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Darfur Relief and Documentation Centre
The Impact of Restitution, Reparations and
Compensation on the Peace Process in Darfur
–
Critical Review of the Restitution
Provisions in Darfur Peace Agreement
By Abdelbagi Jibril
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DRDC Briefing Paper Series
The Impact of Restitution, Reparations and
Compensation on the Peace Process in Darfur –
Critical Review of the Restitution
Provisions in Darfur Peace Agreement
©Darfur Relief and Documentation Centre, Geneva (Switzerland), October 2009
27, Ch. des Crêts-de-Pregny, 1218 Grand-Saconnex, Geneva (Switzerland)
Tel: 0041 22 747 00 89 Fax: 0041 22 747 00 38
E-mail: [email protected] Webpage: http://www.darfurcentre.ch
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About DRDC:
The Darfur Relief and Documentation Centre (DRDC) is an independent non-
governmental organisation (NGO) based in Geneva, Switzerland. DRDC was
established in 2004 as an advocacy group working on the armed conflict in the
Darfur region of western Sudan. DRDC also conducts research, studies and
documentation on the different aspects that affect life in Darfur. DRDC
endeavours to consolidate modern civil society concepts in Darfur and to help
efforts to put an end to the destruction in the region, bring peace, and restore
the rule of law. It advocates adherence to the values of liberty, democratic
governance, equality and non-discrimination. To realize these objectives,
DRDC cooperates with a network of national and local partners working at the.
DRDC maintains a database of indigenous civil society groups as well as
researchers and academics from Darfur. DRDC accords special attention to
action at the international arena where some important decisions are taken. In
addition to enhancing the capacity of its indigenous partners and providing
them with the possible technical and material support, DRDC makes use of its
position to exclusively raise the concerns of the victims of the conflict in Darfur
at regional and international fora.
About the Author:
Abdelbagi A. M. Jibril is a Sudanese national and the founder and Executive
Director of DRDC. He is a post-graduate research student at the Geneva
Centre for Education and Research in Humanitarian Action, University of
Geneva. He was one of the resource persons at the Inter-Sudanese Peace
Talks on Darfur held in Abuja, Nigeria, (2005 – 2006).
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Table of Contents
Chapter Pages
Map of Darfur 05
Acknowledgment 06
Preface 07
Overview 07 – 08
Indigenous Methods of Restorative Justice in Darfur 09 – 10
Reparations in InternationalLaw and its Implication on the Situation in Darfur 10 – 12
International Response to theDemand for Compensation in Darfur 12 – 13
Restitution and the PeaceProcess in Darfur 13 – 15
Reparations and Compensation in the DPA – Critical Review 15 – 16
Major Shortcomings of theDPA on Compensation 16 – 17
Main Challenge Areas 18 – 20
Conclusion and Recommendations 21 – 22
Endnotes 23
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Map of the Darfur Region and Areas
Inhabited by the Main Ethnic Groups
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“It is being argued that the case for reparations in
Darfur is very clear and becomes stronger by the day”
Suliman Baldo and Lisa Magarrell,ICTJ, November 2007
Acknowledgment:
The author of this Briefing Paper wishes to thank all individuals who
contributed to the realisation of this work. Special thanks go to Judge (Rtd)
Hon. Mohamed Baraka Nourain and to Prof. Abulgasim Seifeldin Sameen
for their input and encouragement throughout the process of the
preparation of this Briefing Paper and to Ms. Alexandra Hamilton-Small for
editing the manuscript and other technical assistance.
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Preface
This Briefing Paper is meant to assist institutions, groups and individuals involved in the
peace process in Darfur to further reflect on the appropriate way to treat the questions of
reparations for the damage caused and compensation for the victims of the armed conflict
in Darfur in the future political negotiations. The Briefing Paper attempts to take stock of the
main features of the unfinished debate on reparations and financial compensation as
discussed and finally presented to the parties to the conflict in Darfur at the conclusion of
the last round of the political negotiations that ended up with the signing of the Darfur
Peace Agreement (DPA)1 in Abuja on 5th May 2006. In so doing, the paper attempts to
provide critical analysis of the main features and provisions for reparations in the DPA.
The Briefing Paper thought it appropriate to employ a comparative approach and, therefore,
it has briefly touched on some aspects regarding reparations and compensation in Darfur’s
traditional justice system as well as international law and universal human rights doctrines.
Drawing attention to the right to reparations in international law is important in highlighting
the relevance of these doctrines to the situation in Darfur as recommended by the 2005
report of the International Commission of Inquiry on Darfur (ICID).2 This undertaking is
meant to enrich the debate and encourage individuals and institutions involved in the peace
process in Darfur to take into consideration the inclusion of universally accepted norms and
standards on reparations and compensation in their future work on these subjects.
Overview
The issue of restitution, especially the questions of reparations of the collective damage
caused in Darfur and financial compensation to individuals for their personal losses when
restitution in kind is not possible, was one of the contentious issues addressed during the
process that led to the signing of the DPA between the Government of Sudan (GoS) and
the Sudan Liberation Movement/Army (SLM/A)-led by Mr. Minni Minawi. Some international
human rights experts argued that: “… the case for reparations in Darfur is very clear and
becomes stronger by the day”3 and, therefore, it is expected to remain amongst the main
areas of concern to be addressed during future negotiations for a political settlement of the
conflict. This is because the right to reparations for tort, whether moral or material tort, is
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deeply ingrained in the socio-cultural and religious beliefs of the people of Darfur. The deep
rooted socio-cultural importance of the right to remedy in Darfur’s societal set-ups would,
perhaps, explain why the demand for reparations and financial compensation to individuals
has been among the major concerns of the direct victims of the armed conflict, especially
the internally displaced persons (IDPs) and refugees.
Under the circumstances it is safe to say that the demands for
restitution, reparations and financial compensation by individual
victims of the armed conflict in Darfur should not be expected to
die out before been addressed to the satisfaction of the victims.
On the political side of the equation it is widely believed that the questions of reparations
and financial compensation to individual victims, as confined in the DPA within the
framework of restorative justice, were responsible for the weak support that the DPA has
received from the IDPs, refugees and an important segment of the people of Darfur. Weak
or unsatisfactory provisions on compensation in the DPA had also been considered as
some of the main reasons why the Justice and Equality Movement (JEM) and the SLM/A –
led by Mr. Abdelwahid Mohamed Ahmed El-Nour – refused to sign the DPA. Rejection of
the DPA by these two insurgent groups has significantly diminished its political importance
and eventually jeopardized the whole peace process in the region.
The Joint African Union/United Nations (AU/UN) Mediation on Darfur and observers alike
need to accord special attention to a number of possible conflict areas that may arise during
discussion on the issues of reparations and compensation in the future negotiations. The
negotiating parties also need to acquaint themselves with relevant experiences of other
nations that have set precedents in this area. A crucial element in the forthcoming exercise
– which was not adequately reflected upon during the previous round of negotiations on
peace in Darfur – would be the relevance of the situation under consideration to the
concept and practices of reparations under international law and the mechanisms for their
enforcement. In order to fill this gap and undertake the future exercise with a plausible
degree of success the reparations scheme in Darfur must be put within the context of
international law and universal norms and standards of justice.
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Indigenous Methods of Restorative Justice in Darfur
Restorative justice, including restitution of property, reparations of damage caused and
compensation for the victims is an integral part of the socio-cultural practices in Darfur. It is
practiced in a democratic and transparent manner through mediation and/or arbitration in
traditional courts of justice. The main objective of traditional justice in Darfur is to repair the
damage, maintain social cohesion, reduce tension and possible conflicts and ultimately help
preserve peace and security. The process is free of charge, easily accessible, expeditious,
reconciliatory and invariably acceptable to all members of the concerned communities.
Acceptability of the ruling of traditional courts carries with it the most cherished element of
satisfaction to the aggrieved parties and largely guarantees that they will not resort to
revenge. These characteristics accorded traditional justice an important role in organising
social life within and between the different communities of Darfur. Restorative justice is
natural and well inculcated in the collective psyche of the people of Darfur with their
different ethnic groupings and tribal affiliations. As such it has great potential to help heal
the deep wounds caused by the armed conflict in Darfur. It should be noted that traditional
justice in Darfur was influenced and consolidated by the famous system of written law that
was codified by Sultan Daali in the 16th century. This code is known as Qanon or Kitab
Daali which means the Daali Law and is essentially concerned with retributive justice.
According to the Daali Law there did evolve among the Fur people4 and their non-Fur
subjects a system of punishments by fines5 and provision for compensation to the victims.
Darfur society embraces a collective sense of responsibility towards reparations where the
entire community is involved. This is usually done in a spirit of solidarity when members of a
specific tribe(s) or clan(s) come together and make individual contributions towards an
occasional compensation fund and meet the obligations of the incriminated member or
members of that specific tribe(s) or clan(s). The most typical form of compensation is the
well-established concept of Diya or “Blood Money” which is common practice among all
ethnic groups in Darfur. Reparations and compensation in Darfur are in fact used as
mechanisms for conflict resolution and social reconciliation. For the people of Darfur,
reparations and compensation, as well as accountability are on some occasions symbolic in
nature. In this case, they are not meant to compensate the victims of tort or to repair the
damage caused but rather they were designed to guarantee non-repetition of the tort
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committed and therefore they are measures for the future and not simply punishments or
reminders of the past.
The governing principles, concepts and enforcement mechanisms of restorative justice in
Darfur are upheld by traditional chieftains but also by courts of law. Traditional chieftains
used to play a cardinal role in maintaining law and order, organising socio-economic life
including both intra and inter-communal set-ups. Present day traditional chieftains system in
Darfur had undergone profound transformation because of government-imposed “reform,”
behavioural change brought by modernization and because of politicisation and increased
government interference in their internal affairs. Other factors include the large scale nature
of the armed conflict in Darfur, the magnitude of the damage caused to the social system,
as well as the number of people and institutions involved in the conflict. The armed conflict
in Darfur created a situation which is beyond the ability of existing traditional structures to
handle. As such, traditional chieftains can no longer be expected to play their mediation
and/or arbitration role effectively unless a major locally-driven revival operation takes place.
Reparations in International Law and its Implication on the Situation in Darfur
In December 2005 the Darfur Relief and Documentation Centre (DRDC) prepared a
comprehensive Study Paper entitled: “Reparations, Compensation and Affirmative Action
and their Role in Peace-making and Peace-building in Darfur.” In that paper DRDC argued
that the right to reparations and compensation to individual victims of crimes or human
rights violations are well-established in international law and because of the international
nature of the crimes committed in Darfur, the question of reparations of the damage caused
in Darfur and compensation to the direct victims of the armed conflict in the region should
be addressed in accordance with international law and standards.
It is to be stated that the right to a remedy – including reparations and compensation – in
international law was reiterated on many occasions.6 As recently as December 2005, the
UN General Assembly adopted the Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law. Sudan is a State member of the UN
and the AU and, as such, is bound to respect the relevant provisions of the UN Charter and
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the AU Constitutive Act. Sudan is a State Party to major human rights treaties such as the
International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Convention on the Elimination of All
Forms of Racial Discrimination as well as the African Charter on Human and Peoples’
Rights. Sudan is, therefore, bound by international and regional human rights law to provide
an effective remedy, including reparations and monetary compensation, to the victims of the
armed conflict in Darfur whose human rights were massively violated.
In 1928, the Permanent Court of International Justice, which is the predecessor of the
International Court of Justice, made its landmark ruling and defined reparations as “The
essential principle contained in the actual notion of an illegal act – a principle which seems
to be established by international practice and in particular by the decisions of arbitral
tribunals – is that reparation must, as far as possible, wipe out all the consequences of
illegal act and re-establish the situation which would, in all probability, have existed if that
act had not been committed. Restitution in kind or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear, the award, if need be, of
damages for losses sustained which would not be covered by restitution in kind or payment
in place of it – such are the principles which should serve to determine the amount of
compensation due for an act contrary to international law.” 7
Reparations in international customary law involve specific measures of atonement, such
as restitution in kind, monetary compensation, and rehabilitation together with measures of
satisfaction and guarantees of non-repetition. In general, reparations require that a range of
measures be taken that are relevant to the particular context in order to ensure that the
victims’ rights are acknowledged, preserved, restored and given effect. In some situations,
such measures include monetary or other forms of compensation to redress the direct harm
done to the victims. Services such as healthcare, mental and psycho-social service and
recreation etc. are required to assist the victim’s rehabilitation. Often the State needs to
take symbolic action to acknowledge the injustice and harm caused to the victims of its
illegal or damaging acts such as offering a formal apology, disarming and demobilizing
former combatants, introducing legal and institutional reforms, strengthening the rule of law
and eliminating the causes of conflict and preventing their recurrence.8 Recently
international human rights law experts increasingly treat the questions of reparations and
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compensation to victims of abuse and violence during a society’s transition from armed
conflict or authoritarian rule, within the context of transitional justice. Transitional justice is
the concept that refers to what can be described as a range of long-term9 and short-term
objectives to address massive, widespread or systematic human rights abuses and it is
often associated with regime change or transition from a state of armed conflict to peace.
The short-term objectives of transitional justice refer to temporary judicial and non-judicial
processes to help heal the victims and narrow divisions in society that arise as a result of
human rights violations. Transitional justice measures and techniques are not uniform and
societies may apply those measures that better suit their specific contexts and needs.10
International Response to the Demands for Compensation in Darfur
To comprehensively address the situation in Darfur, international law experts have made
the point that reparations of the damage caused and compensation should go hand in hand
with accountability of the perpetrators of atrocities and the quest for justice for the victims of
the armed conflict in the region. As early as 2005, the International Commission of Inquiry
on Darfur, headed by Judge Antonio Cassese, reached this conclusion and accordingly
made two main recommendations for action by the UN Security Council11
1. That the Security Council refers the situation in Darfur to the International
Criminal Court (ICC). The Council accepted this recommendation and the
situation prevailing in Darfur was referred to the ICC on 31st March 2005.
2. That the Security Council creates an International Compensation
Commission for the victims of the conflict in Darfur.12 The Security Council
has yet to take action on this recommendation.
The Cassese Commission proposed that the International Compensation Commission on
Darfur be composed of 15 members, 10 of whom – including the Chairperson – would be
international experts appointed by the UN Secretary-General while the five other members
would be appointed by an independent Sudanese body. The Commission operates in a
three year mandate and should sit in Darfur. Members of the International Compensation
Commission on Darfur should be persons of established international reputation and
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expertise in criminal law, accounting, loss adjustment, and environmental damage. It was
proposed that the Compensation Commission comprises five chambers, each chamber with
three members; four of these chambers would deal with compensation for any international
crimes perpetrated in Darfur, while the fifth chamber would be concerned specifically with
the crime of rape13 and other forms of gender-based violence.
It would be essential that the AU/UN Joint Chief Mediator
for Darfur, Mr. Djibril Yipènè Bassolé, and observers of the
peace process persuade the negotiating parties to the
conflict in Darfur to base their work on reparations and
compensation on the findings and recommendations of
ICID. By doing so they would send a decisive and clear
signal about their resolve to bring justice to the victims.
Restitution and the Peace Process in Darfur
Restitution14 in its wider context including financial compensation was addressed during the
negotiation process that led to the DPA signing. Restitution in kind, including moveable
property and land, seems to receive unanimity of opinion and support of all the parties to
the conflict without serious divergence. Compensation is also supported by the major
political parties in Sudan.15 Paragraph 197 of the DPA provided for the establishment of
independent and impartial “Property Claims Committees” in both rural and urban areas. In
general, restitution as addressed in the DPA covers the following two areas:
1. The right to restitution of property and to restore and preserve traditional
ownership principles for land use, land ownership and land control; and
2. Reparations of the collective damage caused in Darfur and the right of
individuals to receive financial compensation for their material losses and
their emotional and personal suffering.
These two areas of intervention are now recognized – to different degrees – by the parties
to the conflict in Darfur and by observers alike. Recognition of the right of the victims of the
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conflict for restitution of land and other stolen or destroyed objects and property, as well as
reparations and financial compensation to individuals, date back to the early days of the
Inter-Sudanese Peace Talks on Darfur. Theses issues were addressed in the Declaration of
Principles for the Resolution of the Sudanese Conflict in Darfur (DoP) in July 2005.
Paragraph 10 of the DoP called for measures to “… compensate the people of Darfur and
address grievances for lives lost, assets destroyed or stolen, and suffering caused.”16 DoP
addressed the question of land and emphasized that: “Tribal Land ownership rights
(hawakeer) and other historical rights shall be affirmed within their historical borders.
Traditional mechanisms in Darfur will be considered consistent with the provisions of the
National Constitution.”17 It is to be noted that DoP directly linked the questions of restitution,
reparations and compensation to the “rehabilitation” and “reconstruction” of Darfur.
It appears that the road to a just political agreement and eventually a lasting peace in
Darfur is long and painstaking. Despite the declared commitment of the parties that: “…war-
affected persons in Darfur have an inalienable right to have their grievances addressed in a
comprehensive manner and to receive compensation. Restitution and compensation for
damages and losses shall necessitate massive mobilization of resources”18 yet serious
difficulties need to be addressed. One of the important challenge areas which are expected
to come to the fore during any future peace talks on Darfur is the question of financial
compensation to individual victims of atrocities and the manner in which the compensation
rewards will be administered. In November 2008 the People of Sudan’s Initiative on
Resolving the Darfur Crisis19 recommended that compensation to the victims of the conflict
in Darfur be paid on family basis rather than on individual basis (paragraph 3.1.) and that
payment of compensation money would depend on GoS’s ability to secure funds
(paragraph 3.6.). Such recommendations renege on the solemn recognition of the
“inalienable right” of the victims to “receive compensation” and represent regression from
the DoP achievement. Building the Darfur reparations scheme must be contingent upon a
negotiated accord based on the DoP’s fundamental achievement.
It would be desirable that the parties to the conflict in Darfur avoid consuming themselves in
discussing complicated technical details of the reparations scheme and rather they should
focus on reaching an agreement about the governing principles. Details of the reparations
scheme should be worked out by a specialized institution to be created for this purpose.
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This is because when the parties reach an agreement on the principle and demonstrate the
necessary political will to implement it then the implementation modalities would be worked
out with the same vigour and determination. However, the importance of reaching an
agreement on the principle does not mean that the parties to the conflict shy away or refrain
from outlining the basic aspects of the reparations scheme. For example, it is unavoidable
that the negotiators agree on the composition of the Compensation Commission as well as
the competence, quality, expertise and other criteria of its members. Other important
aspects that need agreement are the components of the Compensation Fund and area of
its intervention as well as the State’s institutions, entities, groups and individuals that would
make necessary financial contributions and the nature and percentage thereof.
Reparations and Compensation in the DPA – Critical Review
It is necessary to state that because of the sensitive nature of the questions of reparations
and compensation within the context of the conflict in Darfur and the risk that some spoilers
may use them as an appealing means to mobilize the victims of the conflict against future
arrangement for peace, these issues should, therefore, be entertained with utmost
seriousness during any future negotiations. Financial or other considerations should not be
given prominence over the strategic choice of maintaining peace, bringing justice and
upholding the rule of law and fundamental rights of the direct victims of the Darfur conflict.
The DPA provided for reparations under the rubric of “compensation” to the victims of the
conflict in Darfur. The victims were in fact described under the generic term “war-affected.”
These provisions are in paragraphs 197 – 213 of the agreement. While a broad definition of
victims is desirable as a means to ensure that justice is done to all those aggrieved,
however, careful and concise wording is necessary. The term “war-affected persons” is
vague and so vast that it could mean all kind of pretenders. It could include people who
illegally enriched themselves during the armed conflict in Darfur and those who were
impoverished because of appropriation of their wealth by looting. It could even include
violators of human rights as well as perpetrators of violence in the region and those who
lost business because of lack of commercial activities due to insecurity etc. It is, therefore,
obvious that careful and rigorous categorization of the groups and individuals entitled to
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reparations and compensation is an important means to ensure that justice is done to those
who suffered the most, without prejudice to other members of the larger society.
In addition to detailing the kind of tort and harm to be addressed by the Darfur reparations
scheme, the DPA envisaged the creation of two institutions whose role would be to resolve
compensation claims and to reward successful claimants. These two institutions are the
Compensation Commission and the Compensation Fund. The harms set out in the DPA
included not only loss of material wealth and property, but also “physical or mental injury,
emotional suffering or human and economic losses, in connection with the conflict.”20 This
broad category of damage needs to be strengthened by the inclusion of cultural and social
damage in order to be comprehensive enough and covers some key areas of intervention.
Major Shortcomings of the DPA on Reparations and Compensation
The reparations and compensation provisions in the DPA have five major shortcomings that
need to be addressed in any future agreement:
1. The DPA provided that the Compensation Commission (article 21, paragraph
201) – and to that effect the Compensation Fund (paragraph 210) – is to be
established by a Presidential Decree. In this regard, it is more reassuring to
the stakeholders, especially to the victims, to see to it that the Compensation
Commission and Fund are established and protected by a special law
enacted by Parliament. This is important because an institution established
by a Presidential Decree can be easily amended or repealed by a similar
decree from the President of the Republic.
2. The DPA contains no reference to the notion of an apology for the victims of
the conflict in Darfur which is an unfortunate omission. The notion of an
apology implies recognition of the humanity and dignity of the victims of tort.
It is directly linked to recognition of guilt on the part of the perpetrators and to
satisfaction and acceptance on the part of the victims which are necessary
steps toward forgiveness and reconciliation. A public apology from the State
carries with it an important moral commitment and responsibility to assure
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the victims that the whole process is genuine and sincere. An apology is,
thus, indispensible for peace, healing and social reconciliation in Darfur.
3. The DPA provided that no compensation claims can be made after 10 years
of its entry into force (paragraph 208). This provision is unjust and morally
unacceptable provision. It could deliberately be used to deprive some victims
and their descendants of their rights. For example, a child born in early 2005
and soon after its birth the village where it was born was attacked in a
military operation and all members of the child’s family and close relatives
were decimated and the family’s wealth was looted. It was established that
the atrocities committed against civilians during the attack on that village
represent war crimes and crimes against humanity. In law the child is entitled
to reparations for the damage caused to him/her in 2005. According to the
DPA this child cannot make any claim for compensation when he/she
reaches the age of adulthood in 2023.
4. The DPA provided that payment of compensation money is contingent upon
the capacity of the perpetrator(s) to pay monetary compensation, (DPA,
paragraph 205, “g”) and in paragraph 206 “c” it has linked payment of
compensation money to the identification of the perpetrator(s). The DPA has
thus relegated the role of the State towards successful completion of the
reparations scheme to a secondary status and instead it has left such an
important role to the government’s discretion.
5. A specific amount of US$30 million was earmarked in the DPA as the initial
compensation fund to be paid by the GoS. Soon after SLM-Abdelwahid and
JEM rejected the DPA, GoS promised to increase the compensation fund to
US$100 million. It is largely perceived that this amount represents a fraction
of the amount that a genuine reparations scheme for Darfur is expected to
entail. It is therefore unrealistic and discouraging, especially for the victims of
the conflict, to be left under the impression that a certain amount of money
has been fixed as the ceiling for the reparations scheme and that the whole
process will terminate when the earmarked fund is exhausted.
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Main Challenge Areas
1. The first challenge ahead, when the Darfur peace negotiations resume,
however, is to ensure that the issue of reparations of the collective damage
caused in Darfur, as well as financial compensation to individuals, receive the
attention and seriousness that they merit. The parties to the conflict should
demonstrate determination to bring justice to the victims in words and deeds.
To do so successfully they need to cast away their fears.
2. The future reparations scheme in Darfur should provide safeguards to protect
the most vulnerable groups of victims from discrimination, exclusion and
exploitation. It should particularly provide for the equal rights of women and
men, girls and boys to restitution, reparations and financial compensation. It
should also provide that the reparations scheme recognises the joint
ownership and rights, on equal footings, of both male and female heads of
households as explicit stakeholders in the reparations scheme and that the
restitution and reparations programmes, policies and practices thereon are
gender-sensitive.
3. "Restitution, reparations and compensation" are essentially legal terms and
as such they should not be confused with charity or other aid programmes.
This is necessary because for the Darfur reparations scheme to succeed it
needs to be placed within the context of law and justice.
4. Ample distance should be maintained between the rights of individuals to
monetary compensation for their losses on the one hand, and the overall
programmes for the rehabilitation and reconstruction of Darfur on the other.
In particular, financial compensation for groups and individuals should not be
diluted in other forms of redress, particularly in possible future affirmative
action programmes or any other agreed rehabilitation and reconstruction
plans that are designed to benefit all the people of Darfur including
pastoralists, sedentary farmers, etc.
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5. The parties to the conflict in Darfur – especially the insurgent movements –
should avoid falling into the trap that issues of reparations and financial
compensation are exploited for political or other sectarian interests. They
should properly address these questions in a way that would deter potential
spoilers of the peace process from using the victims’ concerns and fears as a
means to incite people using empty promises and ulterior motives to provoke
dissention and revolt against the future peace agreement. The language to
be employed by the agreement in this respect should, therefore, be clear and
concise to avoid possible misunderstanding, confusion or misinterpretation.
6. The parties to the conflict in Darfur need to agree on clear and solid language
that would serve as the political basis for the promulgation of a sound legal
framework in order to safeguard the achievement of an agreement in the
area of reparations and financial compensation. Such legal framework must
only be introduced and protected by an Act of Parliament.
7. The parties to the conflict in Darfur should subscribe to the conviction that
“justice has no price.” The Latin legal maxim states that: Ubi jus, ibi
remedium (where there's a right, there must be a remedy). This rule should
apply until successful entertainment of the last eligible claim for reparations
to the satisfaction of the claimants. Indeed, it is not in the interest of social
peace in Darfur to fix a financial ceiling or a time frame for the compensation
scheme in Darfur.
8. The parties to the conflict should agree that the State undertake to make
substantial and unconditional contribution to the Compensation Fund, and
whenever appropriate, the national business community and the Sudanese
society as a whole is encouraged to make voluntary contributions.
9. The parties to the conflict should also agree that victims who are entitled to
financial compensation and reparations in general are compensated
irrespective of whether or not the perpetrator(s) were identified and/or have
the necessary financial ability to meet their obligations.
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10. Proposal of a national Fund for Blood Money (Diya)21 to assist perpetrators
of criminal acts in Darfur i.e. those who are unable to pay Diya must be
carefully thought. Such efforts should not be seen as an attempt to reward
the perpetrators for their past acts instead of holding them accountable.
11. Retributive justice – and not only restorative justice measures – needs to be
agreed upon as an integral part of the overall reparations scheme in Darfur.
Retributive justice is based on the principle that people who have committed
human rights violations, or ordered others to do so, should be held
accountable according to law and must publicly confess guilt and ask for
forgiveness. Clear language on retributive justice should be included in the
future peace agreement emphasizing the commitment of the parties to the
conflict that accountability is necessary to: hold perpetrators responsible for
their past actions; deter further commission of atrocities; counter a culture of
impunity; and create an environment in which the perpetrators and victims
can realistically be expected to co-exist in peace.
12.Perhaps one of the most important challenges to be faced by the Darfur
peace negotiators is that financial compensation to victims of the conflict is
not a satisfactory answer to the needs of the victims or even matches the
level of destruction committed in Darfur and that an effective reparations
scheme needs to be complemented by additional measures. Such additional
measures and policies are widely known as affirmative action.
13.Affirmative action is in fact an important step to begin a genuine process of
post-conflict reconstruction, healing and emancipation of the victims of the
conflict in Darfur as well as to address any injustice suffered by the people of
the region since the British colonial rulers annexed Darfur to present day
Sudan in 1916. Affirmative action would, no doubt, help end the perceived
exclusion of the people of Darfur from genuine participation in the economic
and political life in Sudan, prepare them for reconstruction and development
of the country and lead to mutual respect and trust, national reconciliation
and eventually help reduce the risk of armed conflicts in the country.
21
Conclusion and Recommendations
Success of the peace-making and peace-building process in Darfur largely depends,
among other key areas, on the practice and response of the parties to the conflict to the
demands of the direct victims – albeit the declared demands of the main insurgent
movements – for reparations of the collective damage caused and financial compensation
to individuals. The reparations scheme in Darfur is unlikely to succeed unless it is
addressed through a comprehensive process that provides for the combination of both
international law and a revived local traditional justice system. Experience learned from the
DPA showed that contested provisions or weak and unclear language on sensitive issues
like reparations and financial compensation in any peace agreement on Darfur is harbinger
to the bleak future of such an agreement and a serious threat to the overall social fabric,
peace and stability in the region.
When addressing the questions of reparations and financial compensation to individual
victims during the forthcoming political negotiations on peace in Darfur, the following five
points are highly recommended as good will measures for consideration by the negotiating
parties. It is highly believed that an agreement on the proposed following measures would
inevitably send a positive signal from the negotiating parties about their commitment and
determination to serve justice to the victims:
1. The future peace agreement in Darfur should address the questions of
restitution, reparations and financial compensation in a separate protocol or
an additional protocol to the overall agreement rather than negotiating these
important issues as part of the Wealth Sharing Protocol.
2. Future negotiations on issues of reparations and compensation would have
the desired impact if they were to be based on the relevant findings and
recommendations of the 2005 report of the International Commission of
Inquiry on Darfur (Cassese Commission).
3. Legislative reform in Sudan is urgently needed. Genuine reform of relevant
legal instruments in Sudan should ensure that reparations for collective
22
damage and financial compensation to individual victims of serious violations
of human rights and fundamental freedoms, and in particular to victims of
ethnic cleansing, war crimes and crimes against humanity and other
atrocious acts committed during armed conflicts are adequately provided for
in the relevant Sudanese legislation.
4. The reparations and compensation scheme in Darfur should not only be
confined to restorative justice, as has been advocated in the DPA, but rather
it should be introduced within a comprehensive programme package for
affirmative action, justice, healing, emancipation and reconciliation of the
victims of the conflict.
5. The reparations and compensation scheme in Darfur needs to be reinforced
and consolidated with additional measures. In particular the scheme should
be strengthened by traditional forms of retributive justice and adapted
modern components of international law and justice.
6. Short-term and long-term provisions for transitional justice – as appropriate
to the specific situation of Darfur – would also play an important role as
complementary measures that go hand in hand with the reparations scheme.
It is therefore desirable that the reparations and compensation scheme in
Darfur be addressed within the broader framework of transitional justice.
23
Endnotes
1 Darfur Peace Agreement, http://www.sudantribune.com/IMG/pdf/Darfur_Peac_Agreement-2.pdf2 The International Commission of Inquiry on Darfur (ICID) was established by the UN Secretary General pursuant to Security Council Resolution 1564 of 18th September 2004 in order “… to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable.” The ICID report to the UN Secretary General dated 25th January 2005 can be consulted at http://www.ohchr.org/english/docs/darfurreport.doc3 International Center for Transitional Justice, Reparation and the Darfur Peace Process: Ensuring Victims’ Rights, page 1, http://www.ictj.org/images/content/8/8/886.pdf4 R.S. O’Fahey “Law, Compensation and Reconciliation in Darfur,” University of Bergen, 6th March 2006http://www.darfurcentre.ch/studies_research_papers/Law__Compensation_and_Reconciliation_in_Darfur.html5 According to Daali Law fines are levied for such offences as theft, adultery, fornication, and insult (Fur, Utang Jaaso). Fines were generally assessed in terms of three-year old cows (Fur, Toni), cloth (Dammur), iron hoes (Hashasha) or salt cones (Falgo). Crimes such as murder, inter-ethnic affray and the like were dealt with by the Sultans and the senior title-holders. The Sultan was always the final court of appeal and could overturn any previous ruling and the administration of justice formed large part of his functions. Op. cit. note 5.6 See the International Covenant on Civil and Political Rights, (Article 2 {3}), International Convention on the Elimination of Racial Discrimination (Article 6), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 14), Convention on the Rights of the Child (Article 39), Rome Statute of the International Criminal Court (Articles 19 {3} and 68 {3}). See also the 1948 Universal Declaration of Human Rights (Article 8), the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Article 21), which was adopted by the UN General Assembly on 29th November 1985 by means of Resolution (A/40/34). See also “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms,” final report of the Special Rapporteur, Mr. M. Cherif Bassiouni, submitted in accordance with Commission resolution 1999/33, to the UN Commission on Human Rights, UN Document (E/CN.4/2000/62) dated 18th January 2000.7 The Permanent Court of International Justice (1920 – 1942) was the predecessor of the International Court of Justice. The Court’s landmark judgement was reached in 1928 during the Chorzów Factory Case, Germany v Poland, page 40, http://www.worldcourts.com/pcij/eng/decisions/1928.09.13_chorzow18 Op. cit. at note 39 Some major long-term objectives of transitional justice include providing justice to victims and accountability for perpetrators; creating an accurate historical record for society; restoring the rule of law; reforming institutions to promote democratisation and human rights; ensuring that human rights violations are not repeated; and promoting co-existence and sustainable peace.10 The Encyclopedia of Genocide and Crimes Against Humanity (Macmillan Reference USA, (2004), vol. 3, pp 1045-1047. Reproduced at http://ictj.org/static/TJApproaches/WhatisTJ/macmillan.TJ.eng.pdf11 Op. cit. at note 212 ICID Report, Op. cit. at note 2, paragraph 649.13 Details of the reparations scheme as proposed by the ICID is in paragraphs 590 – 603 of its report, 14 Restitution was addressed in the DPA in Article 21, entitled “Urgent Programs for Internally Displaced Persons (IDPs), Refugees and other War-Affected Persons and Compensation for War-Affected Persons”paragraphs 194 – 198.15 Juba Declaration on Dialogue and National Consensus, issued by All Sudan Political Parties Conference, held in Juba, South Sudan, 26th – 29th September 2009 http://www.sudantribune.com/spip.php?article3264016 Declaration of Principles for the Resolution of the Sudanese Conflict in Darfur, Abuja, 5th July 2005, paragraph 10, page 2, http://www.africa-union.org/DARFUR/DOP%205-7-05%20new.pdf17 Ibid. paragraph 12, page 318 Darfur Peace Agreement, Compensation, paragraph 199, page 38. 19 The People of Sudan’s Initiative on Resolving the Darfur Crisis was an open-ended Consultative Forum convened by the GoS at Kinnana in central Sudan in October-November 2008. Some national political parties and civil society groups attended this Forum while others notable the Darfur rebel groups have boycotted it. The Initiative was sponsored and organised by the government under the chairmanship of President Al Bashir. Despite the conflicting arguments and positions assumed by the different participants on issues deliberated but the final outcomes were largely considered to reflect the government’s vision.20 Op. cit. at note 1, paragraph 200, page 3821 Op. cit. at note 19