultative

DE RUEHKH #1079/01 2670948
O 240948Z SEP 09




E.O. 12958: N/A
SUBJECT: Mbeki Panel To Recommend Hybrid Courts, Consultative
Conferences to Address Darfur Problems

1. (SBU) Advisor to the African Union (AU) panel on Darfur Abdul
Kader Mohammed told diplomats that the panel's report would
recommend use of the 2005 Declaration of Principles as a political
framework for resolving the Darfur conflict; and resolution of
security and land rights issues including a mechanism for
establishing place of origin for internally displaced persons
(IDPs.) The panel will recommend hybrid courts, composed of Sudanese
and international judges, to prosecute individuals not indicted by
the International Criminal Court (ICC), as well as a series of
Darfur Consultative Conferences on for all stakeholders on IDPs, the
process of reconciliation and reconstruction, and land and nomadic
migration routes. The panel will make no recommendations regarding
the ICC indictment. The panel has already briefed the Government of
Sudan (GOS), which objected only to the hybrid court; panel members
will themselves negotiate that issue with the GOS. The AU will
engage the international partners in implementation of the
recommendations. End Summary.

2. (SBU) On September 17, Abdul Kader Mohammed, Chief of the
Darfur-Darfur Dialogue and Consultation (DDDC) process established
by the Darfur Peace Agreement (DPA, advisor to the United
Nations-African Union Mission in Darfur (UNAMID) and to the African
Union (AU) panel chaired by former South African President Thabo
Mbeki, briefed EU diplomats, and representatives of selected other
countries including the U.S., Japan, Russia, China and India at
Mbeki's specific request, about the report's contents.

Use of 2005 Declaration of Principles Urged

3. (SBU) The root cause of the Darfur crisis has been the legacy of
neglect perpetuated by governments, Mohammed said; as a result, the
panel is focused on "the Sudan crisis in Darfur." Peace must
include the whole of Sudan, and not be monopolized by the two
parties to the Comprehensive Peace Agreement (CPA.) The Mbeki
report will recommend that the following steps be taken to resolve
the Darfur conflict: 1) Cessation of hostilities in Darfur, to be
verified by UNAMID; 2) Adoption of a political framework agreement.
In the Mbeki panel's view, the 2005 Declaration of Principles (Note:
The Declaration, signed by the Government of Sudan, the Sudan
Liberation Movement/Army (SLM/A), and the Justice and Equality
Movement (JEM) on July 5, 2005 in Abuja. End Note) is still valid
and can be used. 3) Adoption of a permanent ceasefire, which the
panel realizes will be more difficult to accomplish than the
cessation of hostilities; and 4) Adoption of a global political

Land Rights Must Be Addressed

4. (SBU) The panel will also make a series of special
recommendations in the report: 1) Darfur must not be excluded from
the 2010 elections. 2) A Darfur Consultative Conference (DCC), in
which all Darfur stakeholders can participate, should be organized
by the AU Special Mediator for Darfur, Djibril Bassole. Additional
conferences should also be held on IDPs, on the process of
reconciliation and reconstruction, and on land and nomadic migration
routes. 3) The security environment both within and outside the
internally displaced persons (IDP) camps must be improved. 4) The
issue of land rights must be addressed. IDPs whose lands have been
taken should have the right to return to their lands. A mechanism
must be established to determine the location of IDPs' original
homes. 5) The government should facilitate basic services to
rebel-held areas, and establish benchmarks against which the
provision of services can be monitored. 6) A peace stabilization
fund must be established.

Not Whether, But How, To Do Justice in Darfur

5. (SBU) The panel believes it is not a question of whether but how
justice should be done with regard to the violence that took place
in 2003-2004 in Darfur, Mohammed said. While the International
Criminal Court (ICC) has dominated the discourse, it is nonetheless
only a court of last resort. The ICC's scope is limited; Special
Prosecutor Ocampo told panel members that he anticipated prosecution
of only six individuals, three from the government and three from
the rebel groups. The ICC process will have to be accompanied by
conflict management, and reconciliation processes to bring justice,
Mohammed said.

6. (SBU) As a result, the panel will make a number of

KHARTOUM 00001079 002 OF 003

recommendations with regard to the Sudanese system of justice. The
panel will recommend strengthening the justice system, in
particular, by establishing a hybrid court to look at grave
violations of the law by individuals not prosecuted by the ICC. The
hybrid courts should be staffed by highly qualified judges from both
Sudan and the international community, nominated via a mechanism
established by the AU. The Sudanese government has already
established its own special courts in all three of the states of the
Darfur region, but none is yet functioning, Mohammed said. In
addition, the panel believes laws on immunity should be amended, and
Sudanese judges who have been dismissed should be reinstated. A
Truth and Reconciliation Commission should be established, to
include independent people of high integrity. Compensation should
be provided for both individuals and communities.

--------------------------------------------- -----
Rigorous Process Legitimizes Panel Recommendations
--------------------------------------------- -----

7. (SBU) Mohammed stressed that the Mbeki panel's rigorous process
has given legitimacy to its recommendations. The panel, established
in April 2009, was to have completed its work by July but requested
an extension through the end of September. The panel spent 39
working days in Darfur, and consulted with 2,700 persons, including
rebel leaders, Darfuris in diaspora, and opposition parties, and
conducted special consultations with the judiciary. All Special
Envoys were consulted, as were major human rights organizations.
Both the AU's Special Mediator for Darfur and the ICC Special
Prosecutor were consulted. Testimony has been compiled in two
volumes and will be publically available. At the end of the
process, the panel convened stakeholders in focus groups to discuss
recommendations. At all times, the panel was impressed by the
civility of the discussion, Mohammed said.

8. (SBU) The report will go to the AU by the end of September, and
will be considered by the Peace and Security panel at the head of
state level in Nigeria. The government of Sudan intervened in the
process only once, at the beginning, Mohammed said. President Mbeki
made it clear that the panel's work was his own, and that he would
brook no interference. The panel has already briefed the Sudan
Government on its recommendations, and they objected only to the
hybrid court, at which they were openly displeased, Mohammed said.
In general, however, Mohammed said he had never witnessed such
open-mindedness from the Sudan government before. There was no
obstruction of the process, and the government allowed the panel to
bring in Darfur people from the smaller towns to participate. All
in all, Mohammed concluded, a new attitude may perhaps be emerging
that the panel's work can help consolidate.

Panel Makes No Recommendation Re ICC

9. (SBU) In response to questions, Mohammed told the group that the
panel made no recommendations regarding the ICC indictment. Any
issues related to possible deferral of the indictment will be
between the AU and the UN Security Council. As to whether the
Government of Sudan will accept a hybrid court, Mohammed said that
the panel will itself negotiate that issue with the Government of

Process Helped Rebel Movements Organize

10. (SBU) The Justice and Equality movement (JEM) remains
uncomfortable with the concept of an inclusive peace process,
Mohammed said; they continue to want to be the only ones at the
table. To help the other movements gain cohesion, the panel
provided them with questionnaires. The process forced the groups to
discuss their responses, and to put them in writing. For the first
time, Mohammed said, the rebel groups elected representatives from
their number to speak. The panel was impressed with the responses,
which were cohesive, reasonable, and forward looking. The rebels
showed growing maturity, Mohammed said.

11. (SBU) The government has agreed that civil society should be
allowed to participate in the conference, Mohammed told the group.
At one time, the government viewed civil society as a stalking horse
for the opposition parties, but that has now changed. To test
whether civil society could participate productively in a Darfur
Consultative Conference, the AU panel conducted a day-long workshop
for selected participants. Some people even did power point
presentations of their priorities. As a result, the panel is
convinced that participation in a Darfur Consultative Conference

KHARTOUM 00001079 003 OF 003

will further consolidate their views. A standing committee has been
formed to help them get ready for the conference.

12. (SBU) As to returns, the panel recommended that UNAMID create a
conflict map of Darfur so that people will know which areas are at
peace, and where development is possible. Returns must be handled
comprehensively, Mohammed said. Tufts University, and well as the
three universities in Darfur have already conducted studies of the
issues surrounding returns. If the Darfur Joint Assessment Mission
(DJAM) were to fund a conference on returns, it would be a venue for
soliciting the views of all Darfurians, Mohammed said.

Implementation Heart of the Problem

13. (SBU) The problem of Sudan has always been implementation,
Mohammed acknowledged, and if the AU panel's recommendations are to
be successful, they will require both political and technical
monitoring. As a result, the AU panel will enlist the support of
international partners, and actively engage the GOS.

14. (SBU) Comment: The AU panel's recommendations for a hybrid
court and consultative conferences have been an open *secret* for
months. What was new in this briefing was word that the Mbeki
report will make no recommendation regarding the ICC indictment of
President Bashir; widespread speculation held that the panel would
recommend the hybrid courts as an alternative to the ICC
prosecution. Although the GOS continues to reject the hybrid court
concept, most recently through the mouthpiece of the Sudanese Bar
Association, Mbeki's promise to negotiate the hybrid court issue
directly with the GOS, coupled with Mohammed's hint that any
discussions of possible deferral of the indictment would be between
the AU and the UN Security Council, may indicate that the speculated
compromise has not entirely been foreclosed.


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