Submission to the African Union High-Level Panel on Darfur

Mr Thabo Mbeki, Chairperson
African Union High-Level Panel on Darfur
African Union

Your Excellency,

We wish to express our thanks to the African Union High-Level Panel on Darfur (AUPD) for its request for the views of Human Rights Watch on:

(i) What can and should be done urgently to conclude a comprehensive and inclusive Darfur peace agreement?;
(ii) What processes and institutions should be put in place to address the challenge of reconciliation and healing arising from the conflict in Darfur?; and
(iii) What steps should be taken to address the challenge of justice and the suppression of impunity, again arising from the conflict in Darfur?

Established in 1978, Human Rights Watch is known for its accurate fact-finding, impartial reporting, and effective advocacy, often in partnership with local human rights groups. Each year, Human Rights Watch publishes more than 100 reports on human rights conditions in some 80 countries. Human Rights Watch has worked in Africa since 1988, and on Sudan since 1998. In Sudan we have extensively documented and reported on human rights issues across the country, including the North-South conflict and implementation of the 2005 Comprehensive Peace Agreement, human rights abuses related to oil development, and on the crisis in Darfur. Human Rights Watch continues to conduct regular research missions to Sudan and neighboring countries and has extensive contacts both in and outside Sudan.

Since 2003, Human Rights Watch has published 17 major reports on Sudan and Darfur, as well as some 250 other documents. We also published a 753-page book in 2003,"Sudan, Oil and Human Rights," which documented the links between natural-resource exploitation and human rights abuses in Sudan.

Below we have set out our responses to the three issues on which the Panel has sought input: peace, reconciliation and healing, and accountability. However the three issues are, as the Panel has stated, deeply interconnected and mutually interdependent. History has shown repeatedly, including within Sudan, that peace without justice is rarely sustainable, and Human Rights Watch has every reason to believe this would be the case in Darfur.

(i) A Comprehensive and Inclusive Peace Agreement

All sectors and groups in Darfur should have a voice in peace negotiations, and any peace agreement should address the needs of the people of Darfur. Any peace agreement should include mechanisms that ensure the protection of human rights as well as accountability for past and any future abuses, and commitments from all sides to ensure security for civilians. The agreement should also include commitments by all sides to protecting human rights as set out in international human rights law and in Sudan's Interim National Constitution.

Inclusivity
Any strategy for securing a peace agreement for Sudan should ensure that not only all significant rebel factions, but that the people of Darfur are represented in a way that ensures they are able to express their wishes freely and in safety. Currently the only significant negotiations in relation to Darfur are the - now suspended - talks between the government and the Justice and Equality Movement (JEM). While a ceasefire between these two parties could reduce the risk to civilians from clashes between them, it is essential that this process does not result in another peace deal, such as the May 2006 Darfur Peace Agreement, which represents neither the agreement of key rebel factions nor the interests of the people of Darfur.

Accountability
Any peace agreement should provide for perpetrators of the most serious crimes in violation of international law to face justice before courts that meet international fair trial standards, including through proceedings before the International Criminal Court.

International law obligates states to investigate and prosecute war crimes, crimes against humanity and genocide. Human Rights Watch research over the past 20 years in many different countries has demonstrated that a decision to ignore atrocities and to reinforce a culture of impunity may carry a high price. In addition, rather than impede negotiations or a transition to peace as many anticipate, remaining firm on justice can yield short- and long-term benefits, while justice's predicted negative consequences often do not come to pass. Human Rights Watch research both in Sudan and elsewhere has demonstrated that peace agreements that fail to provide for accountability not only lessen the chances of that peace being sustainable, they encourage further atrocities.

During the more than two decades of conflict, Sudanese government forces and government-backed militia committed massive human rights violations against civilians in the south. Southern forces also committed serious abuses. While these were very well documented, in the Naivasha negotiations that preceded the Comprehensive Peace Agreement (CPA) in 2005, the mediators failed to press for inclusion of provisions for accountability. Human Right Watch stated at the time that:

By failing to put accountability and human rights high up on the Naivasha negotiating agenda, the "Troika"--the United States, Britain and Norway--mediators unwittingly encouraged government officials in Khartoum to believe that they could wage war against civilians in Darfur with impunity.[1]

This warning was ignored, and as a result the Khartoum government secured de facto immunity for their strategy of fighting insurgents by deploying abusive militias to attack civilians in Southern Sudan. As was predicted, the government continued to deploy similar tactics in response to the insurgency in Darfur.

Protection of civilians
As documented by Human Rights Watch and many others, civilians have borne the brunt of the violence in Darfur over the last six years. Since the Darfur conflict started, hundreds of Darfuris have told Human Rights Watch researchers that without a dramatic improvement in security and an end to violence against civilians, there is little hope of lasting peace and a return to normal life for the people in Darfur. The UN secretary-general reported in his June 9, 2009 report that even while talks continued in Qatar in May 2009, JEM and pro-government armed groups clashed repeatedly in North Darfur, causing hundreds of civilians to flee; and civilians were killed in crossfire between government soldiers and police, and between government forces and Arab militia.[2] The African Union-United Nations peacekeeping force (UNAMID) reported at least 12 incidents of sexual and gender based violence against 34 victims, the majority of whom described their attackers as dressed in military uniforms.[3] Human Rights Watch research on the underreporting of sexual violence in Darfur indicates that this is a fraction of the number of such attacks that actually occurred.

All parties to the conflict should urgently recommit to fulfilling their obligations to protect civilians. This will require not only reining in abuses by armed forces, allied militia and rebel soldiers, but also facilitating full deployment of UNAMID and full access of aid organizations to all those in need.

The realization of fundamental human rights for the people of Darfur
Long-term peace and security will not be possible in Darfur without addressing the root causes and drivers of the conflict, including the Sudanese government's continued marginalization and abuse of a large part of the population of Darfur, including those of Arab origin.

Despite repeated commitments by Sudanese President Omar al-Bashir and others in the majority National Congress Party to address many of these issues, and the enshrinement of international human rights standards in Sudan's Interim National Constitution, such commitments have not translated into real change on the ground.

Instead, while government and rebel forces continue to physically attack civilians, government authorities have increasingly cracked down on other rights, including freedom of speech and association. The February 2009 Human Rights Watch report, "It's an Everyday Battle - Censorship and Harassment of Journalists and Human Rights Defenders in Sudan," documented how since mid-2008 government security forces have stepped up harassment, arbitrary arrest and detention and other abuse of human rights defenders and others who seek to speak out about the situation in Darfur. Sudan's Government of National Unity (GNU) has also closed key Sudanese human rights organizations since the ICC issued an arrest warrant for President al-Bashir in March 2009.

Sudanese security forces have not only arbitrarily arrested and detained human rights defenders and journalists. The Special Rapporteur on human rights in Sudan reported in her June 1, 2009 report to the Human Rights Council that some 200 Darfuris arrested by the National Security Services in Khartoum after the JEM attacks in May 2008 are still unaccounted for.

National elections, currently slated for early 2010, provide a valuable opportunity to address some of these issues, but there are enormous hurdles to overcome if they are to be free, fair, legitimate and truly national. Neither the National Congress Party nor the National Elections Commission have yet made a clear public statement as to how, or if, elections will be held in Darfur.

Human Rights Watch believes the protection of civilians, the realization of fundamental human rights, and justice for grave crimes are not only prerequisites to lasting peace in Darfur, they are issues that the GNU, the rebel movements, and the international community, including the African Union, should urgently address regardless of the outcome of any peace process.

Recommendations regarding the peace process:

Representatives of all ethnic groups, including Arab groups, as well as all sectors of society in Darfur, women and younger people, should be genuinely and transparently consulted in relation to any peace agreement. Those consulted should be able to speak freely and without fear of retribution, and discussions should not be in the presence of government or rebel representatives nor national security officers, police or soldiers. Discussions should take place both bilaterally and multilaterally, between and across different groups.
The GNU, rebel movements and mediators should agree on a strategy and realistic timeframe for a peace process, and both facilitate and ensure the security of those taking part.
Any peace agreement should provide for full independent investigation into alleged violations of international human rights and humanitarian law by all parties to the conflict, and bring to justice, before fair, impartial, and independent courts - including through ongoing or future proceedings before the ICC - those accused of having committed or ordered such crimes, or who are responsible for such crimes as a matter of command responsibility;

Independent of the peace process:

The GNU should disband and disarm all abusive militia forces, and take all necessary measures to ensure that security forces end direct and indiscriminate attacks on civilians and otherwise comply with international humanitarian law.
The GNU should ensure that the members of police and military forces are vetted for past records of human rights abuse, and any individual found to be responsible for abuse be dismissed, disciplined, or prosecuted as appropriate.
Rebel movements should increase discipline among their forces and ensure that commanders and combatants responsible for serious abuses be appropriately punished.
All sides should facilitate full unimpeded access to humanitarian aid for all populations in need. The GNU should allow the return of all expelled agencies, and should recommit to its obligations under all existing agreements regarding the operation of aid agencies in Sudan, including its commitment to allow aid organizations to implement human rights and protection programs.
The GNU should fulfill its human rights obligations in accordance with international law, the CPA and the Interim National Constitution in Darfur, including wherever necessary reforming national legislation. The GNU should respect the rights to freedom of expression and association, should account for the whereabouts and condition of all human rights defenders and others currently detained incommunicado, and end any harassment and abuse of individuals for human rights related activities.
The National Elections Commission, all parties to the conflict and civil society representatives should as soon as possible convene a discussion on the feasibility of free and fair elections in Darfur;
The GNU, as well as rebel leaders where relevant, should commit to implementing all legal, practical and security measures necessary to ensure that both the voters and political opposition parties in Darfur are able to fully and freely participate in such elections when they occur.

(ii) The Challenge of Reconciliation and Healing

Under international law, the government of Sudan has a legal duty to provide reparation for serious violations of international human rights and humanitarian law.[4] Compensation for loss and redress for other harm, including physical or mental injury, will also be essential to reconciliation and long term healing. In Sudan there are well-established customary mechanisms for dealing with both reconciliation and reparation, for example the establishment of local peace building committees. However such mechanisms should be adapted or replaced with more formal institutions where necessary to ensure they are transparent, consistent and equitable. Given the nature and scale of violations of human rights in Darfur, the GNU should provide adequate financial and other support to such mechanisms, in addition to the payment of compensation itself.

In addition the government should urgently establish a mechanism to resolve ongoing disputes over land ownership, which has become increasingly contentious over the course of the conflict. The rights and needs of both those displaced from their land and of any new occupiers, where such occupiers have not acted illegally, must be taken into account.

A truth commission could also make an important contribution to societal healing by reducing the collective resentment that fuels so many recurring conflicts, and by combating the creation of a revisionist history through accurate and thorough documentation of crimes committed during the conflict. Courts will not be able to document anything beyond a small fraction of victim experiences; a pivotal means of societal healing will therefore likely occur outside the courtroom.

While having the potential to play an important value-added role, truth commissions are complementary, and not an alternative or substitute, to prosecutions for the most serious crimes. Moreover, as identified in the Office of the United Nations High Commissioner for Human Rights rule of law tool on truth commissions, a truth commission is only appropriate if there are conditions of peace and security on the ground, if the government is committed to allowing a serious inquiry into past abuses, and if victims and witnesses have an interest and are able to meaningfully participate in the process.[5] It is clear that in Darfur, where the Sudanese government continues to fight rebel forces and commit human rights abuses against Darfuri civilians, these conditions do not currently exist. In addition, international expertise on truth commissions would be needed to assist in the establishment and functioning of any truth commission for Darfur.

It is important to reiterate that neither reparations nor a truth commission can take the place of prosecutions for serious crimes in Darfur, and that it will be impossible for either to take place effectively before lasting peace and security is established in Darfur.

Recommendations:

The GNU should establish and fund committees and other institutions, with a broad and balanced membership, with sufficient resources, authority and time to address compensation and redress for violations of international law committed in Darfur. The GNU should establish a committee or other institution particularly to address disputes over land ownership in Darfur.
The GNU should establish a significant compensation fund to support such reparations.
A truth commission on human rights abuses in relation to the conflict in Darfur since 2003 should be explored, but only in addition to ICC or other prosecutions for serious crimes and only if conditions of peace and security exist and meaningfully participation in the process is possible. Any truth commission effort should draw from international expertise and assistance.

(iii) The Challenge of Justice and the Suppression of Impunity

Until impunity is addressed, Human Rights Watch believes Sudanese government armed forces, pro-government militias and rebel groups will continue to commit attacks on civilians and other abuses. Thus obtaining justice by prosecuting those responsible for serious international crimes is crucial for obtaining lasting peace in Sudan.

The International Criminal Court represents the only real opportunity for justice for the most serious crimes in Darfur, particularly those for which senior government officials are responsible. All parties in Darfur should cooperate in full with the Court. At the same time, the GNU should make significant efforts to improve national accountability.

National accountability lacking
The GNU has done little to genuinely improve domestic accountability. On June 7, 2005, one day after the ICC prosecutor announced he was opening investigations into the events in Darfur, the Sudanese authorities established the Special Criminal Court on the Events in Darfur (SCCED). But, as documented in the Human Rights Watch report, "Lack of Conviction - The Special Criminal Court on the Events in Darfur," as of June 2006, authorities brought only 13 cases before these courts, all involving low-ranking individuals accused of minor offenses such as theft. In the sole case relating to a large-scale attack on civilians, the court merely convicted the accused of theft that occurred after the attack.

In August 2008, Sudan's justice minister, Abdelbasit Sabdarat, appointed a special prosecutor and legal advisers in each of Darfur's three states to investigate crimes that occurred from 2003 onward. In October 2008, Sudanese justice officials announced that the special prosecutor had completed an investigation into allegations against Ali Kosheib, a militia commander who is wanted by the ICC for war crimes and crimes against humanity and in February 2009 the Special Prosecutor for Darfur stated that three men including Kosheib had been charged in a case related to events in Deleig, Mukjar, Bandas and Garsila. However, there has since been no indication of any progress in this or any other case, and the special prosecutor has complained publicly that he has had difficulty accessing and interviewing victims.

An additional hurdle is that, despite recent revisions, Sudan's criminal code still does not allow for liability on the basis of command responsibility and Sudanese law provides immunities and other provisions that could preclude meaningful prosecution of war crimes and crimes against humanity. The Sudanese military in particular benefits from broad de facto and de jure immunities for criminal acts.

The GNU should urgently address these issues, including through thorough institutional and legal reform, and task the appropriate authorities to carry out a full investigation into all serious crimes committed in Darfur and prosecute - in accordance with international human rights standards - those responsible.

Given the absence of meaningful justice efforts in Sudan to date, significant questions over the political will necessary to pursue domestic prosecutions remain. As a result, international expertise and assistance would likely be a crucial component to advancing domestic efforts. This could take many forms, including through appointment of some international judges, prosecutors and defense counsel to work alongside Sudanese jurists. At the same time, as discussed below, the ICC remains the only and best forum for prosecuting those alleged to be responsible for the most serious crimes of concern to the international community as a whole, including the cases it has already initiated.

International Accountability
Even with greater efforts at the national level, the ICC is likely to remain the only forum in which those responsible for the gravest crimes in Darfur, particularly senior figures in the Sudanese government, may be brought to justice. The pervasive impunity domestically underscores that national courts are not willing or able - nor are they likely to become willing and able in the foreseeable future - to provide meaningful redress to victims of the worst crimes.

In addition, an effort to establish some form of hybrid international-national court to address the same cases being pursued by the ICC would be inconsistent with ensuring justice for victims. Establishing new mechanisms would likely result in major unjustifiable delay and thus be inconsistent with fighting impunity as provided for in article 4 of the African Union's constitutive act without any obvious benefit. The ICC has already conducted crucial investigative work and made substantial advances in particular cases to see justice is done. Of course, as the Darfur situation is already before the ICC, whether any national or hybrid effort would be sufficient to preempt the ICC's jurisdiction would be a matter for the ICC judges to decide. It is useful to recall that the International Commission of Inquiry on Darfur established by the UN Security Council in 2005 concluded on the basis of its investigation that the ICC was the only appropriate forum to try the most serious crimes committed in Darfur.

Darfuri Support for the ICC Prosecution
Many Darfuris have told Human Rights Watch that they wish to see the ICC investigation and prosecutions continue.

On March 4, 2009 Human Rights Watch interviewed a number of Darfuris about their views on the warrant the ICC had issued that day for President al-Bashir. The leader of a Sudanese non-governmental organization told us that the warrant "sends a decisive signal to all individuals who participated in the rapes, mass killing, pillaging, and burning of villages in Darfur that they are no longer immune from prosecution. This decision also put to the test the world resolve to protect civilians in need and to combat impunity. It is thus morally and legally binding upon all states member of the United Nations organization to cooperate with the ICC in implementing its mandate and to prosecute the perpetrators of the crimes committed in Darfur."

Another, a Sudanese human rights defender, said: "This decision is historically such a big decision... It paves the way for justice, peace, healing, redress, reconciliation, and all the hopes and intentions of this nation."

A Darfuri refugee who had been forced to flee the fighting in 2004 told us: "The warrant, it is so important. That man is a criminal. His people came in the night and they killed people for nothing. They dropped bombs from the sky. They did terrible things. Every month he gave guns and money and horses to Janjaweed to go and kill people - and if they did kill people he gave them more money. Even Arab tribes, even Janjaweed, they lost their lives for nothing too. I am so happy there is a warrant - every day I pray that this man is caught and taken to The Hague. Many people from Darfur will want to celebrate but it is difficult - there are other people there who are working with the government or who are brainwashed and they don't understand what is going on - they might be angry. But if you kill hundreds of thousands of people for nothing then you should get justice."

These accounts reinforce the view that justice for the worse crimes is essential to both peace and reconciliation in Darfur. African civil society groups echoed strong support for the ICC to provide justice when national courts are unable or unwilling to prosecute in statements signed in May 2009 at conferences in Banjul and Cape Town.

Failure of the GNU to Cooperate with the ICC
Despite the crucial work of the ICC in fighting impunity in Darfur, the Sudanese government has persistently refused to cooperate with the Court. The three warrants, for President Omar al-Bashir, for then-State Minister of Humanitarian Affairs Ahmed Haroun and for Janjaweed militia leader, Ali Kosheib, are outstanding. Haroun has recently been awarded a new government post as governor of Southern Kordofan.

In response to the case against al-Bashir, the government has adopted a two-pronged response. One has been to seek to put blame on the ICC and distract attention by closing down international and national organizations that were providing over 40 percent of the humanitarian aid in North Sudan.

The other response has been to seek to shore up support for a Security Council deferral of the case in accordance with article 16 of the Rome Statute of the ICC.

The GNU has argued that a deferral is necessary to obtain a peace agreement among the warring parties in Darfur. However, there is no plausible connection between the continuing failure of peace talks and the request for an arrest warrant. The deadlock is rooted in the lack of political will on all sides to achieve an agreement, and those factors have nothing to do with the International Criminal Court's case.

Sudan and its allies have also argued that the court is unjustly targeting African leaders. However, while the ICC's current investigations are entirely in Africa, three out of the court's four investigations were referred voluntarily by the governments where the crimes were committed. The fourth situation, Darfur, was referred by the UN Security Council. The ICC has not taken up any African situation on its own initiative.

The landscape in which international justice is applied has admittedly been uneven. Some of the worst crimes perpetrated since 2002 have been committed in states that are not parties to the court and are thus outside the ICC's jurisdiction, including in Sri Lanka, Burma and Iraq. Moreover, unfortunately, at this point leaders of powerful states are less likely to be prosecuted by international courts when they are implicated in serious crimes. Nevertheless, justice should not be denied where it can be achieved relatively more easily because it is politically impossible to ensure justice for all. Rather, the reach of accountability should be extended to wherever serious crimes in violation of international law occur. This can be done in part by expanding participation in the ICC.

We are aware of the African Union's position in support of deferral of the case against President al-Bashir. In our view, deferral would risk denying redress to the victims of horrific abuses, and would set a very dangerous precedent with implications for both Sudan and far beyond. Bartering away accountability for the most serious crimes would be a betrayal to the victims, and would encourage those alleged to be responsible for major atrocities in future to combine threats and negotiation, as the Sudanese authorities are now attempting to do, to avoid the rule of law.

While a deferral is limited to a renewable 12-month period, once a deferral takes effect, it would be extremely difficult to subsequently terminate it. There likely would be enormous pressure to renew it in a year's time and then again at the expiration of every succeeding year. This could encourage the Sudanese authorities to threaten more violence to extend a Security Council deferral, making the council hostage to threats of violence against noncombatants on the ground.

The Sudanese government and the leaders of rebel movements should cooperate fully with the ICC in accordance with the provisions of the Rome Statute and the relevant Security Council Resolutions. This is vital to justice and peace for Darfur.

Recommendations:

All parties to the conflict in Darfur should commit to cooperating in full with the ICC, as well as respecting the right of citizens to give evidence to the ICC.
The GNU should reform legislation to remove broad immunities for members of the security forces, and to ensure that individuals can be prosecuted on the basis of command responsibility. The GNU should give priority to the development of an effective, independent and impartial national justice system;
The GNU should instigate a full investigation into all serious crimes committed in Darfur and ensure domestic prosecutions - in accordance with international human rights standards - of those responsible.

Human Rights Watch welcomes the efforts of the African Union High-Level Panel on Darfur to ensure broad consultation and input from both Darfuris themselves and others with expertise in Sudan. However, consultation alone will not be enough to secure an end to human rights abuses and impunity in Darfur. Any peace agreement needs to address protection of civilians and the realization of human rights in Darfur, as well as real accountability for past crimes. However these issues should not wait for the signature of a peace agreement; the Panel should press the GNU and all parties to the conflict to urgently ensure both security and justice for the people of Darfur today.

Yours sincerely,

Georgette Gagnon
Executive Director, Africa Division

Richard Dicker
Director, International Justice Program

[1] Human Rights Watch Briefing Paper, Sudan: Human Rights Accountability Must Be Part of North-South Peace Agreement, November 2004, https://www.hrw.org/en/news/2004/11/18/sudan-human-rights-accountability-must-be-part-north-south-peace-agreement (accessed June 28, 2009)

[2] Report of the Secretary-General on the deployment of the African Union-United Nations Hybrid Operation in Darfur, June 9, 2009, S/2009/297

[3] Ibid.

[4] See UN 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, Adopted and proclaimed by General Assembly Resolution 60/147, 16 December 2005, http://www2.ohchr.org/english/issues/remedy/principles.htm (accessed June 29, 2009)

[5] Office of the United Nations High Commissioner for Human Rights, "Rule-of-Law Tools for Post-Conflict States: Truth commissions," HR/PUB/06/1, 2006, http://www.ohchr.org/Documents/Publications/RuleoflawTruthCommissionsen.pdf (accessed June 29, 2009), pg. 2