Annex 1
Justice Africa Background Briefing Note:
Darfur Conflict, June 2004
OVERVIEW
1. The war and massacres in Darfur have
shocked the conscience of the world. The atrocities and humanitarian
crisis are a rebuke to humanity. However, in contrast to the international
response to the comparable massacres and forced displacement in
the Nuba Mountains in 1991-92, and the Rwanda genocide of 1994,
the international community has been quick to react, and condemn.
It has been somewhat less quick to provide assistance and put
in place a mechanism for a political settlement.
CAUSES OF
THE WAR
2. The origins of the conflict in Darfur
lie deep in the history of the region. Although there are links
to the war in the South and parallels with that war, there are
also marked differences. It is temptingly easy to analyse the
Darfur conflict through the lens of the South and describe it
as (another) attack by "Arabs" on "indigenous black
Africans". This is simplistic, misleading and can be dangerous,
in that it feeds into a racist dynamic that is in danger of tearing
apart the Sudanese state. This section will analyse three elements
to the causation of the war: land, unresolved local disputes,
and national political factors. First, an overview of Darfur's
ethnic composition is needed.
ETHNICITY IN
DARFUR
3. From the 16th century to 1916, Darfur
was an independent sultanate. The ruling group was the Fur, occupying
the slopes of Jebel Marra mountain and surrounding areas. The
Fur expanded south and west, and absorbed other smaller ethnic
groups. Both Arab and non-Arab groups (who are almost all physically
and racially indistinguishable from the Fur) intermixed with the
Fur, with intermarriage and complementary economic activities.
The Fur are mostly farmers, the Arabs are mostly herders; though
richer farmers could invest in livestock and become herders (even
"becoming Baggara [Arabs]") and herders could settle
and "become Fur". Entire clans straddle ethnic divides.
In addition to the Fur there are numerous other ethnic groups
(about 35 in total), including Masalit, Zaghawa, west Africans,
Berti, Tama, Gimir, Tunjur, Meidob, Daju, Birgid, Burgo, etc.
The concept of "indigenous Africans" is unknown in Darfur
and would be a laughable notion had it not been seriously introduced
by outsiders during recent years.
LAND IN
DARFUR
4. A key issue in the conflict is land.
When the British colonised Darfur in 1916, they introduced the
idea of tribal "dars" or homelands. Under this arrangement
ethnic groups were given defined territories, within which their
paramount chiefs had jurisdiction over land allocations. This
arrangement had two major problems. One was that it was never
formally recognised in Sudanese land law. The second was that
in the central belt of Darfur, nomadic groups were not granted
their own dars. (The Baggara Arabs of southern Darfur were awarded
dars.) This was because the northern herders utilised pastureland
adjacent to villages. An ethnic map of this region, which includes
most of the lands dominated by the Fur, Masalit and Berti, would
resemble a chequerboard, with one set of squares representing
farms and inhabited by Fur, Masalit or Berti, and the other representing
pastures, across which the nomads would traverse with their animals.
The nomads in question would include Zaghawa and Meidob from the
desert edge, plus Arab camel herders, namely Beni Hussein, Zayadiya
and the three clans of the northern Rizeigat: Jalul, Ereigat and
Mahamid.
5. The land issue became a source of conflict
in the early 1980s, due to expanding population pressure using
up reserves of cultivable land, farmers encroaching on pasture
land (and enclosing pastures with thorn fences for their own livestock),
and ecological degradation forcing herders to look further afield
for pastures for their animals. Relatively amicable relations
between different communities began to deteriorate. This was especially
a problem for the Arab camel herders who had no land they could
call their own "dar": they had inadvertently been denied
one of the basic requirements for customary citizenship, namely
jurisdiction over an area of land.
6. The camel-herding Arabs' search for land
is one of the principal reasons for the current conflict. The
fact that militiamen are cutting down fruit trees and destroying
irrigation ditches—both signs of a claim to land ownership
in the region—indicates their land hunger. The fact that
it is the northern camel-herders who are the spearhead of the
Janjawiid, while the southern Baggara cattle herders are less
engaged or wholly uninvolved, indicates the importance of the
award of a tribal "dar".
DISPUTE SETTLEMENT
7. Crime and inter-communal dispute are
routine in complex rural societies such as Darfur. The question
is, how are they resolved? In the 1980s in Darfur, basic law and
order and inter-communal mediation began to break down. In 1980,
the newly established regional government was given responsibility
for services in Darfur, but was given a wholly inadequate budget
for providing them. Without a functioning police force (and due
to the presence of Chadian rebel factions in the region), armed
robbery escalated. Communities-especially nomads—armed themselves
in self-defence. Since then, regional/state government in Darfur
has compensated for its infrequency in apprehending criminals
with the excessive brutality of punishments meted out (including
crucifixion, amputation etc).
8. As noted, inter-communal disputes became
more frequent from the 1980s. Governments were unable or unwilling
to convene inter-tribal conferences, which were expensive and
time consuming. In belated reaction to serious conflict during
1987-89, the then-government of Sadiq el Mahdi did finally convene
such a conference in May 1989 (it was concluded shortly after
the coup of June 1989). But the government was never able to implement
the resolutions of the conference including compensation payments
for loss of life and destruction of property.
9. Since 1990, the problem of unresolved
inter-communal disputes has escalated. The sub-division of Darfur
into three states worsened the problem. This has led to organised
militia groups among many ethnic groups, which form the basis
for the forces in the current war.
NATIONAL POLITICAL
FACTORS
10. There are a number of key political
factors at work, overlapping and interacting with the local factors.
The first of these is the historic marginalisation of Darfurians
in national political life. This has caused resentment from the
1960s onwards. In this context it is important to stress that
both non-Arab and Arab Darfurians are equally marginalised, with
the possible exception of leading families from the Rizeigat of
south-eastern Darfur, who have held influential positions in national
government (and who are not involved in the current conflict).
Prominent Darfurians who have lamented the marginalisation of
the region include the former governor, Ahmed Diraige, who is
founder of the Sudan Federal Democratic Alliance and a member
of the National Democratic Alliance, and Sharif Harir, a more
radical member of the SFDA who is closely associated with the
SLA. Ahmed Diraige has sought a peaceful settlement to the war,
based on the principle of federalism. Sharif Harir has been based
in Asmara, Eritrea, and has played a role in linking the SLA with
the SPLA and Sudanese in Eritrea.
11. Darfur's position adjacent to Chad and
Libya has been unfortunate. During the 1970s and 1980s, a number
of Darfurians aligned with the Ansar (followers of the Mahdi)
were in exile in Libya, where some of them joined the Libyan Islamic
Brigade and fought in Chad. Some also nurtured dreams of an "Arab
corridor" into central Africa. Insofar as there is an ideology
of Arab supremacism or racism to be found in Darfur, it can be
traced to this group. Most exiles returned after the fall of President
Nimeiri in 1985. Some joined the army or pro-government militias.
Some helped form the "Arab Alliance" in Darfur, a group
that has avowed an agenda of Arab domination of the region. During
the 1980s, Chadian factions of various political colours used
Darfur as a rear base, contributing to escalating violence. The
links between Darfurian members of the Arab Alliance and some
Chadian Arabs, are causing great concern to President Idris Deby
of Chad.
12. Darfur has a special place in the Sudanese
Islamist movement. One of the political innovations of Hassan
al Turabi, in his role as leader of the Sudanese Islamists, was
to broaden the Islamist base away from its traditional heartland
among the Sudanese Arabs of the Nile Valley, to the Muslim western
Sudanese, including Darfurians and Sudanese of west African descent,
mostly Hausa-Fulani, and known in Sudan as Fellata. In fact, the
national Islamic government corrected a long-standing anomaly
by awarding citizenship to the Fellata in the 1990s. The piety
and Islamic devotion of most "westerners" impressed
the Islamist leadership, and it tried hard (and with some success)
to bring them into the Islamist movement. When the Sudanese Islamist
movement split in 1999, with President Bashir dismissing Hassan
al Turabi, the split took on regional/ethnic lines. Most of the
"westerners" went into opposition, while most of the
riverain Arab leadership stayed with the government. Darfurian
Islamists, now in opposition, published a "Black Book"
that documented just how they had been marginalised in Khartoum.
This set the stage for the emergence of the JEM and the intimate
civil war within the Sudanese Islamists that is now taking place.
13. The final major political factor is
the strategy of a group of senior security officers who control
Military Intelligence and other security entities. This group
is powerful and accountable to no one, and has had a free hand
in the war areas. It has built up alliances with militias in western
and southern Sudan, and has at various times sought to block or
derail the peace process in the South. When the SLA/JEM insurgency
began in Darfur in 2003, members of the government initially made
efforts to find a political solution. When these failed, and there
was no political consensus at the highest level on how to approach
the problem, the compromise was to seek a military solution. The
security leadership and its allies were given a free hand. They
made an opportunistic alliance with the Janjawiid militia in northern
Darfur and the Fursan militia in southern Darfur. The former have
no historic links with the National Islamic Front, while the latter
were mobilised in 1991 in response to an SPLA incursion into the
region. The poor Islamic credentials of the Janjawiid are emphasised
by their habit of destroying and desecrating mosques.
THE HUMANITARIAN
CRISIS
14. Darfur threatens to descend into a major
famine. More than two million people are affected by the war and
associated massacre. Darfurians are famous for their resilience
and coping strategies when faced with hardship and hunger, but
the current crisis will test them to their limits.
15. Darfur has regularly suffered drought,
food shortage and famine over the last century. Major famines
occurred in 1913-14 and 1984-85, with less severe crises at various
times in between, most recently in 1987-88, 1990-91 and 1994.
In only one of these cases was there a significant food relief
operation (1984-85), and that made a relatively small contribution
to saving the lives of the two-and-a-half million drought-affected
Darfurians. During that crisis, the great majority of people survived
through their own skill at coping, including gathering wild foods
(which are plentiful in most parts of the region), working for
money or food or selling livestock. The major cause of increased
mortality (about 100,000 excess deaths are estimated for that
famine) were outbreaks of infectious disease including measles,
malaria and waterborne infections.
16. By contrast, the 1988 famine that struck
displaced Dinka from Bahr el Ghazal, and several subsequent famines
brought about by the civil war, have witnessed far higher death
rates. For example, the death rates in the displaced camps of
south Kordofan in 1988 were sixty times higher than the death
rates in the general Darfurian population in 1984-85. The reason
for this is that the displaced people were deliberately starved
to death by army garrisons and militia, which had stolen their
property and food, prevented them from receiving food aid and
(even more importantly) prevented them from collecting wild foods
and working for money.
17. The current Darfur crisis is more similar
to the war-famines that afflicted Southern Sudanese than the drought
famine of 1984-85. There are some instances of people being deliberately
starved (eg in Keilak). There are many cases of people being unable
to move freely and utilise the wild foods plentifully available,
or return to their farms to cultivate. Therefore we can expect
pockets of extremely serious suffering and excess mortality, alongside
hunger and impoverishment across a much larger population. For
this reason, the current estimates for likely excess mortality
in the region of 100,000-350,000 must be considered credible.
18. A major humanitarian relief operation
can undoubtedly save many lives. In such an operation, basic health
services are at least as important as food. But the greatest contribution
to Darfurians' survival would be to provide security so that people
can utilise their own skills at survival, and can begin to return
to their villages. In the medium- and long-term, it is essential
that emergency assistance to displaced and refugee camps does
not become a mechanism for cementing ethnic cleansing.
THE GENOCIDE
QUESTION
19. Is it genocide? This is a complicated
question. In order to identify an event as genocide under the
definition of the Genocide Convention of 1948, several conditions
need to be met. The implications of deciding that it is genocide
also warrant attention.
20. First, do the actions appear, prima
facie, to meet the conditions of the Genocide Convention?
Here we must begin by noting that "genocide" is a legal
term of art, and the actions covered by the Convention are considerably
wider than the lay definition of "genocide", which is
dominated by the paradigmatic case of the Nazi Holocaust. The
definition of "genocide" in Article II of the Convention
is "acts committed with the intent to destroy, in whole or
part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group; (b) Causing serious bodily or
mental harm to members of the group; (c) Deliberately inflicting
on the group conditions of life calculated to bring about its
physical destruction in whole or in part; (d) Imposing measures
intended to prevent births within the group; (e) Forcibly transferring
children of the group to another group." The numbers of killings
may not yet come close to those perpetrated in Rwanda or Nazi
Germany, and the entire destruction of the targeted ethnic groups
does not seem in prospect, but these extreme manifestations are
not legally necessary for a crime to count as genocide.
21. Second, are the groups that are targeted
sufficiently clear and distinct to warrant the name "ethnic
groups"? There are no national or religious distinctions.
While some commentators have spoken of "Arabs" versus
"Africans" there are in fact no racial distinctions.
Ethnic boundaries are blurred. An even greater problem was faced
by the International Criminal Tribunal for Rwanda in prosecuting
Jean-Paul Akayesu for genocide. In that case, the tribunal concluded
that "a stable and permanent group, whose membership is determined
largely by birth", was a sufficient criterion, along with
the fact that Rwandese subjectively identified individuals as
belonging to the categories "Hutu" and "Tutsi".
A similar argument will work in Darfur, with the additional factor
that most of the targeted communities speak languages that are
not Arabic.
22. Third, is the question of intent. Given
that there is unlikely to be any admission of genocidal intent
by any perpetrator, how is it to be ascertained? Again, the ICTR
decision on the Akayesu case is helpful. It found that intent
could be inferred from a number of presumptions of fact, namely
the general context of the perpetration of other culpable acts
systematically directed against some group. This context can include
the scale and nature of the atrocities and the deliberate and
systematic targeting of people because of their membership of
a certain group. Again, the events in Darfur appear to meet, prima
facie, the conditions.
23. What are the implications of a diagnosis
of genocide? The 1948 Genocide Convention is silent on this issue.
However, we must note that by using the broader (Convention) definition
of genocide, we are also implicitly arguing that an extreme response
(such as military intervention or regime change) may not be necessary
or appropriate. Having recognised that an event is genocide, intervention
is one option, but not the only one. In the case of Darfur, if
we recognise that the causes of the genocide lie in a range of
complex factors, many of them local, and culpability for the crime
resides in a certain set of leaders, that does not necessarily
include the highest echelons of the state, then a range of appropriate
actions is implied that does not include military intervention
or regime change. These actions include: disarming and encamping
the Janjawiid and Fursan militias, removing senior officials in
the security apparatus from their posts, addressing the issues
of land ownership and establishing a police force and dispute
resolution mechanism in Darfur.
24. We should also note that while there
may perhaps be a moral or legal case in favour of intervention,
there is likely to be a prudential case against it. It would need
to work. There is a real fear that an attempt at regime change
would backfire and lead either to a military coup or to an intensified
civil war.
STEPS TO
A SETTLEMENT
25. A timely settlement is important. It
will minimise a humanitarian disaster, make the moral point that
ethnic cleansing cannot be allowed to stand, and prevent a likely
hardening of positions on the rebel side (as young refugees, their
bitterness nursed in exile, join the fighters' ranks). A settlement
has several preconditions: agreement on the substantive issues,
internal Sudanese unanimity on an approach, and international
consensus on an approach.
SUBSTANTIVE ISSUES
26. Darfur lacks the "literature of
accord"—the accumulation of incomplete agreements between
the parties—that provided a foundation for the successful
IGAD peace talks between the GoS and the SPLA. But documentation
on past proposals to settle the Darfur problem (eg the 2003 draft
framework of Ahmed Diraige) can be compiled. This briefing has
also suggested that the following issues need to be addressed:
(i) Creation of a regional/state government
that has adequate authority and budget to provide essential services
in Darfur. There are strong arguments in favour of reconstituting
Darfur as a single entity, reversing its division into three states.
(ii) Security of land tenure and clarification
of land jurisdiction, including the rights of pastoralists to
move their herds and obtain water and pasture in areas where they
have traditionally done so.
(iii) Creation of a professional civilian
police force in the region, adequately equipped and trained.
(iv) Convening regular inter-group conferences
with the authority to adjudicate on important issues of dispute,
and the implementation of their resolutions.
27. The lack of a literature of accord also
means that the parties to the conflict have little experience
in negotiating. The inexperience of the SLA and JEM was clear
in several mis-steps they took during the Ndjamena peace talks
in 2003 and 2004. For this reason, it is important that mediators
convene consultations with the belligerent parties, civilian political
parties representing Darfurians, civil society organisations,
scholars and traditional leaders, in order to air the key issues
and move towards a common definition of the major problems in
the region and potential solutions.
A SUDANESE POLITICAL
CONSENSUS
28. A consensus among the Sudanese parties is
essential. In this respect, the key step is a common commitment
by President Bashir and SPLM Chairman Dr John Garang, shortly
to become First Vice President. These two parties have the power
and influence to stop the fighting and to bring the belligerents
to the negotiating table. It is important that all sides also
acknowledge the status of the JEM, and that the JEM not be excluded
because of its alleged links to the opposition Popular Congress
Party headed by Hassan al Turabi.
29. The GoS can take some important unilateral
steps to address the crisis. These include the following:
(i) Mobilizing the national grain reserve,
stored mostly in eastern Sudan, for distribution to Sudanese citizens
in Darfur in need, and organizing a national campaign to collect
millet and sorghum seeds for Darfurian farmers. The Sudanese people,
famous for their generosity, should take the lead in responding
to Darfur's humanitarian crisis.
(ii) Immediate implementation of President
Bashir's promise, made on 19 June, to disarm the Janjawiid militia,
including monitoring of this commitment.
(iii) Immediate participation of SPLA units
in the provision of security for citizens of Darfur and humanitarian
agencies. Joint security provision by SPLA and Sudan Armed Forces
units should help provide the necessary confidence in the impartiality
of these forces. At a later stage, SLA and JEM forces should also
be brought into these arrangements.
(iv) Accelerated implementation of the security
arrangements provided for in the framework agreement signed at
Naivasha, including bringing the security services under joint
control of President Bashir and SPLM Chairman John Garang.
30. President Bashir should invite Dr John
Garang to be a member of the Sudanese delegation to the African
Union Assembly of Heads of State and Government in Addis Ababa
in July. This will be an opportunity to make a common commitment
to the resolution of the Darfur crisis, and cement the peace agreement
reached at IGAD.
INTERNATIONAL STRATEGY
31. An international consensus is needed.
The African Union has been designated as the lead negotiator.
Other international stakeholders including the UN, the troika
supporting IGAD (US, UK and Norway), the European Union and the
League of Arab States, should ensure that their efforts are coordinated
with, and supportive of, the AU efforts. While the severity and
urgency of the Darfur crisis warrants rapid attention, it is important
to avoid simplistic approaches and overlapping and possibly contradictory
initiatives.
32. The AU military observer mission in
Darfur needs to be expanded and strengthened, with financial,
logistical, personnel and diplomatic support. The number of sites
for military observers should be increased. A mechanism for the
expedited investigation of reported violations of the ceasefire
should be put in place, with rapid feedback to the international
mediators for them to put pressure on the parties.
33. The AU Summit, convening in Addis Ababa
in early July, is an opportunity for the AU to bring together
the major Sudanese and international stakeholders to obtain a
statement of common commitment to resolving the Darfur crisis.
This is a major test for the AU's Peace and Security Council and
Peace and Security Directorate.
34. The visit of the UN Secretary General
to Sudan, followed by his attendance at the AU Summit, is an opportunity
to emphasise the linked political and humanitarian aspects of
the crisis, and remind the GoS of its obligations under international
law. In particular, the UNSG can emphasise the need for a coordinated
political strategy to address the causes of the conflict.
35. The appointment of Jan Pronk as the
Special Representative of the SG is an opportunity for a strategic,
hard-headed and comprehensive approach to the challenges of implementing
peace in all parts of Sudan. The SRSG will have a complex and
challenging task ahead of him, not least in Darfur.
36. Negotiations for humanitarian access
(led by the US, UN and EU) should not contradict or undermine
political negotiations. In the past, the GoS has made concessions
on humanitarian issues precisely so as to remain intransigent
on political issues: this should not recur.
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