VZCZCXRO3225
OO RUEHROV RUEHTRO
DE RUEHKH #1079/01 2670948
ZNR UUUUU ZZH
O 240948Z SEP 09
FM AMEMBASSY KHARTOUM
TO RUEHC/SECSTATE WASHDC IMMEDIATE 4455
INFO RUCNIAD/IGAD COLLECTIVE
RUEHGG/UN SECURITY COUNCIL COLLECTIVE
RHMFISS/CJTF HOA

UNCLAS SECTION 01 OF 03 KHARTOUM 001079 
 
NSC FOR MGAVIN, LETIM 
DEPT PLS PASS USAID FOR AFR/SUDAN 
ADDIS ABABA ALSO FOR USAU 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL PHUM KDEM KPKO AU UNSC SU
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 
agreement. 
 
----------------------------- 
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 
Sudan. 
 
--------------------------------------- 
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. 
 
WHITEHEAD