Save Darfur Coalition Submission To The African Union Panel On Darfur

Save Darfur Coalition’s Submission to the African Union Panel on Darfur The African Union Panel on Darfur’s study of the current dynamics of the conflict in Darfur should be welcomed by all those who desire peace, justice and reconciliation for the war-ravaged people of western Sudan. We hope that the panel has received full access to the victims of and parties to the conflict as well as other concerned Sudanese actors. Through such a process, the members of the panel certainly would have heard narratives from Darfurians of the history of the conflict and current situation rooted in local and national causes. The panel also has presumably heard appeals from other actors based on macro-level regional and geo-political interests. We urge the panel to prioritize both the long-standing and urgent concerns of the people affected by this conflict whose future can be profoundly shaped by the panel’s final recommendations. Indeed, when faced with a choice between the rights of African people and the interests of African states and their leaders, the African Union should stand on the side of the people. For six years, the Sudanese government has asked African countries to ignore the crimes against humanity being committed in Darfur. As you know, Sudanese leaders have argued that the state’s sovereignty legitimizes all government actions within its borders and shields the state from any external interference. Countless times, though, the African Union has rejected this argument. Responding to reports from Sudanese and independent human rights agencies, the African Union has sent humanitarian workers, monitors, peacekeepers, and mediators to help the people of Darfur and to facilitate a peaceful settlement to the conflict. The failure of the Sudanese government to protect its own citizens necessitated all of these critical initiatives and missions. The conditions on the ground in Darfur have changed considerably since the beginning of the conflict. While violence against civilians has diminished and the sources of violence are more diffuse, the Sudanese government’s commitment and ability to end the conflict, secure justice for its victims, and reconcile the war-affected communities remain seriously in doubt. It is for this reason that the African Union should closely coordinate its efforts to secure peace, protection and justice for Darfurians with the international community. No country or international organization has the institutional capacity or required relationships with the Sudanese parties to end the conflict alone. The African Union should deepen its partnership with the United Nations for peacekeeping and peacemaking in Darfur while at the same time coordinating all of its efforts with the permanent members of the UN Security Council, the League of Arab States, and key regional states. It is only by forging these partnerships that the international community can together muster the necessary resources to tackle fully the issues of peace, justice and reconciliation in Darfur. In this context, we submit the following recommendations to the African Union Panel on Darfur. To secure a comprehensive and inclusive Darfur peace agreement, the African Union should coordinate with the relevant regional and international actors to: • Provide the armed movements with support for pre-negotiations and negotiations; • Ensure that the Darfurians feel ownership of any peace agreement; • Support strong civil society input and presence in the peace process; • Ensure that a Darfur peace agreement advances peace, justice and democracy for all Sudanese; • Coordinate all support to the peace process with appropriate regional and international actors. To address the challenges of justice and the suppression of impunity in Darfur, the African Union should: • Support the Darfur case before the International Criminal Court; • Positively engage with the International Criminal Court; • Support the development of local, national and regional complementary accountability mechanism; • Ensure justice and ending impunity are essential components of any future Darfur peace agreement.

1) What can and should be done urgently to conclude a comprehensive and inclusive Darfur peace agreement? Despite predictions to the contrary, the talks between the Sudanese government and some of the rebel movements have progressed considerably since the ICC Prosecutor requested an arrest warrant from the court for Sudanese president Omar al-Bashir in July 2008. In fact, at the time of the Prosecutor’s announcement, no serious negotiations were taking place. The naming of Djibril Bassolé as AU-UN Mediator that same month and the Qatari invitation to host the talks in subsequent months served as opportunities to re-launch substantive talks among the various parties. There is no doubt, though, that the possibility of Bashir’s indictment contributed to the Sudanese government’s decision to return to the negotiating table. It has been argued that the prosecution of Bashir would only embolden the negotiating stance of the Darfuri rebels. While the Justice and Equality Movement (JEM) withdrew temporarily from the talks after the ICC issued indictments against Bashir in March 2009 (because the Sudanese government’s expulsion of international aid groups violated commitments that the government made in the “goodwill agreement” signed in Doha in February), their negotiating team has now returned to Doha and is in the midst of a new round of negotiations. Other movements have also joined or are considering joining the talks. Regional bodies such as the African Union and the Arab League along with the international community should collectively urge all movements seeking peace and justice in Darfur to send delegations to Doha as soon as possible. The signing of the “goodwill agreement” between JEM and the Sudanese government and the continuing negotiations serves as evidence that the peace process has not stalled because of the ICC proceedings. On the contrary, the possibilities for reaching a peace agreement – while still not assured – appear closer now than at any point since the Abuja negotiations of 2006. At this moment, all pressure therefore should be placed on the parties at Doha to agree and adhere to a longterm ceasefire. Achieving this objective should be the main task of the mediators over the coming months. A ceasefire between the Sudanese government and any of the major movements could give necessary space and confidence for the negotiating delegations to move to the next step of negotiating a final settlement. This form of trust-building will also encourage those movements resisting negotiations to eventually return to the negotiating table. Planning and implementation of a cease-fire is no simple effort. The AU-UN Mediator should immediately being working closely with UNAMID, security experts and countries with relevant capacities to arrange the appropriate security mechanisms for a ceasefire. Overall, the structure of the Darfur peace process should be similar to the Naivasha talks that produced the Comprehensive Peace Agreement (CPA), and some of the ingredients are already in place. As did Kenyan General Lazaro Sumbeiywo with the Naivasha process, AU-UN Mediator Djibril Bassolé should lead the Darfur process. The Joint Mediation Support Team (JMST) should work with Ambassador Bassolé on the plan for a negotiation framework, timeline for negotiations, and appropriate mechanism for shuttle diplomacy. Bassolé must also be supported by a strong team of diplomats and regional experts and backed by a small group of countries with leverage, high-level support, and full-time representation at the talks. This inner circle should include the United States, United Kingdom, France, and China. An outer circle group of countries and multilateral organizations (UN, AU, Arab League) should also be engaged in a formal manner to discourage spoilers, and other key nations such as Russia, Egypt, Saudi Arabia, Senegal, and South Africa need to be thoroughly consulted. In terms of the parameters of the negotiations themselves, the international community should draw lessons from the failed Abuja negotiations and the failed attempts to revive the peace process over the last three years: Lesson #1: Support for Movements in Pre-Negotiations and Negotiations

The movements during and after Abuja have never focused their energies on articulating their interests and positions (or those of the government) and building common platforms. Instead, they have constantly engaged in their own internecine power struggles. For example, the final month of Abuja when both sides faced an international deadline revealed the extent of the imbalance in negotiating experience, as the Sudanese government took advantage of the situation while the movements displayed a complete inability to negotiate effectively. While mediators have recognized that the rebels’ intransigence is partly due to a lack of expertise and confidence in negotiations, they have failed to provide adequate mediation support to the movements. Recommendation: The international community must immediately seek means to support the negotiation capacity of the rebel movements. Through the UN/AU Joint Mediation Support Team (JMST) or other actors, the movements must be given negotiation training before the talks and access to trusted technical advisors before and during the talks. These trainings will build confidence of some of the rebel movements and will encourage them to join the talks. The JMST should aim to have all the rebel factions present at the talks within two or three delegations, preferably with a common negotiating position. Lesson #2: Ownership of an Agreement It must be remembered that the text of the DPA was imposed upon the movements to meet self-imposed deadlines. As such, it created a unique situation where confidence-building between the parties had to take place after the agreement was signed, not beforehand. Finally, once a deal was struck with one of the movements, the international community rejected any mechanism to improve the final agreement and secure the signatures of the other movements. Unfortunately, since the failure of Abuja, the mediators have not gained the confidence of any of the rebel movements. Therefore, they continue to see negotiations as a trap, set by the Sudanese government or other rebel movements, rather than as an opportunity to attain their objectives through a peaceful settlement. Recommendation: The international community should reject deadline diplomacy and only support a peace process that gives the Darfuri movements and civil society leaders an opportunity to articulate their demands without undue pressure from external powers. As at Abuja and in its aftermath, there will be contentious debates over the specifics of the wealth, power, development, and security arrangements of any robust agreement. The mediator should consult with all the parties at the beginning of the talks on developing the agenda and a convenient timeline. In order to achieve the buy-in of the movements, the mediator must establish a formal process—involving envoys from the international community as well—to solicit regular feedback from key stakeholders. The international community must also denounce any signs that an agreement is being forced upon the Darfuris. A deal arising from considerable economic incentives offered by the Qataris is not necessarily a bad agreement, but the Darfuri representatives must feel comfortable with the agreement. Lesson #3: Inclusivity/Exclusivity of the Process Broadening the peace process is essential to creating a sense of ownership among Darfurians. Limited formal means have existed to date for civil society to contribute to the peace process. The previous practice of giving seats at the table to almost any combatant has had the perverse effect of encouraging the factionalization of armed groups and giving armed groups a greater say in determining the future of Darfur than their unarmed counterparts. To date, the concerns of disaffected Arab tribes in Darfur have also been excluded from the formal peace process because of the focus on only bringing officially recognized rebel movements to the talks. A vigorous process of consultation with Darfurian civil society, including tribal leaders (including Arab tribes), will ensure the talks are truly representative and limit the ability of individual rebel leaders to put their personal ambitions ahead of a broadly acceptable agreement. With such a process in place, individual leaders will abstain from the process at their political peril. Recommendation: The Darfur peace talks will need strong civil society representation, including women, if they are to produce a sustainable agreement. For example, the Mo Ibrahim Foundation is supporting the

Darfur Civil Society Conference (Mandate Darfur) to help Darfurians articulate a peace initiative that will include civil society representatives from Greater Darfur in an effort forge “a constructive vision shaping the future of Darfur around the principles of peace, security, justice and—above all—development.” This initiative is not intended to be parallel to on-going peace efforts, but to serve as a complement to such efforts. The cancellation of the first meeting of Mandate Darfur in Addis Ababa due to the Sudanese government’s obstruction was a missed opportunity for the peace process. The initiative should be re-launched with the active support of the African Union and other international actors. Similarly, the Institute for Inclusive Security and Femme Afrique Solidarite have done considerable work designed to promote the role of women at the negotiating table. As support for a draft agreement expands, the mediator and the international community in cooperation with the civilian protection force should use these civil society channels and others to act decisively to isolate spoilers. Lesson #4: An All-Sudan Formula The AU mediators’ mandate at Abuja was to strike a deal that kept the Comprehensive Peace Agreement undefiled. Therefore, the mediators had to convince the movements that any power-sharing agreement would only be temporary as a result of scheduled national and regional elections in 2009. Yet, this tactic required that the movements believe in the fulfillment of long-term promises. With a lack of trust in the NCP and later in the AU mediators and even the international community, Abdel Wahid and JEM refused to give up assurances today in exchange for uncertain promises of future gains. The current threats to the viability of the CPA make negotiating a Darfur peace process even more challenging. Recommendation: The international community must ensure that any deal between the Darfuris and the Sudanese government advances peace, stability, justice and democracy for all Sudanese. As such, it must work with the SPLM to promote means to balance the CPA with new economic and political rights for the Darfuris. More importantly, the international community must seek various enforcement mechanisms for the agreement. Lesson #5: Coordinated Regional and International Support The track record for regional and international actors at Abuja was mixed. Regional powers – such as Chad, Eritrea and Libya – sought to fulfill their own political objectives to the detriment of seven rounds of negotiations. On the other hand, Egypt and the Arab League refused to use their leverage with the Sudanese government and primarily served as observers. The Western powers provided little support to the talks until the end, when they swooped in on the negotiations to demand the signatures of the rebel movements and the government. Only the underfunded and logistically overwhelmed Africa Union and key member states like Nigeria showed a consistent commitment to supporting the talks. Since Abuja, various actors have sought to lead and or host the talks. Multiple and competing options for negotiations allowed the Sudanese government and Darfuri rebel movements to pick and choose venues for strategic considerations. This “forum shopping” considerably delayed the peace process and allowed various governments to retard progress. Recommendation: The Permanent 5 of the U.N. Security Council, African Union and Arab League should form a coordinating group to assist the efforts of the Joint UN/AU mediator and the Qataris. Not only would this group have the capacity to assist at necessary points in the mediation, but it would be ready to immediately take on the responsibilities of monitoring and enforcing the implementation of the agreement. By working together, this group may also be able to marginalize the power games of regional powers like Chad, Egypt, Eritrea and Libya. After multiple failed peace efforts and meandering consultations, the issues at stake in Darfur are fairly well understood. Any final agreement will have to address the following: • A substantial sum for individual compensation to be paid by the government; • International monitoring of a cessation of all forms of state support for the janjaweed militia structure and the complete disarmament of the janjaweed;

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International monitoring and support for encampment of all forces in Darfur (government, rebel, and militia); Administrative arrangements for Darfur; Power sharing for Darfurian constituencies; and A comprehensive plan to address the humanitarian, livelihoods, environmental, and development challenges that Darfur will face in the aftermath of the conflict

The Darfur Darfur Dialogue and Consultation (DDDC) was designed to address these issues after the signing of the Darfur Peace Agreement. It has largely failed to generate productive dialogue on these issues because of its association with the Darfur Peace Agreement. In many cases, it has actually generated suspicion and hostilities between ethnic and political groups. As such, the DDDC should be immediately suspended. Rather than continuing with this tarred post-conflict tool beset by the realities of active conflict, the UN/AU Mediator should develop a new channel for communication to assist the peace process with the Darfuri civil society and representatives in the IDP and refugee camps. The international community and the mediator should also make clear that they are committed to a fair outcome, broadly supported in Darfur and that any final agreement must include international guarantees that international actors are committed to fulfilling. In addition to these local issues, the Darfur peace process must be closely linked to a national dialogue about the implementation of the CPA and forthcoming elections as well as the resolution of the proxy-wars being carried out by the Sudanese and Chadian government. It must be acknowledged that the deterioration of confidence in the implementation of the CPA by Sudanese parties hampers progress in the Darfur peace process. A peace deal on Darfur cannot be reached if Sudan as a country is falling apart. Likewise, the Sudanese government continues to seek a military solution for Darfur through regime change in Chad, and Chad continues to back the JEM in response. The AU and the international community must support highlevel negotiations in Libya aimed at reducing state support for foreign-armed groups and eventual normalization of relations. 2) What steps should be taken to address the challenge of justice and the suppression of impunity arising from the conflict in Darfur? The will of African states to suppress impunity and ensure justice for mass human rights violations and atrocities was firmly enshrined at the founding of the African Union in 2000. The AU’s Constitutive Act frames the protection of individuals from grave criminal harm as a collective responsibility of African states. The Act identified the condemnation and rejection of impunity as one of the central values guiding achievement of the core AU objectives of the promotion of peace, security and stability and the promotion and protection of human and peoples’ rights. Recent history in Sudan has confirmed the African Union’s founding wisdom that, without justice and accountability, peace will be in jeopardy. Parties negotiating the Comprehensive Peace Agreement (CPA) to end the decades-long war between North and South Sudan decided to leave accountability mechanisms out of the accord. Less than five years later, implementation of the CPA has fallen far behind schedule, violence has increased on border regions, and regional and international leaders have been forced to devote significant energy and resources to upholding the CPA and preventing a return to civil war. Similarly, the Darfur Peace Agreement (DPA) failed to address the need to end impunity and ensure justice for the victims of the conflict that has raged in Darfur since 2003. This deficiency of the agreement was one major reason for its death on arrival – why it was unable to gain the confidence of the non-signatory rebel movements and much of Darfuri civil society, particularly community leaders in the IDP camps. The African Union Panel on Darfur now has the opportunity to prevent the repetition of these mistakes. It should recommend steps to resolve the Darfur crisis that support and strengthen mechanisms to end impunity and ensure a

path toward justice and a lasting peace for the people of Darfur. As outlined in answering the first question, justice proceedings initiated by the International Criminal Court for crimes in Darfur have already helped generate new potential for a meaningful peace process in Sudan. Overview: What should justice for Darfur look like? Bringing an end to rampant impunity and ensuring justice are great challenges for societies facing past or ongoing grave crimes, as many African Union member states know well. Yet, failure to end impunity for perpetrators of mass atrocities, including for the systemic rape and sexual violence in Darfur, will only encourage the continued perpetration of such crimes in Sudan as well as in other countries experiencing or recovering from conflict. A two-layered solution is essential – first, the pursuit of international justice at the level of the International Criminal Court to end impunity for those most responsible for war crimes and crimes against humanity; and second, the construction or reform of local, national and regional justice and reconciliation processes to address atrocity crimes in the future. In the long term, the African Union and international community should support and invest in genuine processes of legal reform and capacity building at the national level in Sudan. But any genuine progress in ending impunity and ensuring justice at the national level in Sudan is unlikely at present, and current regional mechanisms are unable to provide justice for crimes in Darfur. As such, the AU and international community must positively engage with the ICC while reiterating commitments to support the development of genuine accountability processes at national and regional levels. Importantly, international justice as pursued by the ICC may be especially helpful not only in bringing accountability in its own cases, but also in creating momentum and political will for national reforms and criminal justice proceedings. The current state of play: absence of genuine local or regional mechanisms with the mandate and capacity to address the grave crimes in Darfur The case of Darfur was referred to the International Criminal Court due to the absence of capable alternative mechanisms to deal with the grave crimes in Darfur, including any at the national level in Sudan or at regional levels. For example, one day after the ICC Prosecutor announced in June 2005 that he was opening investigations into the events in Darfur, the Sudanese authorities established the Special Criminal Court on the Events in Darfur (SCCED) to demonstrate the government’s ability to handle prosecutions domestically. Repeatedly over the past four years independent organizations have determined the futility of this special court in prosecuting any of the countless crimes committed in Darfur since 2003. Indeed, the Government of Sudan has proven to be unwilling and unable to pursue genuine national proceedings for the serious crimes in Darfur, through existing or reformed laws and justice mechanisms. Instead, it has: •

Failed to initiate criminal justice proceedings against individuals responsible for or accused of crimes against humanity or war crimes in Darfur.

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Refused to arrest and turn over those individuals charged by the ICC with crimes in Darfur. Instead, it demonstrated its rejection of international justice by appointing ICC suspect Ahmad Haroun Minister of State for Humanitarian Affairs responsible for Darfur, then Governor of a key border region between North and South Sudan in May 2009.

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Refused to heed advice from its friends and allies on compromise measures designed to satisfy the need for justice. Earlier this month, the Sudanese government rejected a proposal by Arab League SecretaryGeneral Amr Moussa for changes to Sudan’s criminal law to incorporate provisions from the ICC Rome Statute.

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Prevented justice for rape victims in Darufr, despite rampant sexual violence against women and girls in the region. Under Sudanese law, women who report rape may be charged with adultery. Moreover, members of Sudan’s military, police and security forces, including janjaweed militia integrated into the Popular Defense Forces, enjoy broad immunity and exemption from prosecution for human rights

violations including rape and sexual violence. The president of Sudan has not only shown unwillingness to address violent crimes committed against thousands of women and girls in Darfur, but has denied the very existence of rape in Sudan in a most fundamental confirmation that such crimes will go unpunished. •

Demonstrated willingness to sacrificed funding for implementation of the fragile CPA to make political statements rejecting the very premise of international justice. This month, the Sudanese government submitted notification of its withdrawal from the amendments made to the Africa, the Caribbean and the Pacific (ACP)-European Union (EU) Cotonou Partnership Agreement (CA) signed in 2005, which incorporated the fight against impunity and promotion of criminal justice through the ICC. As a result, Sudan may lose approximately 300 million euro, a large portion of which was allocated to the Government of South Sudan and implementing the CPA.

While the African Union should support the development of strong and genuine judicial mechanisms and structures in Sudan and within Africa to pursue justice for mass atrocities, it must recognize that at this point, these are absent or weak and will require time and political will from within Sudan and from other nations to build or strengthen. Over the past two decades, African Union member states have taken important steps in the construction of regional governance standards and structures such as the African Commission and Court on Human and Peoples’ Rights, agreement on the future African Court of Justice and Human Rights, and the justice-related commitments entered into by states in the Great Lakes region. But serious challenges remain in areas such as implementing agreements, allowing for individual criminal prosecution at the regional level, and enforcing recommendations of the ACHPR and any future decisions of an African Court. Thus, regional mechanisms are at present unable to address the need to end impunity for those responsible for crimes in Darfur. Recommendation #1: Supporting the Darfur case before the International Criminal Court While supporting the development of genuine national and regional justice mechanisms to address the crimes in Darfur to complement the ICC work, the African Union should support the International Criminal Court’s singular ongoing work to end impunity. The ICC currently provides the only genuine option for holding accountable those most responsible for crimes against humanity in Darfur. As recent developments have shown, the ICC proceedings have not interfered with the peace process – which shows more hope now than at any point since 2006. Moreover, African Union support for international justice will also help compel Sudan to take seriously its obligation to pursue national justice, which will always be an essential parallel to international justice proceedings to deal with the root causes of conflict, provide justice that is visible to affected peoples and with greater clear affect on their lives, and achieve reconciliation for a sustainable peace and the prevention of future conflict. Recommendation #2: Positive Engagement with the International Criminal Court Because the ICC is a still evolving institution, it is open to constructive influence and improvement by supporting states. The African Union and all states concerned about peace and justice have the opportunity through positive engagement to enhance the ability of the ICC to play a role in achieving the goals enshrined in the AU Charter, which are consistent with the core principles and objectives articulated in the Rome Statute. The AU and African states that are parties to the Rome Statute should participate actively in the ICC Review Conference that will be held in Uganda in 2010. The AU should move to complete the Cooperation Framework between the African Union and the ICC. It should also agree to the proposed ICC liaison office in Addis Ababa and facilitate its timely opening and operation. Recommendation #3: Ensuring Justice in a Future Darfur Peace Agreement The Darfur peace process should clearly address the need to end impunity and ensure justice for the grave crimes suffered by the peoples of Darfur. Mechanisms must include both criminal justice proceedings to hold perpetrators

accountable and complementary restorative justice processes that aid victims and survivors of atrocities and their families and communities. These essential mechanisms can include the payment of compensation for victims to regain their livelihoods, assistance with return to villages and reconstruction of homes and communities, and security and justice sector reforms to ensure protection of human rights in the future. Both criminal and restorative justice mechanisms must be supported, as maintaining impunity for perpetrators and failing to aid in the reconstruction of lives and livelihoods in communities affected by atrocities will encourage a return to violence. A future Darfur peace settlement must also include guarantees from regional leaders and the international community that parties to the agreement will be held accountable for enforcing its provisions. In order for a credible reconciliation and healing process to be possible, victims must be assured that any process to end the conflict and address its causes will be guaranteed by the international community. Additionally, civil society trainings for peace negotiations should include the building of capacity within victim communities to engage with international justice mechanisms and such genuine national justice mechanisms as may exist in the future. 3) What processes and institutions should be put in place to address the challenge of reconciliation and healing arising from the conflict in Darfur? Given the magnitude of the conflict in Darfur that has resulted in the total destruction of livelihoods, the destruction of communities’ social structures, and the loss of social trust within and among communities, reconciliation and healing are enormous challenges for the people of Darfur in the years ahead. Any process or institution must advance the following objectives for communities hoping to rebuild and reconcile: • Acknowledge and address the painful past: To build reconciliation, individuals and institutions need to acknowledge their own role in the conflicts of the past, accepting and learning from recent history in a constructive way so as to guarantee non-repetition. •

Build positive relationships: Relationship building or renewal following violent conflict should address issues of trust, prejudice, and intolerance. In this process, participants will accept commonalities and differences and embrace and engage with those who are different from them.

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Enable significant cultural and attitudinal changes: The culture of suspicion, fear, mistrust and violence should be broken down and opportunities and space opened up in which people can hear each other and feel that their own views are being heard. A culture of respect for human rights and human difference should be developed by creating a context where each citizen becomes an active participant in society and feels a sense of belonging.

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Commitment to substantial social, economic and political change: The social, economic and political structures which gave rise to the conflict and estrangement should be identified, addressed, reconstructed, and transformed.

As noted in answering the question on securing peace, the Darfur Darfur Dialogue and Consultation (DDDC) has failed to advance any of these objectives of reconciliation and healing. A major failing of the DDDC was the lack of leadership and support from the majority of Darfuri communities. Any new attempt at creating a reconciliation mechanism must be 1) locally owned by Darfuri communities with acceptable technical support and monitoring from the international community; 2) community-focused and communitydriven with substantial involvement of grassroots groups and organizations; 3) sufficiently funded by the Sudanese government and the international community; and 4) sufficiently diverse in leadership and participants in terms of ethnic groups and gender.