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  • Darfur Relief and Documentation Centre

    The Impact of Restitution, Reparations and

    Compensation on the Peace Process in Darfur

    Critical Review of the Restitution

    Provisions in Darfur Peace Agreement

    By Abdelbagi Jibril

  • 2

    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 Crts-de-Pregny, 1218 Grand-Saconnex, Geneva (Switzerland)

    Tel: 0041 22 747 00 89 Fax: 0041 22 747 00 38

    E-mail: [email protected] Webpage: http://www.darfurcentre.ch

  • 3

    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).

  • 4

    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

  • 5

    Map of the Darfur Region and Areas

    Inhabited by the Main Ethnic Groups

  • 6

    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.

  • 7

    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 Darfurs

    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 day3 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

  • 8

    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 Darfurs 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.

  • 9

    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, expe