TEXT: Recommendations of the AU Panel on Darfur

October 22, 2009 (WASHINGTON) – The African Union Panel on Darfur (AUPD) has submitted its recommendations in early October on ways to resolve the crisis in Sudan’s Western region.

The AUPD, which is chaired by former South African President Thabo Mbeki and included Pierre Buyoya, former President of Burundi, General Abdulsalami Abubakar, former Head of State, Federal Republic of Nigeria, Alhaji Kabir A. Mohammed (Nigeria), former State House Counsel and Special Envoy of former President Olusegun Obasanjo on the Trial of suspects of war crimes and human rights violations in Darfur, Hon. Judge Florence Ndepele Mwachande Mumba (Zambia), Judge of the Supreme Court, Ahmed Maher El Sayed, former Foreign Minister of Egypt and Rakiya Abdillahi Omaar (Somalia), Director, African Rights.

The commission met with all parties to the conflict as well as regional players before submitting its report which was not yet made public.

Below is the text of the recommendations made by the panel as obtained by Sudan Tribune.

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I. INTRODUCTION

Because it was concerned to solve the Darfur conflict, the African Union (AU) Peace and Security Council decided to establish the High?Level Panel on Darfur to examine the situation in Darfur and to submit recommendations on how best to accelerate the advance towards peace, reconciliation and justice in Darfur. The Panel began its work in March 2009. Over a period of six months, two of these being additional to the original mandated period, it undertook four missions to Sudan where it spent forty days, and held wide consultations, meeting with a range of Sudanese stakeholders in Darfur, Khartoum and Juba. The Panel also visited the countries of the region, meeting with the leaders of neighboring States as well as with representatives of the Armed Movements and the international community. The Panel was asked:

“To examine the situation in depth and submit recommendations to Council on how best the issues of accountability and combating impunity, on the one hand, and reconciliation and healing, on the other, could be effectively and comprehensively addressed, including through the establishment of truth and/or reconciliation Commissions, with the active involvement of the AU and its relevant institutions and, as necessary, the support of the larger international community.”

As already discussed in this Report, the Panel believes that the roots of Darfur’s crisis lie in the neglect of the Sudanese peripheries by the centre of power and wealth in Khartoum, a legacy that predates independence and has continued to date. Characterized by the inequitable distribution of wealth and power, this imbalance has fomented tensions and conflicts in Sudan and given rise to the situation that the Panel has been called upon to investigate. The Panel believes that all the various overlapping layers of conflict must be addressed, but above all that the fundamental problem of Sudan must be confronted if lasting peace for Darfur is to be realized. The Panel defines the fundamental problem of Sudan as “The Crisis of Sudan as manifested in Darfur.”

This section of the Report contains Recommendations to the mandating authority, the African Union. They are intended to suggest the range of interventions that will be required for the people of Sudan, with the constructive support of others, to deal with the causes and effects of the complex events that have unfolded in Darfur.

The Recommendations cover, amongst other issues, the process for reaching a Global Political Agreement (GPA); the important issues of justice and reconciliation; the promotion of dialogue among Darfurians; mobilizing Sudan’s neighbors; the Sudan General Elections and the Southern Sudan Referendum; measures for the implementation of the agreements; support for the AU?UN mediation process; and the role of UNAMID and the African Union in promoting and consolidating peace in Darfur.

II. BROAD OBSERVATIONS

The Panel was greatly encouraged by the fact that all the Sudanese stakeholders it consulted expressed with candour their commitment to peace and reconciliation. The Panel is therefore convinced that with the necessary support, the people of Sudan will be able to bring the conflict in Darfur to an end in an inclusive, peaceful and expeditious manner. The Panel observed how the people of Darfur, at the grassroots, have taken numerous initiatives to try to settle their differences, to achieve local peace and reconciliation, and to put in place the building blocks for a political settlement at a higher level. It also strongly sensed the impatience and frustration of the Darfurian people with the slow pace at which the leaders, on all sides, are approaching the urgent task of concluding a comprehensive and durable political settlement.

While there are differences about which should come first between justice and peace, every stakeholder equally expressed his or her expectation and determination to see that justice is done and impunity eradicated.

Stakeholders hold the firm view that the conflict in Darfur is political in nature. As a consequence, they believe that a political agreement is required to solve the conflict, and therefore that a military solution is neither possible nor desirable.

In addition, and of great significance to the process of negotiations, these stakeholders agree on a number of important issues, including:

a) The urgency to pursue peace through negotiations, rather than force/military struggle;

b) The requirement for an inclusive process of negotiations involving the Government of Sudan, the Armed Movements, the IDP’s and refugees, political parties, civil society organizations including women, the native administration, nomads, the neighbors of Sudan and the rest of the international community;

c) The necessity for the Government of Sudan to genuinely acknowledge the suffering that the people of Darfur have endured over the past six years;

d) The need for the Armed Movements, at a minimum, to agree on a common negotiating position, repudiating personal agendas and attachment to partisan, tribal and clan affiliations, and engage in negotiations;

e) The importance of agreeing on an Agenda for the negotiations;

f) Retaining Darfur as an integral part of Sudan;

g) Enabling Darfur to enjoy an equitable share in the distribution of power and wealth in
Sudan and the importance of having its developmental needs met;

h) The possibilities of promoting peace, justice and reconciliation through traditional processes at the local level, provided that the process is not manipulated for narrow political ends, is left to the Darfurians, and involves neutral, non?partisan native administration leaders;

i) The imperative to respond immediately, and without waiting for the conclusion of the GPA, to the various demands of peace, justice and reconciliation at all levels within Darfur, and between Darfur and the central Government;

j) The need to promote the GPA amongst the people of Darfur generally.
288. The Panel conducted its work against a background of many existing Agreements towards a political solution in the Sudan. To date, there have been various agreements relating directly to Darfur or having some bearing on the possible solution of the conflict in Darfur.

These include the Humanitarian Ceasefire Agreement of April 2004 (N’djamena); the Declaration of Principles for the Resolution of the Conflict in Darfur (DoP) of July 2005 (Abuja); the Darfur Peace Agreement (DPA) of May 2006 (Abuja); the Eastern Sudan Peace Agreement (ESPA) of October 2006 (Asmara); as well as the overarching Comprehensive Peace Agreement (CPA) of January 2005 (Naivasha and Nairobi).

In this context, the Panel believes that the Sudanese political players have, over the years, established a framework within which to pursue the objectives of peace, reconciliation, justice and accountability in Darfur. If criticism is leveled at these earlier attempts, it would be, among others, that there has been inadequate implementation of the relevant Accords.

The current grave situation in Darfur is a manifestation of the broader political challenges facing Sudan as a whole. Indeed, many of the Sudanese interlocutors spoke of “the Sudan crisis in Darfur,” arguing against the formulation “the Darfur crisis in Sudan.” For this reason, the Panel is of the view that any attempt to bring lasting solution for Darfur and Sudan as a whole must be sensitive to this reality. In addition, an inclusive and participatory peace process for Darfur will in turn contribute to the process of democratic transformation in Sudan.

The Darfur conflict has regional and international dimensions to which due attention must be paid. These involve some of Sudan’s immediate neighbors, in particular Chad, and those further afield. All parties should equally pay serious attention to these dimensions of the conflict, especially through promoting the implementation of agreements Sudan has signed with its neighbors and by continuing to work towards the normalization and harmonization of Sudan’s relations with all other countries. There is need for the international community, broadly defined, to re?examine its understanding of the causes, the nature and the consequences of the conflict in Darfur and Sudan, and to identify correctly the appropriate solutions, for meeting the country’s urgent need for peace, reconciliation and development.

Africa has an enormous stake in seeing to the restoration of peace in Darfur. Although Sudan’s neighbors are particularly vulnerable to instability within Africa’s largest country, the entire continent is affected by the difficulties Sudan is experiencing. Consequently, Africa cannot stay away from Darfur, and the African Union must therefore continue to play an active part in the search for answers for and with Sudan. However, the process of improving
understanding of the situation in Darfur and Sudan must accept the Sudanese people as the primary players in the determination of the future of their country, with all the others serving as supporters of Sudanese initiatives.

III. APPROACHING PEACE, JUSTICE AND RECONCILIATION

It is self?evident that the objectives of peace, justice and reconciliation in Darfur are interconnected, mutually interdependent and equally desirable. However, it is also equally self?evident that the most urgent desire of the people of Darfur is to live in peace and security. This is a universal Sudanese demand, particularly underlined by the Internally Displaced Persons.

Nevertheless, all Sudanese stakeholders also stressed the need for concerted action to deliver justice, which they argued would itself consolidate the pursuit of peace. Given the nature of the conflict in Darfur, and especially the extreme violence and widespread violations of human rights the people of Darfur have experienced, their approach is appropriate and commendable.

This means that even as the peace negotiations are taking place, action should be undertaken to investigate the serious crimes that have been committed in Darfur, and to put in place measures to prevent the commission of fresh crimes. Such measures could give priority to preserving evidence for later proceedings, and should include robust arrangements to protect witnesses and to encourage victims of sexual crimes in particular to come forward.

It is essential therefore, that the question of national and international justice, as well as reconciliation, should form part of the Agenda of the negotiations for the Global Political Agreement. Those negotiations should give careful consideration to how the Sudanese people should deal with the past and secure sustainable justice for the future and, in that process, should take into account the principles and specific recommendations on justice and reconciliation set out in these Recommendations.

A. ROADMAP TO A GLOBAL POLITICAL AGREEMENT

The Panel suggests a Road Map designed to provide immediate security for the populace while the talks commence, and equally importantly, to create an enabling environment in which the people of Darfur can participate fully in the process of determining the agenda and outcome of the dialogue about their future. The Road Map should therefore consist of the following steps:

a) The Government of Sudan and the Armed Movements should negotiate and agree to a Suspension of Hostilities Agreement/Truce, to be supported by unilateral measures undertaken in good faith and aimed at reducing violence in Darfur while the process of negotiations are underway;

b) Adoption of a Framework Agreement involving the Government of Sudan, the Armed Movements, political parties, civil society organizations, IDP’s and refugees, the native administration, and the nomads of Darfur (collectively, “the Sudanese Parties”);

c) Negotiation of a Permanent Ceasefire, including an Agreement on Comprehensive Security Arrangements by the Government of Sudan and the Armed Movements, which takes into account all the sources of violence and insecurity in Darfur;

d) Negotiation of a Global Political Agreement by the Government of Sudan, the Armed Movements, political parties, civil society organizations, IDP’s and refugees, the native administration and the nomads of Darfur;

e) The negotiations for a suspension under (a) need not delay the subsequent steps, especially the adoption of a Framework Agreement. Moreover, the negotiations under (c) and (d) can take place simultaneously;

f) The Joint Chief Mediator should give urgency to consulting with the stakeholders, in preparation for the comprehensive negotiations, and in that regard, should take into account the findings of the Panel. This should include consideration and resolution of the important issue of how the various constituencies would participate and be represented in the negotiations. The Suspension of Hostilities Agreement

The Government of Sudan, the Armed Movements, and other armed groups and militia, individually or collectively, shall agree to and negotiate a Suspension of Hostilities (SH) to create an environment conducive to the dialogue to conclude a Framework Agreement (FA) and a Global Political Agreement (GPA). The principal goal of the Suspension of Hostilities Agreement will be the immediate suspension of all armed action and related activities.

As articulated in previous agreements, the Parties would do everything within their power to ensure that:

a) Violence is reduced;

b) Civilians are protected and not subjected to violence, intimidation, threats or forced displacement, and that the protection of women and children is given the highest priority;

c) Humanitarian assistance is provided safely to IDP’s and other civilians in need;

d) An environment that would enable IDP’s and refugees to return voluntarily and safely to their places of origin is created;

e) The Parties co?operate with UNAMID and its verification bodies in monitoring the suspension of hostilities.

f) The Parties which agree to a Suspension of Hostilities will:
i. Retain their weapons and armed units;

ii. Continue to hold the positions they occupied at the beginning of the
negotiations;

iii. Take no?action to change the military facts on the ground, such as re?arming, recruiting or repositioning military units;

iv. Avoid hostile propaganda;

v. Submit to unconditional verification by UNAMID.

Simultaneously with the processes of negotiating a suspension of hostilities with the armed groups, the Government of Sudan should take unilateral steps to reduce violence in Darfur. These steps would include: the consolidation of command and control over the security organs operational in Darfur; the strengthening of the Sudan Police Force; the accelerated establishment of community police services for IDP’s and people returning to villages and cooperation with UNAMID monitoring activities.

Alongside the above, UNAMID should extend non?military logistical assistance to the relevant Armed Movements and provide training and capacity building in ceasefire and related operations to the commanders of Armed Movements. This assistance and training would be extended to all groups that agree to suspend hostilities.

Once the Joint Chief Mediator has issued invitations to all the relevant constituencies to participate in the process of negotiations indicated above, the African Union should approach the United Nations Security Council to declare as terrorist organizations such Darfur armed groups as would refuse to participate in the negotiations.

The Framework Agreement

The Sudanese Parties should adopt a Framework Agreement which will commit the Parties to a process of negotiations to end the conflict in Darfur. Unless amended by the Parties, the “Declaration of Principles (DoP) for the resolution of the Sudanese Conflict in Darfur” as adopted by the Parties in Abuja, Nigeria, on 5 July 2005, should serve as the Framework Agreement. Such amendment may serve to clarify the Agenda of the negotiations to conclude a Global Political Agreement and establish the modalities for the conduct of the negotiations. Accordingly, the GPA would be negotiated on the basis of the Framework Agreement.

The Parties that would negotiate and adopt the Framework Agreement are:

(a) The Government of Sudan;

(b) The Armed Movements;

(c) Political parties;

(d) IDP’s and refugees;

(e) Traditional leaders/native administration;

(f) Civil society organizations;

(g) The nomads of Darfur.

The Mediator should establish a Reference Group composed of the AU, IGAD, the League of Arab States (LAS) and the UN which will observe the negotiation process towards the adoption of the GPA.

All delegations of the Parties should have sufficient representation amounting to at least 30% of women, given the disproportionate burden women have carried as a result of the conflict.

The AU?UN Mediator, in consultation with the Parties, specified in paragraph (25) above, should determine the venue and duration of the negotiations. Permanent Ceasefire and Security Arrangements

Immediately after the adoption of the Framework Agreement, the Parties above should enter into negotiations to conclude a Permanent Ceasefire (PC), including Comprehensive Security Arrangements (CSA). The central objective of the PC/CSA will be permanently to end all hostilities among all the armed belligerents, including not only the forces of the Government of Sudan and the Armed Movements, but also tribal militia, and foreign armed elements, ensuring that only the constitutional forces of the State of Sudan have the authority to bear arms, as would be provided for by law.

The Permanent Ceasefire would come into force once it has been incorporated into the Global Political Agreement and supersede the Suspension of Hostilities Agreement/Truce which would have remained in force throughout the period of negotiations.

Consulting Darfurians during Negotiations

The people of Darfur recall the consequences of their exclusion from the negotiations of the Darfur Peace Agreement signed in Abuja, and are determined not to allow a repetition of that experience. Recognizing this reality, it will be necessary to afford the people of Darfur an opportunity to make representations to the negotiating Parties on the Agenda items for discussion at the talks. This will enable Darfurians as a whole to take ownership of the outcome of the negotiations about their future.

For this reason, parallel to the Negotiating Forums that will negotiate the Framework and Global Political Agreements, there should be established a Darfur Consultative Convention (DCC), through which the views of the people of Darfur can be obtained. The DCC would convene to receive reports from the formal Negotiating Forums, and feed its views into these Forums.

The establishment of the DCC, and its effective functioning, should be facilitated by the DDDC, including providing resources and expertise, in consultation with the relevant components of UNAMID and the Joint Chief Mediator.

Notwithstanding the importance of the DCC process, it is important that the Government of Sudan, the Armed Movements and all political players make additional efforts to promote a sense of national belonging, as one of the fundamental and necessary initiatives for the resolution of the Darfur conflict.

The Panel considers the need for the involvement of the Darfurian population in the peace talks to be self-evident; it will ensure that the priorities and aspirations of the people of Darfur and, as far as possible, the wider Sudanese constituency, is brought to bear on the negotiations. Whilst military matters are predominantly for the belligerents, non?belligerents have a contribution to make on all the other issues.

It will be for the Mediator, in consultation with representatives of the Parties, to work out the exact modalities for the selection and participation of representatives of non-belligerent parties. The DDDC, which has acquired experience in convening representatives of civil society and other stakeholders within Darfur, can play a key role in this process, working with UNAMID to support the negotiation process.

The Global Political Agreement

The Sudanese Parties should enter into negotiations to conclude a Global Political Agreement, which would address all the Agenda items identified in the Framework Agreement and incorporate the Permanent Ceasefire and Comprehensive Security Arrangements. (Below we make various proposals relating to the work of the Joint Chief Mediator.)

B. ADDRESSING THE ISSUE OF JUSTICE AND IMPUNITY

The people of Darfur understand “justice” broadly to encompass processes of achieving equality, obtaining compensation and restitution, establishing the rule of law, as well as criminal justice. They will therefore expect a package of interventions which deal with all these aspects of justice, and which do not prefer any one measure above the other. Road?Map for Justice and Reconciliation

Delivering justice, promoting reconciliation and encouraging recovery and healing for the suffering the people of Darfur have endured requires a comprehensive, integrated, systematic and innovative approach which is anchored within the legal system of the Republic of Sudan, drawing from the diversity of the country’s legal heritage, its constitutional values and commitments under international law. It will also require a strengthening of the existing system with new mechanisms, including a special criminal chamber which shall be a hybrid court drawing on the expertise of qualified and appropriate judges from outside Sudan.

As already pointed out, it is neither possible nor desirable to build a barrier between the objectives of justice on the one hand, and reconciliation on the other. By linking Justice and Reconciliation, the Panel is making suggestions to enhance the prospects of reconciliation in order to complement initiatives on justice, and not as a substitute for robust legal measures capable of responding to the urgent and complex legal needs in Darfur. Reconciliation itself is not feasible without the political will to create an enabling environment of peace, security and economic recovery, once again highlighting the profound inter?linkages between peace, justice, development and reconciliation.

An Integrated Justice and Reconciliation Response

The Panel considers that an integrated Justice and Reconciliation Response to Darfur (JRRD) is urgently required to deal with the conflict in Darfur. It should encompass a broad range of interventions reflecting the diverse justice and reconciliation needs, as well as the requirement to adopt effective and coordinated processes and institutions. The measures would include:

a) Comprehensive, independent and integrated national criminal justice processes, which shall include investigations and re?invigoration of all aspects of the Special Criminal Court on the Events in Darfur (SSCED) as the principal forum for delivering criminal justice for crimes relating to the conflict in Darfur;

b) A Hybrid Criminal Court which shall exercise original and appellate jurisdiction over individuals who appear to bear particular responsibility for the gravest crimes committed during the conflict in Darfur, and to be constituted by judges of Sudanese and other nationalities;

c) Reconciliation and truth telling mechanisms;

d) Compensation programmes and other forms of reparation for losses incurred during the conflict, giving victims a fresh start;

e) Measures for ensuring the safety and dignity of witnesses and participants in the processes of the JRRD, in particular victims of rape and sexual violence;

f) Provision for effective co?ordination between the different institutions and
mechanisms envisaged by the JRRD, especially so as to avoid conflicts of jurisdiction;

g) Other measures for strengthening the justice sector in Darfur to deal with post?conflict violations;

h) Promotion and dissemination of information concerning all aspects of the JRRD through outreach programmes, especially within Darfur;

i) An effective national mechanism for overall supervision of the implementation of the JRRD, ensuring integration of the system nationally and within the states of Darfur.

Criminal Justice Processes

Criminal justice will be a significant, though not sufficient, pillar in the justice and reconciliation framework for Darfur. Currently, the criminal justice response to Darfur is ineffective and confusing and has also failed to obtain the confidence of the people of Darfur. It will therefore require changes to be introduced within the Sudanese legal system to provide effective accountability for the different levels of criminal participation. Alongside the formal system of national and hybrid courts, traditional justice mechanisms should be applied to deal with appropriate crimes and perpetrators at the community level.

A Hybrid Court

In order to facilitate the establishment of a Hybrid Court, the Government of Sudan should take immediate steps to introduce legislation to allow legally qualified non?nationals to serve on the judiciary of Sudan (c.f. section 23, National Judiciary Act, 1986). In this connection, the Panel notes that the Constitution of Sudan does not expressly prohibit non-Sudanese nationals from being appointed to the judiciary of Sudan, and would not therefore need to be amended.

The proposed Hybrid Court would consist of a Hybrid Criminal Chamber, which should be composed of panels of highly qualified and suitable individuals of Sudanese and other nationalities. The formula for nominating non?Sudanese nationals, and for constituting the judicial panels of the Hybrid Court, as well as for the deployment of prosecutorial and investigations support, would be proposed by the AU.

The Hybrid Court should be supported by dedicated prosecution, investigation and registry functions. Qualified Sudanese individuals would be joined by a staff, comparable in seniority and role, to be nominated by the AU, to serve in key functions of the Court. As indicated below, in making such nominations, the AU would consult widely to obtain recommendations for nominees. The Hybrid Court should operate within the national criminal justice system of Sudan and the JRRD in particular: its functions would be additional and linked to the system of special courts discussed in this Report.

To support the work of the Special Courts across the three states of Darfur, the Government of Sudan should establish a body for overseeing and coordinating comprehensive investigations relating to the entire conflict in Darfur. This function will be necessary to avoid duplication of investigations and to provide a structure within which decisions about the processes or proceedings an individual may be subjected to can be undertaken, and to ensure harmonization of working practices.

The investigations should reflect the full pattern of crimes and abuses committed during the conflict in Darfur, and should pay due attention to sexual crimes.

The AU should delegate to the investigations body qualified persons to work alongside Sudanese to provide the necessary range of skills for investigating and prosecuting international crimes, and particularly for sexual crimes.

The AU should, in consultation with the Government of Sudan, delegate jurists or judges to sit on the Special Courts, either as observers or members of the bench, as the case may be. The AU should be responsible for initiating and overseeing this process.

The specific functions of the observers and staff to be delegated to support the Special Courts should be determined through the consultation between the AU and the Government of Sudan. The observers and staff should be required to submit regular reports to the AU and the Government of Sudan.

The Role of the AU in Nominating Judges and Legal Personnel

It would be the responsibility of the AU to initiate and establish the system for engaging the Government of Sudan on the formula and process for constituting the mixed judicial Panels and nominating legal officers for the Hybrid Court, and for delegating any observers or personnel for the SSCED.

The AU criteria for the identification of individuals for appointment should include: proven professional competence in criminal law and procedure, and experience in the function (judicial, prosecutorial, investigative, or administrative) for which the appointment is made, capacity to adapt to the legal system of Sudan, and a fair gender balance. Candidates for nomination should not be to African individuals.

In the selection of candidates for judges, observers or senior personnel, the AU should seek the advice of internationally respected judges or jurists or international organizations, and should publish its consultation process.

The AU should set up a mechanism, in consultation with the Government of Sudan, to oversee the process of the deployment of non?national staff and for receiving reports on the working of the hybrid arrangements generally.

Utilizing Sudanese Legal Expertise

To address the current needs, the Government of Sudan should mobilize all available human resources. In this connection, the Panel noted that many experienced and qualified Sudanese judges were previously prematurely retired by the current Government. Some have remained within Sudan in private legal practice or other capacities and others have pursued judicial and other legal careers outside Sudan.

The Panel believes that it would be prudent, and would also serve as a gesture of reconciliation, if some of these professionals were reinstated to judicial office, or their expertise were otherwise utilized in the implementation of the justice and reconciliation measures that are to be adopted. The Panel would therefore strongly recommend to the
Government of Sudan that willing former judges and other competent legal professionals should be invited to handle cases within the JRRD.

Measures to Advance Criminal Justice

For the delivery of criminal justice for crimes in Darfur, the Government should take steps to provide:

a) An adequate body of substantive law, consistent with the Constitution, and which reflects international crimes;

b) For the removal of legal and de facto immunities and other legal impediments to prosecutions, such as periods of limitation;

c) An independent and credible investigations component;

d) Guarantees of all fair trial rights, including adequate legal representation and, where necessary, legal aid for suspects and accused persons;

e) Enhanced procedural and evidential provisions to enable the effective and timely delivery of justice, as well as the participation of witnesses and victims in judicial processes;

f) Special measures, including legislation, for dealing with rape and other sexual crimes at all stages of the criminal justice process;

g) Measures to protect witnesses and victims participating in proceedings;

h) The appointment of a sufficient number of qualified and experienced personnel to undertake judicial and investigative functions, and the provision of training and capacity building for justice personnel;

i) Procedures and rules for co?ordination between the different courts and functions within the criminal justice system, as well as between institutions of the criminal justice system and the other institutions and mechanisms envisaged by the JRRD;

j) Adequate resources for delivering timely and meaningful justice.

Traditional Justice Mechanisms

Alongside the formal prosecutions, the JRRD requires the identification and recognition of the most appropriate traditional mechanisms of justice to deal with those perpetrators who appear to bear responsibility for crimes other than the most serious violations. Particular measures and strategies, and where necessary, legislation, should be adopted to ensure that traditional justice measures operate fairly and do not exclude the concerns of any group wishing to participate in justice proceedings. The communities of Darfur should be consulted on the measures to be adopted.

Common Principles of Adjudication

The following principles should apply in the formal courts, traditional courts and the proceedings of the TJRC:

a) All adjudication and exercise of judicial powers with respect to the violations relating to the conflict in Darfur, and in accordance with the JRRD, should be exercised independently and should not be subject to the control or influence of third parties;

b) In the conduct of proceedings, the effective participation of all classes of victims should be promoted, consistently with principles of fair trials and due process;

c) Measures should be taken to protect witnesses and victims during all proceedings and to secure their dignity. Particular attention should be paid to the needs of victims of sexual crimes;

d) Procedures, substantive laws and proceedings should promote acts of reconciliation, restitution and other reparations by convicted persons.

The International Criminal Court

The International Criminal Court is a court of last resort, which complements the national judicial systems. It is also a court of limited capacity. This means that even when deploying its full resources, it can only deal with a few individuals out of any situation of which it is seized. It follows that where widespread crimes have been committed, the overwhelming majority of potential criminal cases must be dealt with by the national system. This is simply a reflection of the functional limitations of the ICC. It is important that all stakeholders should realize this, and therefore focus on the vital importance of strengthening national legal systems. The principle of complementarity under the Rome Statute in any event gives precedence to national systems, even when a situation has been referred by the Security Council. This means that the ICC is obliged to take into consideration the fact that a State has taken or is taking effective justice measures to deal with relevant crimes. Any credible measures adopted in a national system would also be of interest to the Security Council in reaching any decisions with respect to the situation in Darfur and the Sudan more generally. The role of international justice more generally should be on the agenda of the Global Political Agreement.

C. ADDRESSING THE ISSUE OF RECONCILIATION

Reconciliation can assume various expressions and must be realized within the communities of Darfur, in accordance with their values and using the institutions in which they have trust. The need for reconciliation with respect to Darfur arises from the scale of the harm and injustice that has been suffered by Darfurians during the conflict, and more broadly from historical injustices. Reconciliation, as a process of confronting and overcoming enormous personal and communal losses, grief, pain, bitterness and anger, in order to rebuild trust among communities and peoples, requires more than just a single mechanism. It reflects a change of attitude which includes a willingness to confront and learn from the past.

Reconciliation will be promoted by the extent to which justice is seen to be done, and by the willingness, individually and collectively, to acknowledge responsibility for past violations and mistakes, to express remorse and to make reparations. At the political level, demonstrating good faith in the negotiations, and in the implementation of the Global Political Agreement, will contribute to reconciliation, as shall serious steps taken by the Government of Sudan to reverse the marginalization of, and destruction in, Darfur.

Within Darfur, there are particular and destabilizing grievances relating to inequitable allocation of land, or access to land resources, by certain communities. Lasting solutions will need to be found to secure access to land resources for all the population groups of Darfur. The problems associated with land need to be considered further during the negotiations.

Reconciliation must also find expression within formal justice institutions. Thus
individual acts of reconciliation, relating to a wrong that also amounts to a crime, ought to be taken into account or promoted within the criminal justice proceedings. This requires that the necessary procedural linkages should be established between the institutions of justice and any mechanisms of reconciliation.

Truth, Justice and Reconciliation

The Panel considers that a Truth, Justice and Reconciliation Commission (TJRC) would constitute an essential component of the strategy for promoting reconciliation with respect to Darfur. A TJRC should therefore be considered and endorsed by the Global Political Agreement and the people of Sudan generally. The TJRC should be established by legislation, to enable the investigation and the establishment of as complete a picture as possible of the nature, causes, consequences and extent of gross violations of human rights committed during the period of the conflict in Darfur from 2002 to 2009.

The TJRC should:

a) Be independent and composed of persons of high standing and moral integrity agreed to by the Parties to the GPA, and who should include Darfurians as well as jurists and women;

b) Provide an opportunity for all Darfurians, in particular, and the Sudanese in general, to make representations on all matters relating to the conflict in Darfur;

c) Afford victims an opportunity to relate the violations they suffered;

d) Allow those who might have committed serious crimes to admit their personal involvement in the commission of these crimes, apologize to victims, express remorse and seek pardon or otherwise cooperate with the work of the Commission;

e) Have the power to grant pardons to individuals, on application, and on specified conditions;

f) Have the power and capacity to order or extend individual and collective compensation or other reparation to the victims, taking into account other compensation and reparation mechanisms;

g) Make recommendations aimed at preventing a return to conflict and the commission of gross violations of human rights in future;

h) Make any necessary recommendations for promoting national reconciliation with regard to Darfur;

i) Report its findings and recommendations to the nation;

j) Structure itself and adopt appropriate methods of work in order to fulfill its functions effectively.

Delivering Social And Economic Justice

Measures to Aid the Return of Displaced Communities

The end of the conflict will enable the displaced population, including refugees, to exercise their right to return to their original homes and locations of residence. As they return, many are likely to encounter difficulties. All affected Darfurians are entitled to restitution of properties that have been expropriated, to compensation for loss or blighting of property, as well as to other forms of reparation for harm suffered as a result of the conflict.

In this regard, the Government of Sudan, assisted by UNAMID, should take steps to relocate people who have illegally occupied villages and land evacuated by IDP’s and refugees to enable the rightful owners to re?occupy their land. The Government should consider establishing a Standing Body, including representatives of IDP’s and repatriated refugees, to investigate land ownership and occupation. More generally, the Commission should examine the question of land alienation and resettlement, and identify mechanisms which will allow disputes arising from land to be settled in a satisfactory manner.

Working together with UNAMID, the Government of Sudan should engage the IDP’s and refugees to facilitate their voluntary return to their homes. This requires provision of adequate protection and the necessary conditions of safety and security, as well as the provision and rehabilitation of services and amenities in the areas of return.

Humanitarian Assistance for the Interim Period

Whilst the negotiations for ending the conflict are ongoing, and the actions required under the JRRD are being undertaken, the Government of Sudan, cooperating with UNAMID, the AU, UN and other humanitarian actors, should take urgent steps to:

a) Meet the humanitarian needs of Darfurians living within the camps;

b) Improve security inside and in the vicinity of these camps;

c) Meet the humanitarian needs of persons who live outside the IDP camps, including pastoralists;

d) Meet the humanitarian needs of communities who live in areas controlled by the Armed Movements;

e) Create the conditions for the voluntary and secure return to their localities of IDP’s and refugees;

f) Provide alternative options for residence, livelihoods and services for those IDP’s who prefer to remain in or close to urban centres;

g) In support of the above, the Darfur Joint Assessment Mission (D?JAM) should now revive its activities to assist the transition from humanitarian intervention to recovery and development.

Compensation

In the negotiations, the Parties should adopt principles and mechanisms for ensuring adequate, accessible and equitable compensation (individual and collective), restitution and other forms of reparation for the various types of individual and collective harm suffered by Darfurians during the conflict.

The Government and the international community should commit themselves to
resourcing adequately the process of return and resettlement of displaced persons and refugees and for the provision of restitution, compensation, reparations and rehabilitation of communities.

Promoting Reconciliation within Darfur

The need to promote reconciliation must animate all efforts and programmes to bring recovery to Darfur. It is impossible to conceive of reconciliation without people engaging with one another and citizens contributing to debate about the future of communities and society. The responsibility for pursuing reconciliation lies with all the people of Darfur; without their active involvement, all efforts at reconciliation will flounder. All political actors and the Government bear a particular duty to promote reconciliation in Darfur.

The Darfur?Darfur Dialogue and Consultation (DDDC) has been established as a Sudanese process that facilitates local peace and reconciliation. It can, and does, play an important role in encouraging various reconciliation measures and can also facilitate Darfur stakeholders to organize their representation in higher?level peace processes. In its future programmes, the DDDC should build on the hearings the Panel has conducted.

The transition of the DDDC to an exclusively Sudanese process should start soon and the DDDC should eventually be constituted as an independent Darfurian mechanism for local conflict management, with continuing support from UNAMID. In the meantime, the DDDC should act as a vehicle to allow Darfurians to address the root causes of the conflict and key issues including land and nomadic routes; IDP’s; recovery, reconstruction and development and reconciliation. The outcome of these consultations should enrich the peace process.

Representative and Effective Local Governance

The capacity of the people of Darfur to use local mechanisms to promote justice and reconciliation, and the ability of the Government to implement constructive policies in Darfur with regard to resettlement, restitution, development, reparations and on justice itself, depend on how people perceive and relate to the civil service and the native administration.

From the numerous complaints the Panel heard from the people of Darfur, it is clear they do not regard what currently exists in Darfur as a strong, politically neutral system capable of responding to their problems, needs or aspirations. In this context, the Agenda of the Global Political Agreement should include a review of local government in Darfur, in order to establish structures which are judged to be credible, accessible, effective and accountable to the people of Darfur.

D. AGENDA FOR THE NEGOTIATIONS

It is important to emphasize that all of the above key issues, as shall be adopted by the African Union, as well as the important matter of the implementing mechanisms for the Agreement, which is dealt with below, should form part of the Agenda for negotiations at the talks for the Global Political Agreement.

E. ENGAGING AND MOBILISING THE SUB?REGION

It is not possible to end the conflict in Darfur without engaging the sub?region, and especially without normalizing the relations between Chad and Sudan.

The AU must seek the implementation of existing Agreements, as they relate to the relations between Sudan and its neighbors, and specifically Chad. This can either by done by reviving the functions of the Dakar Contact Group, with respect to Chad and Sudan, urgently to engage the two Governments, as well as other countries, with a view to enabling the two countries to settle their differences. In addition, the Panel calls for a coherent and holistic regional approach for promoting durable peace and stability in the region. In this respect, the Panel calls on the African Union, working closely with the relevant regional organizations and in collaboration with the United Nations and other concerned actors, to take the necessary steps to promote and implement such an approach.

F. THE CHALLENGES AHEAD

Sudan General Elections, the Referendum and Darfur

Sudan is faced with the two seminal moments of the 2010 General Elections and the 2011 Referendum on self?determination in Southern Sudan, both of which are of historic importance to her future. The General Elections may impact on the current governance arrangements which underpin the vitally important CPA and lead to new power?sharing arrangements, including a new Government of National Unity. The Referendum will decide whether Sudan remains a united country or splits into two, with South Sudan opting to be an independent country.

Darfur is an integral part of Sudan and Darfurians must be able to participate in national democratic decision making. National decisions taken without the full participation of Darfurians will suffer from a deficit of democratic legitimacy. To enable the people of Sudan to approach the next important phase of their history as one nation, without other distractions, there is an urgent need to secure a definitive peace settlement for Darfur before the 2010 General Elections and to ensure nationwide legal and security conditions to allow political activity to be freely conducted. In this respect, the Panel draws attention to the 2008 National Elections Act (Act No XI of 2008) which includes many provisions which, if implemented, would make a decisive contribution to ensuring that the 2010 Elections are free and fair.

The AU and UN process to facilitate peace in Darfur should therefore act with this time frame in mind, dictated by sovereign decisions that the people of Sudan have taken. It is imperative that the AU and the UN should diligently and expeditiously discharge their responsibilities towards the Sudanese and African people as a whole, by helping to bring the Darfur conflict to a speedy end.

G. RESPONSIBILITIES OF THE AU?UN MEDIATION

The conflict in Darfur will be ended through a process of negotiations involving principally the people of Sudan, and mediated by the AU and the UN. The Sudanese people in general have accepted both these propositions. This places the AU?UN Joint Mediation at the centre of the effort to bring the conflict in Darfur to a definitive conclusion, and with the weighty responsibility of determining the future of Darfur and Sudan, with the consequences that this entails for Africa. Accordingly, it is of critical and strategic importance that the AU?UN Joint Mediation should be properly positioned to discharge its mission.

This requires that the Principals, the AU and the UN, should:

a) Satisfy themselves that the Mediation is fulfilling its obligations and responsibilities in accordance with its Mandate and that it has a clear, considered and precise strategy to respond to its Mission;

b) Work with the Mediation to determine a broad time frame within which it aims to conclude the process of negotiations and communicate this to the Sudanese stakeholders/negotiating Parties;

c) Determine the processes according to which the Mediation should submit regular reports to the Principals, reflecting what would have been done consistent with the agreed negotiations strategy;

d) Put in place and promote the processes by which the Mediation should cooperate and liaise effectively with UNAMID and its relevant component parts, as well UNMIS and MINURCAT, as may be required;

e) Ensure that the Mediation has the human, financial and logistical resources to enable it to fulfill its obligations, taking into account the scale of its work and the time frame within which it should conclude its mediation;

f) Take all necessary steps to promote the stature and standing of the Mediation by enlisting national, regional and international cooperation with the Mediation, and explaining its mandate to act on behalf of the AU and the UN. As a corollary, the Mediation should take steps to keep the Sudanese public informed about the process of negotiations;

g) Establish a Joint Mechanism to support and monitor the work of the Mediation, with a view to enhancing the effectiveness of the process, while avoiding micromanaging the Mediation.

H. PROMOTING A NATIONAL CONSENSUS

The peace process should be undertaken in as transparent a manner as possible in order to promote support for the process amongst the population and to render violence less attractive as a means of achieving political objectives. At the same time, just as the people of Darfur will need to be mobilized to engage with the dialogue process, more generally, the Parties to the negotiations should make plans to promote the process and outcome of the GPA across the Sudan as a whole, and should include the detail of such plans in the Framework Agreement as well as the Global Political Agreement. In this way, the people of Sudan, who have borne the brunt and cost of the war, would be empowered to hold their leaders accountable for pursuing and respecting the peace.

I. FOLLOW UP MECHANISMS

Darfur Implementation and Monitoring Commission

An agreement is only as good as the extent of its implementation, and the Sudanese people have repeatedly been disappointed in the incomplete and tardy implementation of peace agreements. Ensuring that an agreement is honored is as important as reaching that agreement in the first place.

The AUPD therefore proposes the creation of a Darfur Implementation and Monitoring Commission (DIMC) to oversee the implementation of the GPA. The exact composition, leadership, operational structure and functions of the D?IMC should be negotiated and agreed as part of the GPA, taking into account the scale and complexity of the responsibilities arising from the GPA and the principles of inclusivity, participation, representation for women and international involvement.

The Role of the African Union

Recognizing that the resolution of the Sudanese crisis in Darfur is primarily a matter for the Sudanese people themselves, the African Union, on account of the responsibilities it has already assumed with respect to Darfur, as well as under the CPA, and because of its obligations in representing the people of Africa, must continue to exercise a leadership role. The burden of these responsibilities should be shouldered without delay.

The current leadership functions of the AU with respect to Sudan include:

a) Exercising joint responsibility for the operation of UNAMID along with the United Nations;

b) Providing support and guidance to the JCM, in partnership with the UN; and

c) Providing oversight of the implementation of the CPA, including the exercise of self-determination in Southern Sudan, so that the future of the Sudanese people is secured in a manner that ensures human rights, democracy, peace, stability and development.

Arising out of the work of the Panel, the AU would now be required to assume a fourth responsibility: to ensure that the Panel’s Recommendations, once adopted by the PSC, particularly those directed at the AU, are fully shouldered, and the necessary measures to enable their full and timely implementation are adopted expeditiously.

For the AU to fulfill these strategic and technical tasks, its political leadership and institutional capacity needs to be re?invigorated. The AU would need to pay particular attention to:

a) Enhancing the capacity, within the AU Headquarters in Addis Ababa, to support the implementation of the Recommendations. Given the significance Sudan will assume for the AU over the coming years, the AUPD recommends the strengthening of capacity within the Commission and in particular, the establishment of a special unit, within the Peace and Security Department, to support the AU’s increased engagement with Sudan;

b) Equipping the AU Liaison Office in Sudan to play a greater support role in the Sudanese peace processes.

The Role of UNAMID

The Panel recognizes the critical role of UNAMID in the protection of civilians in Darfur, the monitoring and implementation of ceasefire and security arrangements, the promotion of peace, stability and reconciliation, and the facilitation of humanitarian assistance. During its visits to Sudan, the Panel was able to observe for itself the valuable contribution that UNAMID is making to improve the lives of Darfurians. The Panel, however, noted that in order for UNAMID to fulfill its mandate and tasks, it requires greater capacity.

The Panel is encouraged by the positive impact that UNAMID has had, even though it remains short of its full deployment. It urges troop contributing countries and other UN Member States to provide, without further delays, the balance of forces and assets, which are considered indispensable for the Mission to fulfill its mandate to protect civilians.

The Panel notes the continuing difficulty that UNAMID is experiencing in obtaining essential assets which were promised by the UN Security Council. In particular, although attack helicopters were approved in April 2007, it is only Ethiopia that has provided any to date. The Panel recommends that the required assets, including helicopters, be provided.

Given that a large proportion of UNAMID activities relate to police work, the Panel proposes that the civilian police component of UNAMID be further strengthened, including accelerating the tasks of training for community police services for IDP’s in camps and those returning to their villages of origin.

The Panel observes that as the pattern of conflict in Darfur changes, and opportunities for local peacemaking and reconciliation grow, the role of the civilian components of UNAMID take on increasing significance. The Political Affairs Department, Civil Affairs Department, Human Rights and DDDC all need to be fully resourced.

Although UNAMID was not initially given a mandate for Humanitarian Affairs, it has a paramount responsibility in overseeing the security of humanitarian agencies. After the expulsion of international humanitarian agencies in March 2009, it also assumed a de facto humanitarian role. Given this development, the Panel proposes that UNAMID take on the authority for the co?ordination of international humanitarian efforts in Darfur, acting together with the Government of Sudan and the humanitarian agencies and organizations.

The Panel observes that the reporting and analysis of security incidents and political situation provided by UNAMID is an invaluable resource for informing the AU PSC and UNSC and should be reflected in the positions these two bodies adopt on issues relating to Darfur.

(ST)