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: info@darfurcentre.ch 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