What Happened to Justice in the Darfur Peace Agreement?
If peace and justice in Sudan are on a collision course, one reason why is the way in which the Darfur peace talks and the accountability process have been structured, so that each process has been isolated from the other.
In the early rounds of the Darfur peace talks, the armed movements repeatedly raised the issue of accountability for crimes committed and destruction caused during the conflict. Justice was high among their priorities and the Sudan Government’s objection to the issue was one reason among many why so little progress was achieved. However, following UN Security Council Resolution 1593 in March 2005, the issue of accountability was set aside for the remaining duration of the Darfur peace talks, on the rationale that the ICC was now dealing with the issue. For the AU mediators and their international partners, this was a way of getting a complicated and divisive issue off the table. The Declaration of Principles of July 2005 made only oblique reference to justice. It referred to “full implementation of all relevant Security Council Resolutions” (preamble), rehabilitation and compensation (Article 10) and reconciliation (Article 11). The DPA of May 2006 reproduced this omission. Its preamble included the clause:
CONDEMNING all acts of violence against civilians and violations of human rights, and stressing full and unconditional acceptance of their obligations under International Humanitarian Law, international human rights law, and relevant UN Security Council Resolutions.
That was it. Save general references to human rights and the article on compensation, accountability failed to put in an appearance. The reference to “relevant UN Security Council Resolutions” was an obfuscation that concealed lack of agreement. The Sudan Government didn’t want any specific reference to Resolution 1593, while the movements did not want it excluded. This approach amounted to kicking the problem down the road. In reality, the mediators and international partners were in denial on the question of accountability and the implications of the Security Council referral to the ICC””it was as though they assumed that nothing would actually happen. This denial and sidelining stands in illuminating contrast to the Ugandan Government-LRA peace talks in which the issue of justice was front and centre.
When mediators try to downplay UN Security Council resolutions, it should be a warning sign that either the peacemaking, or the Security Council, or both, have taken a wrong turning.
Failing to address justice and accountability in the Abuja talks was an error. It had two consequences which are coming back to haunt the prospects for peace in Darfur and Sudan.
One consequence is that the DPA placed no obligation on the Sudan government to institute inquiries and criminal proceedings. Any such pressure came from the international community and the Sudan government responded with measures that were intended as just window-dressing. If the issue had been pressed during the negotiations and if truth and accountability measures had been part of the peace agreement, we might now be further along in the search for justice.
The outcome might be much better for the victims. While the ICC’s mandate does not exclude any individuals against whom there is evidence that they have committed crimes, in practice any ICC’s warrants and prosecutions will be confined to senior officials. The Court has neither the means nor the intention to prosecute the local militia commanders, low-ranking security officers, soldiers and fighters who actually committed most of the crimes. Even if the ICC were to obtain a conviction for a senior government figure such as President Bashir, this would not mean that justice is done at a local level. Under any foreseeable circumstances, such justice will be a matter for the Sudanese courts.
In practice, removing accountability from the negotiating table left the ICC as the sole custodian of justice. Given that majority opinion within the Sudan Government saw the ICC referral as a hostile act, this was a guarantee that nothing would be done. There has never been accountability for crimes committed during Sudan’s wars. Moreover, there was another perverse incentive at work. If the Sudanese judiciary had prosecuted perpetrators in Darfur, any evidence produced in court would have then been accessible to the ICC, which could have used it to investigate more senior officials. Rather than promoting national judicial proceedings, the combination of the ICC referral and the neglect of the issue in the peace talks, impeded such steps.
Ironically, this failure to progress has also damaged the Sudan Government’s interests. Had the national judiciary begun credible prosecutions, Khartoum would be able to mount a strong argument against ICC involvement. Under the complementarity provisions of the Rome Statute, the ICC has jurisdiction only if there are no credible national judicial processes.
Another consequence of the exclusion of justice from the peace talks was that the issues of compensation and traditional justice were never explored adequately. Until the very end of the peace talks, the question of compensation for lives lost, injuries inflicted and property destroyed or stolen, was treated within the framework of wealth-sharing, as a poor relation of the question of rebuilding Darfur after the war. It was not considered under the rubric of restitution and reparations, as a matter of justice and rights. The mediators misjudged the passion that the Darfurians brought to this issue. At the close of the negotiations, one of the issues on which the talks broke down was the insufficient amount in the Compensation Fund. This question was misrepresented by both sides, but the underlying reality was that the issue of compensation had not been adequately explored. The possibility of using traditional justice mechanisms was deferred to the Darfur-Darfur Dialogue and Consultation.
This failure to explore compensation and traditional justice was a missed opportunity. Traditional justice in Darfur revolves around compensation paid in money or livestock. According to the judiya system, the parties to a dispute call upon a third, neutral party to serve as mediator (ajawid). One of the main tasks of the ajawid is to assess the losses, in terms of lives lost, injuries sustained, property destroyed or stolen, sustained by each side. A monetary value is placed on all loss and damage, and compensation is paid. It is a variant of the blood-money (diya) system. Darfurians often make the case that their traditional justice systems are superior to modern ones, and that they would prefer these to be instituted.
Had the Sudan Government negotiators taken this option seriously, they could have negotiated with the representatives of the armed groups for a cash payment to the Darfurians, to settle the question of liability for damage done. This might also have given Khartoum another complementarity argument, namely that traditional justice was being done, so the ICC had better stay away.
This option was informally floated in the corridors of the Chida International Hotel in Abuja, where the negotiations were held. Neither side took it seriously. Khartoum’s delegates feared a trap. They said that this approach would require them to make a formal apology and a comprehensive assessment of damage. This would be a hostage to fortune””or more precisely, to the good faith of the rebels and the international community. Once the government had admitted liability, they reasoned, the rebels would engineer the collapse of the traditional mediation, or the internationals would reject it as flawed, and the ICC would simply exploit the apology and offer of compensation as evidence for guilt.
The delegates of the armed movements were also skeptical, trusting neither the government nor the tribal chiefs (who would be required to make assessments and legitimate the process). Also, some of them argued, reducing the Darfur war to the level of an old-fashioned inter-tribal dispute was insulting. While payment of blood money and compensation was appropriate for settling the local conflicts that had arisen in the shadow of the war, and would be dealt with by the DDDC, the mechanisms of justice that were needed to deal with the crimes committed in 2003-04 were modern, international ones. The negotiators for JEM””the movement which started the campaign to have Darfur labeled “genocide”””were adamant about this. Some of the rebels in fact nurtured a not-so-secret hope that the ICC would be an instrument of regime change, and drew parallels with the indictment of Milosevic.
As a result, instead of agreed accountability processes that could be complementary to the ICC, the outcome of the DPA was a vacuum. Justice was left to the Sudanese courts, with every incentive for the Sudan Government to ensure that proceedings were entirely farcical.
In his posting on 16 June, Chidi Odinkalu criticizes what he calls a “trade in cavalier polarities of either peace or justice.” In Darfur’s case, this polarity arose from the cavalier way in which the UN Security Council mandated a range of diverse activities on Darfur without establishing either coordination or prioritization among them, an error compounded by the failure of the Abuja talks to grapple properly with the question of accountability. We are facing the consequences of this ad hoc strategy today.