Human Rights Watch (Washington, DC)
29 June 2009
(Page 2 of 4)
Sudanese security forces have not only arbitrarily arrested and detained human rights defenders and journalists. The Special Rapporteur on human rights in Sudan reported in her June 1, 2009 report to the Human Rights Council that some 200 Darfuris arrested by the National Security Services in Khartoum after the JEM attacks in May 2008 are still unaccounted for.
National elections, currently slated for early 2010, provide a valuable opportunity to address some of these issues, but there are enormous hurdles to overcome if they are to be free, fair, legitimate and truly national. Neither the National Congress Party nor the National Elections Commission have yet made a clear public statement as to how, or if, elections will be held in Darfur.
Human Rights Watch believes the protection of civilians, the realization of fundamental human rights, and justice for grave crimes are not only prerequisites to lasting peace in Darfur, they are issues that the GNU, the rebel movements, and the international community, including the African Union, should urgently address regardless of the outcome of any peace process.
Recommendations regarding the peace process:
Representatives of all ethnic groups, including Arab groups, as well as all sectors of society in Darfur, women and younger people, should be genuinely and transparently consulted in relation to any peace agreement. Those consulted should be able to speak freely and without fear of retribution, and discussions should not be in the presence of government or rebel representatives nor national security officers, police or soldiers. Discussions should take place both bilaterally and multilaterally, between and across different groups.
The GNU, rebel movements and mediators should agree on a strategy and realistic timeframe for a peace process, and both facilitate and ensure the security of those taking part.
Any peace agreement should provide for full independent investigation into alleged violations of international human rights and humanitarian law by all parties to the conflict, and bring to justice, before fair, impartial, and independent courts - including through ongoing or future proceedings before the ICC - those accused of having committed or ordered such crimes, or who are responsible for such crimes as a matter of command responsibility;
Independent of the peace process:
The GNU should disband and disarm all abusive militia forces, and take all necessary measures to ensure that security forces end direct and indiscriminate attacks on civilians and otherwise comply with international humanitarian law.
The GNU should ensure that the members of police and military forces are vetted for past records of human rights abuse, and any individual found to be responsible for abuse be dismissed, disciplined, or prosecuted as appropriate.
Rebel movements should increase discipline among their forces and ensure that commanders and combatants responsible for serious abuses be appropriately punished.
All sides should facilitate full unimpeded access to humanitarian aid for all populations in need. The GNU should allow the return of all expelled agencies, and should recommit to its obligations under all existing agreements regarding the operation of aid agencies in Sudan, including its commitment to allow aid organizations to implement human rights and protection programs.
The GNU should fulfill its human rights obligations in accordance with international law, the CPA and the Interim National Constitution in Darfur, including wherever necessary reforming national legislation. The GNU should respect the rights to freedom of expression and association, should account for the whereabouts and condition of all human rights defenders and others currently detained incommunicado, and end any harassment and abuse of individuals for human rights related activities.
The National Elections Commission, all parties to the conflict and civil society representatives should as soon as possible convene a discussion on the feasibility of free and fair elections in Darfur;
The GNU, as well as rebel leaders where relevant, should commit to implementing all legal, practical and security measures necessary to ensure that both the voters and political opposition parties in Darfur are able to fully and freely participate in such elections when they occur.
(ii) The Challenge of Reconciliation and Healing
Under international law, the government of Sudan has a legal duty to provide reparation for serious violations of international human rights and humanitarian law.[4] Compensation for loss and redress for other harm, including physical or mental injury, will also be essential to reconciliation and long term healing. In Sudan there are well-established customary mechanisms for dealing with both reconciliation and reparation, for example the establishment of local peace building committees. However such mechanisms should be adapted or replaced with more formal institutions where necessary to ensure they are transparent, consistent and equitable. Given the nature and scale of violations of human rights in Darfur, the GNU should provide adequate financial and other support to such mechanisms, in addition to the payment of compensation itself.
In addition the government should urgently establish a mechanism to resolve ongoing disputes over land ownership, which has become increasingly contentious over the course of the conflict. The rights and needs of both those displaced from their land and of any new occupiers, where such occupiers have not acted illegally, must be taken into account.
A truth commission could also make an important contribution to societal healing by reducing the collective resentment that fuels so many recurring conflicts, and by combating the creation of a revisionist history through accurate and thorough documentation of crimes committed during the conflict. Courts will not be able to document anything beyond a small fraction of victim experiences; a pivotal means of societal healing will therefore likely occur outside the courtroom.
While having the potential to play an important value-added role, truth commissions are complementary, and not an alternative or substitute, to prosecutions for the most serious crimes. Moreover, as identified in the Office of the United Nations High Commissioner for Human Rights rule of law tool on truth commissions, a truth commission is only appropriate if there are conditions of peace and security on the ground, if the government is committed to allowing a serious inquiry into past abuses, and if victims and witnesses have an interest and are able to meaningfully participate in the process.[5] It is clear that in Darfur, where the Sudanese government continues to fight rebel forces and commit human rights abuses against Darfuri civilians, these conditions do not currently exist. In addition, international expertise on truth commissions would be needed to assist in the establishment and functioning of any truth commission for Darfur.
It is important to reiterate that neither reparations nor a truth commission can take the place of prosecutions for serious crimes in Darfur, and that it will be impossible for either to take place effectively before lasting peace and security is established in Darfur.
Recommendations:
The GNU should establish and fund committees and other institutions, with a broad and balanced membership, with sufficient resources, authority and time to address compensation and redress for violations of international law committed in Darfur. The GNU should establish a committee or other institution particularly to address disputes over land ownership in Darfur.
The GNU should establish a significant compensation fund to support such reparations.
A truth commission on human rights abuses in relation to the conflict in Darfur since 2003 should be explored, but only in addition to ICC or other prosecutions for serious crimes and only if conditions of peace and security exist and meaningfully participation in the process is possible. Any truth commission effort should draw from international expertise and assistance.
(iii) The Challenge of Justice and the Suppression of Impunity
Until impunity is addressed, Human Rights Watch believes Sudanese government armed forces, pro-government militias and rebel groups will continue to commit attacks on civilians and other abuses. Thus obtaining justice by prosecuting those responsible for serious international crimes is crucial for obtaining lasting peace in Sudan.
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