19 Hague Yearbook for International Law (2007), 113-134 Sudan's Divided (and divisive?

) Peace Agreements Sarah M.H. Nouwen∗ 1. Introduction In the space of less than two years, three major peace agreements were concluded in the Sudan. The Comprehensive Peace Agreement (CPA) halted the North-South conflict, while the Darfur Peace Agreement (DPA) and Eastern Sudan Peace Agreement (ESPA) were supposed to do the same for Darfur (West-Sudan) and the East. The peace agreements concern three different regions of Africa’s largest country. The regions are in several respects worlds apart and require different responses. So as one expects, there are differences among the agreements. The differences on overlapping issues raise difficult questions of compatibility and hierarchy. More remarkable, however, are the similarities among the three agreements. The agreements have a comparable structure. They all have a declaration of principles; chapters on political, economic and security matters; in the cases of Darfur and the East, on consultative mechanisms; and all have implementation modalities. Both the CPA and the DPA have a human rights catalogue. Some provisions, particularly of the DPA and ESPA, are identical. Rather than addressing local root causes of the conflict, the three agreements are mainly concerned with one cause of conflict that characterises entire Sudan: the centre’s marginalisation of the periphery. The assumption seems to be that if the agreement addresses the problematic relationship between the centre and the region it will also help solving the local causes of conflict. If the main issue is the relationship between the centre and the periphery, the question arises whether this piecemeal approach to peace, regional peace agreement after regional peace agreement (CPA, DPA, ESPA, ….), is the right way forward. Root causes that vary among the regions require region specific agreements. However, if the main focus of the peace agreements is the centre’s marginalisation of the periphery, a region by region approach runs the risk of perpetuating instead of reversing the phenomenon. Legal inequality among regions is continued, now between those with and those without their own peace agreement. The concern inspiring this article is that a predominantly piecemeal and regional approach to peace could in the long run actually provide an incentive for more armed conflict. On the basis of a description of some of the similarities (section 3) and the differences (section 4) among the agreements, the article sets out the concern about the piecemeal

Sarah Nouwen (PhD candidate International Law Cambridge (UK), MPhil International Relations Cambridge (UK), LLM Utrecht University School of Law (the Netherlands)) worked in Sudan as a consultant to the Netherlands Embassy from August 2005 to September 2006. This paper has been written à titre personnel and does not necessarily reflect the opinion of any of the institutions to which the author was or is affiliated. She is grateful to the diplomats, experts and activists who commented on earlier drafts. Mention of their names may impede their work, but they know who they are. This article, written in an academic ivory tower, pales with their inspiring indefatigable work for peace and justice, in the complexities of the real world.

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approach to peace (section 5) and two important qualifications (section 6). First it provides a short background of the three conflicts and the peace agreements (section 2). 2. CPA, DPA and ESPA in context The Comprehensive Peace Agreement (CPA) was signed on 9 January 2005 by the Government of Sudan (mainly composed of the National Congress Party (NCP)) and the Sudan People’s Liberation Movement/Army (SPLM/A).1 After over a decade of negotiations facilitated by the Inter-Governmental Authority on Development (IGAD), an East African regional organisation, the CPA concluded Africa’s longest civil war. The conflict over selfdetermination of the South, the role of religion in the state, sharing of political power and resources had taken over two million lives and had uprooted over four million people. As its title suggests, the CPA is comprehensive in that it is an agreement that spans a range of issues. It is an example of modern peace agreements that do not only attempt to resolve issues directly related to the conflict, but also contain elements aimed at reshaping fundamental aspects of the state and society. The CPA attempts to resolve issues directly related to the conflict. It grants substantial competencies to the South, such as participation in the national government, establishes an autonomous Government of Southern Sudan and provides for the sharing of revenues from Southern oil and a referendum on external self-determination by 2011. However, the CPA is also, in line with the vision of the late SPLM Chairman Dr John Garang, a roadmap for a new Sudan. The philosophy is that the Southerners will not opt for secession if the parties make “unity attractive” through fundamental changes in the style of Sudanese governance.2 It contains a catalogue of human rights, provides for a Government of National Unity, a new constitution, substantial decentralisation and democratic elections before 2009. In all these aspects, the CPA is more than a cessation of hostilities between the National Government and the South; it changes the essence of how those occupying the palace in Khartoum have governed the country since its independence in 1956. At least, it would if the CPA was implemented, which happens in fits and starts. Whereas most of the important institutions (Government of National Unity, Government of Southern Sudan, National Assembly, Southern Sudan Assembly, state governments and assemblies and several independent commissions) have been established, the major processes are still to take place (census, elections, referendums).3 The most important criticism of the CPA has been that it is “incomprehensive” in that it is a bilateral agreement between the most powerful parties of the North (NCP) and the South (SPLM). In the CPA, the two parties determined how Sudan’s political and economic cake was to be divided. Exemplary is their agreement on the power sharing percentages for the executive and legislative at the national, southern and state level. At the national level, for instance, they allocated themselves 80% of the seats in the National Assembly and National Executive (52% for the NCP and 28% for the SPLM), only leaving 20% for the opposition
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The Comprehensive Peace Agreement, signed on 9 January 2005, available at http://www.unmis.org/english/documents/cpa-en.pdf (last accessed 4 April 2007). 2 Idem, tenth preambular paragraph (‘The parties further acknowledge that the successful implementation of the CPA shall provide a model for good governance in the Sudan that will help create a solid basis to preserve peace and make unity attractive and therefore undertake to fully adhere to the letter and spirit of the CPA so as to guarantee lasting peace, security for all, justice and equality in the Sudan’). 3 See for the implementation of the CPA, the CPA Monitor, written by the United Nations Mission in the Sudan, available at http://www.unmis.org/english/cpaMonitor.htm (last accessed 4 April 2007).

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parties (14% for the Northern, 6% for the Southern).4 Opposition parties have claimed that had there been democratic elections beforehand, the results would have shown that they were entitled to higher percentages. Nevertheless, most parties swallowed the power sharing formula, calculating that the CPA at least provides for democratic elections by 2009.5 Also for them this is gain: the last democratic parliamentary elections were in 1986. Initially a two-party deal, the CPA nevertheless became the “common property” of all Sudanese through its transformation into the new Interim National Constitution (INC).6 The importance of this “constitutionalisation” is often neglected. As an agreement between two parties, they could agree to modify it whenever and how they wanted, for instance, by changing the power sharing percentages. The INC, however, can only be amended in accordance with constitutionally prescribed procedures.7 Violations of the CPA are no longer limited to violations of the rights of the two parties but of the constitution of all Sudanese. The Darfur Peace Agreement (DPA) was signed in May 2006 and was supposed to end the violence that had killed several hundred thousand and displaced millions.8 The violence had erupted in 2003 when the Government forcefully responded to an insurgency launched by two rebel groups fighting against political and economic marginalisation of Darfur. Exploiting local tensions over land and water between the sedentary and nomadic tribes, the Government recruited the so called Janjaweed to suppress the rebellion. As we know, the DPA has not brought peace. The violence has persisted and in some respects increased.9 A fundamental reason is a lack of ownership of the parties to the conflict. The CPA had been negotiated by the Government and the SPLM over a many years, line by line. IGAD had facilitated the negotiations, external advisors had been available as resource persons and in the end external lawyers had assisted in couching the text in legal language. Over time the mediator and the parties limited the role of international observers (among which UK, US,
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CPA Chapter II sections 2.2.5 (National Assembly) and 2.5.5 (National Executive), incorporated in Interim National Constitution, signed into law on 9 July 2005, available at http://www.mpil.de/shared/data/pdf/inc_official_electronic_version.pdf (last accessed 4 April 2007) sections 80 (Government of National Unity) and 117 (National Assembly). 5 CPA Chapter I section 1.8.3 provides that “General Elections at all levels of government shall be completed by the end of the third year of the Interim Period.” The end of the third year of the interim period is July 2008. However, section 9c and d of the implementation modalities of the power sharing agreement determine that the General Elections shall be held “not later than the end of the fourth year of the Interim Period.” That date is also incorporated into section 216 Interim National Constitution, supra note 2. The elections are thus to take place before July 2009. The Umma party and Popular National Congress have not taken up their seats in the Government of National Unity and in the National Assembly, expecting to be more successful in the elections by remaining in the opposition beforehand. 6 See supra note 2. 7 INC section 224: “(1) This Constitution shall not be amended unless the amendments are approved by threequarters of all the members of each Chamber of the National Legislature sitting separately and only after introduction of the draft amendment at least two months prior to deliberations. (2) Any amendment affecting the provisions of the Comprehensive Peace Agreement shall be introduced only with the approval of both Parties signatory to the Comprehensive Peace Agreement.” The latter provision shows that the parties to the CPA have a veto power as regards the INC provisions that stem from the CPA and in that sense have a stronger claim of ownership. 8 Darfur Peace Agreement, signed on 5 May 2006, available at http://www.unmis.org/english/2006Docs/DPA_ABUJA-5-05-06-withSignatures.pdf (last accessed 4 April 2007). 9 In a situation of spreading lawlessness, the attacks against humanitarian agencies have increased, threatening the life line of millions of people depending on humanitarian aid. See “Darfur: New Violence Threatens Humanitarian Response in Darfur”, Oxfam Press Release, 15 December 2006, available at http://www.oxfam.org/en/news/pressreleases2006/pr061215_darfur (last accessed 4 April 2007).

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Italy, Norway) to observing rather than influencing the timing and contents of the agreement.10 The DPA, in contrast, was drafted by the mediators, not by the parties. Part of the larger organisation, the mediating team of the African Union saw no need in consulting the IGADmediators who had facilitated the CPA negotiations. In the drafting of the texts and setting the agenda, the AU mediators were heavily supported and influenced by particularly the US observers and reliant on external advisors. The parties themselves were only marginally interested in the negotiations; the conference room was just one of the battlefields where positions could be reiterated. Still believing in the option of a military victory, the government was not inclined to budge. It insisted on the CPA, as incorporated into the INC, as the framework for the negotiations. This resulted in a paradoxical situation. Since the CPA had not taken their grievances into account, the insurgents demanded their own peace agreement to obtain gains similar to the ones the South had secured through the CPA. Indeed, the format of the CPA was the starting point of the negotiations and also the DPA consists of chapters on power sharing (including a human rights catalogue), wealth sharing and security arrangements. Additionally it provides for a popular consultation (the Darfur-Darfur Dialogue and Consultation), aimed at broadening the peace agreement beyond the belligerents (the Government and, initially, two rebel movements).11 It also has implementation modalities, although the provisions themselves and the modalities of the DPA leave much more open to further determination than the CPA does. However, from the outset the CPA was as well the end point of the negotiations. The government insisted that the CPA as incorporated into the INC could not be fundamentally altered, thus setting the boundaries of the potential gains for the insurgents. It was up to the insurgency to obtain as many concessions as possible within those margins or, where possible, to push the margins a bit further. However, the rebel movements were too fissiparous and divided among themselves to achieve that.12 After two years and seven rounds of negotiations the AU mediating team, under pressure of yet another deadline and shrinking resources, presented a final text to the parties five days before the deadline of 30 April 2006 set by the African Peace and Security Council. For the government the agreement was acceptable. The rebel movements, some of their leaders struggling to understand the draft text due to a lack of fluency in English, were divided.
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Exception is the current Chapter IV, the Protocol between the Government of Sudan and the Sudan’s People Liberation Movement/Army on the Resolution of the Abyei Conflict, which was drafted by US Special Envoy Senator John Danforth and presented to and accepted by the parties. The implementation of the Protocol has been in an absolute stalemate since July 2005. See more elaborately on the CPA negotiations, “The mediator’s perspective: an interview with General Lazaro Sumbeiywo” and “Reflecting on the IGAD Peace Process: An interview with Nicholas (Fink) Haysom”, in: M. Simmons and P. Dixon (eds.), “Peace by Piece: Addressing Sudan’s Conflicts”, Accord, Issue 18, Conciliation Resources, 2006, available at http://www.c-r.org/ourwork/accord/sudan/index.php (last accessed 4 April 2007)), pp. 22-27 and pp. 28-31. 11 See DPA Chapter IV. Section 458 defines the DDDC as “a conference in which representatives of all Darfurian stakeholders can meet to discuss the challenges of restoring peace to their land, overcoming the divisions between communities, and resolving the existing problems to build a common future.” 12 See, more elaborately on the DPA negotiations, J. Hottinger, “The Darfur Peace Agreement: Expectations Unfulfilled”, L. Nathan, “Failings of the DPA” and A. de Waal, “The DPA and its National Context”, in: Simmons and Dixon (eds.), “Peace by Piece: Addressing Sudan’s Conflicts”, supra note 10, pp. 46-49, p. 50 and p. 51.

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Ministers and special envoys from various observing states, domestically under pressure to “save Darfur”, flew over to press the parties to sign the agreement. Mini Minawi, leader of one of the factions of the Sudan Liberation Movement/Army (SLM/A) signed. His political rival within the SLM/A, Abdul Wahid, did not. Nor did Khalil Ibrahim’s Justice and Equality Movement (JEM). That did not prevent an impressive list of international observers (among whom European and US government representatives) to support the agreement with their signatures as observers. Since the preamble of the DPA defines the parties as the Government of Sudan, the SLM/A and the JEM, and the latter has not signed, it can be argued that the DPA has not come into effect. In practice, however, the signatories have accepted the DPA as the new reality, continued violence notwithstanding. Minawi’s SLM-faction has taken up the positions that the DPA provided for all the rebel parties. The Government used the DPA as the go-ahead for its “new” Darfur policy. Gratefully plagiarising the US representative’s language,13 it rebranded the non-signatories “outlaws” and used their rejection of the DPA as justification for more attacks. The international actors feel bound by their signature as observers and pursue the implementation of an agreement that in fact has increased the tension on the ground by dividing the Darfurian population between opponents and proponents. They still attempt to get the non-signatories on board. An agreement may contain all or most of the ingredients of a theoretically good peace agreement – and indeed, eminent Sudan experts have helped write entire parts of the DPA- but if the leaders in the field do not support it, if it is only consulted with and not negotiated by the parties and stems from deadline and blackmail diplomacy, the agreement will not bring what it is supposed to bring: peace. In October 2006, the Eastern Sudan Peace Agreement (ESPA) was concluded between the Eastern Sudan Front14 and, again, the Government of Sudan. The violence in the East has not been on a scale comparable to the bloodshed in Darfur or the South. However, the uprising against what the ESPA confirmed to be “the core problem in Eastern Sudan”, the “political, social, and economic marginalization”, had been longstanding.15 Unlike the CPA (12 years), the DPA (2 years), the ESPA-negotiations required only a few months. Hosted by the Eritrean Government, the negotiations took place in Asmara and involved far less international observers and resource persons than the DPA negotiations in Abuja or the CPA negotiations in Naivasha. The DPA, and thus again but less directly the CPA, was used as the template: the ESPA has chapters on power sharing, wealth sharing, security arrangements and a consultative conference on the ESPA. Many provisions are verbatim identical, other DPA provisions were not considered necessary in the context of the East and omitted, resulting in a substantially shorter agreement than the DPA. Thus far, hardly any provision of the ESPA has been implemented. Internal divisions crack the Eastern Front. 3. Similarities
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See A. de Waal, “‘I Will not Sign’”, 28 (23) London Review of Books, 30 November 2006, p. 20. According to the Eastern Sudan Peace Agreement, signed on 18 October 2006, available at http://www.sudantribune.com/IMG/pdf/Eastern_Sudan_Peace_Agreement.pdf (last accessed 4 April 2007), p. 4, “Eastern Sudan Front” is defined as “the East”. The Eastern Sudan Front was created in 2005 and is composed of the Rashaida Free Lions (the Rashaida are an Arab tribe) and the Beja Congress (the Beja are the region’s largest ethnic group). 15 ESPA preambular paragraph 3.
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Although varying in size and detail, the CPA, DPA and ESPA are very similar in subject matters, substance and often even in phrasing. Reasons of substance and procedure justify this. Substantially, the conflicts share an essential root cause. The North-South conflict has often been reduced to the paradigm of northern Muslims versus southern Christians. The Darfur conflict has been depicted as an age old tribal feud between local Arabs and local Africans, neglecting the more important contradistinction between settlers and nomads. Undeniably components, these factors, however, do not lie at the bottom of the conflicts. The root cause of all these struggles has been marginalisation of the periphery by the centre predominantly composed of a few Nilotic tribes. That marginalisation concerns political, economic and socio-cultural power. In this context of marginalisation, local tribal tensions intensified, exploited through the Government’s policy of divide et impera to suppress insurgencies against the marginalisation. Procedurally, the substantial similarities between the agreements could be expected in that the CPA has been elevated to the level of constitution and hence has become the supreme law of the land, which all laws have to comply with.16 Different arrangements on national issues in the subsequent DPA and ESPA are not just a deviation of the previous, perhaps exemplary, CPA. Where the subsequent agreements arrange the same issue differently than the CPA, and are nevertheless to be respected, to Constitution will have to be amended in order not to be violated. At several points, the DPA and ESPA explicitly state that the provisions should be implemented in accordance with the CPA or the Constitution,17 or simply state that they are in
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INC section 3. See for instance in the DPA (emphases added) the list of definitions (“‘The elections’ mean the general elections to take place, in accordance with the INC, no later than the end of the fourth year of the Interim Period specified therein.”); sections 12 and 61 as regards the borders of Darfur (“Without prejudice to the provisions of the CPA relating to the North-South border … the northern boundaries of Darfur shall return to the positions as of 1 January 1956….”); section 21 on the criteria for power sharing (“The criteria and modalities for the exercise of power or the sharing of power after the elections shall be determined by the result of the elections and in accordance with the provisions of the INC.”); section 42, as regards human rights (“All existing laws shall be revised in accordance with the provisions of the INC”); section 44 on the federal system of government (“… Pending a final decision on the status of Darfur, in accordance with this Agreement, responsibilities shall be distributed between the national and other levels of government in accordance with the provisions of the Constitution.); section 45(e) on the institutions at the national level (“Institutions at the national level: The powers and functions of these institutions and their relationship with each other shall be as set out in the INC”); section 46 on the state level of government (“There shall be legislative, executive and judicial organs at the state level, which shall function in accordance with the Constitution and the relevant state constitution.); section 53 (e) on the functions of the Transitional Darfur Regional Authority (“Facilitate liaison and interaction between the GoS and Darfur, within the context of national unity and the Constitution …); section 63 on local government (“Native administration shall have regard, where appropriate, to the established historical and community traditions, customs and practices. Where these are contrary to the provisions of the National or State Constitution or law, the latter shall prevail.”); section 91 on elections (“Elections shall be held in accordance with the provisions of the INC….”) and section 92 (“Elections for the state legislature shall be held in accordance with the provisions of the INC….). See in the ESPA, section 8 on the federal system of governance (“The Republic of the Sudan has a federal system of government in which power shall be effectively devolved. Responsibilities shall be distributed between the national and other levels of government in accordance with the provisions of the Constitution.”); section 11 (c) on the Eastern Sudan Coordinating Council (“The Council shall perform its duties without prejudice to the constitutional powers and functions of the three states”); section 59 (“The respective types of income, revenue taxes and other sources of wealth to which the various levels of government are entitled shall be carried as setout (sic!) in the Interim National Constitution (INC)).”
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conformity with the CPA or Constitution.18 All the more interesting are the occasions in which they are not. What are the reasons and what are the consequences? For example, what if it says: “Taking into consideration what has followed from the Comprehensive Peace Agreement of 9 January 2005 as well as the particularities of Eastern Sudan.”19 Or, more common, what are the consequences of the CPA/Constitution, DPA and ESPA all espousing principles for national issues, not limited to their regions, in diverging terms? 4. Differences 4.1 Different conflicts Considering the fact that the three peace agreements apply to respectively the South, West and East of Africa’s largest country, with diverging cultures, climates and local tensions, it is remarkable that there are not more differences between the peace agreements. Although all suffer from marginalisation, the South, West and East are in several ways literally worlds apart. Based on the same template, the focus of all three agreements is on the relation between the centre and the specific region. Whilst addressing marginalisation, an exclusive focus on the centre-periphery relations neglects local root causes of conflict. The DPA for instance does not go beyond acknowledging the competition for pasture and water as a problem, a factor that as a result of desertification has increasingly divided the different population groups. The solution is limited to a statement that “[t]he problem shall be addressed in a comprehensive way…”.20 The assumption seems to be that by addressing the political and economic marginalisation local issues will be more easily resolved. The agreements do reflect that the nature of the armed conflicts has been different. For instance, the fact that the prohibited activities under the ESPA ceasefire agreement only copies five and not all fourteen prohibited activities of the DPA ceasefire can be explained by the different scale and intensity of conflict that has taken place in the West. The omission of the prohibition on gender-based violence in the ESPA is obviously not to say that gender-based violence is permitted in the East, but rather that it has not been a characteristic of the conflict in the East as it has been in Darfur. Analogical explanations exist for the absence of prohibitions on offensive military flights and the provision of humanitarian assistance. 21 Likewise, whereas both the DPA and ESPA provide for a consultative mechanism, the tasks of the Darfur-Darfur Dialogue and Consultation are far more elaborate than that of the Consultative Conference on the Eastern Sudan Conflict.22 Also this can be explained with reference to the fact that the conflict in the East was less intense and less ethnically politicised than the one in Darfur.
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DPA section 468 (“The mandate of the DDDC is … in conformity with the spirit of the CPA of 9 January 2005.”) 19 ESPA Declaration of Principles of 19 June 2006, Appendix C to the ESPA. 20 See DPA section 149: “Competition for pasture and water by nomadic herders and settled agricultural producers is an important problem. The problem shall be addressed in a comprehensive way, by developing policies to reverse environmental degradation and the decline in agricultural yields, gradually shifting the emphasis of herders from quantity to quality, developing a framework for equitable access by various users of land and water resources, as well as developing research capacities in these areas.” (Emphases added). See also DPA section 158: “Tribal land ownership rights (hawakeer), historical rights to land, traditional or customary livestock routes, and access to water, shall be recognised and protected. All levels of government shall institute a process to progressively develop and amend the relevant laws to incorporate customary laws, practices, international trends and practices and protect cultural heritage.” (Emphasis added). 21 Compare DPA section 226 with ESPA section 91. 22 Compare DPA article 31 with ESPA article 33.

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4.2 Different external influences Some differences, however, are more difficult to explain. The influence of the different types and roles of mediators, observers and advisers comes to the fore. The peace negotiations in Naivasha (CPA), Abuja (DPA) and Asmara (ESPA) took place under different auspices. In Navaisha chief mediator General Sumbeiywo’s role was more facilitating the process than drafting a text. The parties increasingly took ownership of their agreement and pushed back influence of external resource persons and observers.23 In Abuja, the African Union mediators drafted the texts themselves, with substantial support from external resource persons and foreign, mainly US, observers.24 The ESPA, on the other hand, came about under the auspices of the Eritrean government only. That might for instance explain why the CPA and DPA provide for large international bodies to assess and evaluate the implementation of the agreement,25 whilst the overseeing committee of the ESPA is composed of only the two parties and the facilitator, the Eritrean Government.26 The role of resource persons, present in varying numbers at all negotiations, also varied. In Naivasha the more the parties claimed ownership of the text, the more the advisors, like the observers, were brushed aside. In Abuja the AU mediators heavily relied on some of the advisors, also for drafting parts of the texts. In Asmara, however, the few resource persons present (all of whom had been in Naivasha and Abuja) were scarcely consulted. The Eritrean mediator took the DPA and tailored it to the Eastern Sudan conflict. An example of the potential influence of norm-driven mediators and advisors is the fact that the DPA, exponentially more than the CPA and ESPA, includes references to special rights and needs of women. The Canadian-funded gender consultant of the African Union, absent during the ESPA negotiations, appears to have had substantial influence when she went over the text of the DPA, making use of the views of Darfurian women’s representatives.27 As an aside, the question arises whether the abundance of provisions in the DPA on women’s rights does not actually result in an inflation of women’s rights. Instead of it mainstreaming gender, it actually may exclude women, especially when the provision does not relate to an issue (e.g. gender based violence) that particularly affects them, but merely states with each and every provision that also women should participate. At least as disturbing is the perennial lumping together of women with children, youth, and even, disabled, elderly and “other vulnerable groups.” Finally, also the differences between the transitional justice mechanisms for the three conflicts is to some extent attributable to outsiders, albeit more the international community at large than directly the mediators. Apart from a general agreement for the Government of National
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See also “The mediator’s perspective: an interview with General Lazaro Sumbeiywo” and “Reflecting on the IGAD Peace Process: An interview with Nicholas (Fink) Haysom”, supra note 10. 24 See also J. Hottinger, “The Darfur Peace Agreement: Expectations Unfulfilled”, L. Nathan, “Failings of the DPA” and A. de Waal, “The DPA and its National Context”, supra note 12. 25 See CPA Chapter I section 2.4 on the Assessment and Evaluation Commission and DPA section 511 on the Darfur Assessment and Evaluation Commission. 26 ESPA section 149. 27 See DPA sections 15, 69 (d), 70, 71, 77 (b), 78, 109, 187, 192, 205 (d) (“vulnerable groups such as women and children”), 217 (c) (“women and children”), 229 (e), 236 (“women and children”), 262 (e) (“women, children, the vulnerable and disabled persons”), 277 (“women and children”), 278, 279 (“gender units to work with women and children”), 280 (“women and children”), 369, 394 (“women and children”), 401, 416, 428, 438, 442, 445, 447e (“women and children”), 461e (“women and the youth”), 475, 476 (“women and youth”), 484j, 488, 494 (d) (“women and youth”).

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Unity “to initiate a comprehensive process of national reconciliation and healing throughout the country”,28 the CPA is silent on any way of dealing with the past. Neither the SPLM nor the NCP is keen on trials, or any other transitional justice mechanism that could reveal the atrocities committed by both parties during decades of warfare in which millions died. The most the international observers and advisors could secure as regards accountability was that the amnesty provision agreed upon by the parties was struck out. As regards transitional justice, the situation in Darfur is entirely different. First, unlike the CPA, the DPA provides for at least one mechanism of transitional justice, namely reparations. For displaced persons, it provides for a right to restitution, and if restitution is impossible, compensation of property.29 It also gives war-affected persons in Darfur a right to compensation30 and sets out the principles of procedures, the commissions and the funds. Interestingly, in a more general provision on wealth sharing the DPA states that “[a] ll Sudanese citizens have equal rights to … restitution of property for those affected by conflict.”31 Similarly, the ESPA provides that “[a]ll persons arbitrarily or unlawfully deprived of their rights to land shall have those rights restored to them.”32 So whereas neither the CPA nor the INC contains any provision on reparations, these provisions in the DPA and ESPA extend to all Sudanese, including those affected by the North-South war. If these agreements are included in the Constitution, as will be discussed below, they potentially have an impact beyond the inhabitants of Darfur and East Sudan. Secondly, the most important difference in the transitional justice arrangements lies outside the peace agreements. In March 2005, confronted with ongoing atrocities and discouraging negotiations, the Security Council referred the situation in Darfur to the International Criminal Court (ICC).33 Consequently, whereas there is likely to be impunity for the atrocities committed during the decades of the North-South war, high level international justice is expected for those bearing the greatest responsibility for international crimes committed in Darfur since 1 July 2002. However, even if the ICC ever gets hold of the few against whom it will start proceedings, the question remains whether there will be any form of accountability for all those others who committed crimes. Relying on the ICC’s complementarity principle, Sudan has established its own Special Courts for Darfur in an attempt to show that it itself prosecutes alleged offenders and that cases are therefore inadmissible for the ICC. Thus far, however, these cases do not include the cases the ICC is likely to focus on.34 4.3 More difficult differences Some dissimilarities between the agreements cannot easily be explained by reference to the differences in the nature of the conflicts, among the regions and in external influences.
28 29

See CPA Chapter II section 1.7, incorporated in INC section 21. DPA sections 194-198. 30 DPA sections 199-213. 31 DPA section 97(k), emphasis added. 32 ESPA section 69, emphasis added. 33 UN Doc. SC/RES/1593 (2005). 34 Fourth Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to UNSCR 1593 (2005), 14 December 2006, available at http://www.icccpi.int/library/organs/otp/OTP_ReportUNSC4-Darfur_English.pdf (last accessed 4 April 2007), p. 7. On 27 February 2007 the Prosecutor requested Pre-Trial Chamber I to issue summons to appear for Ahmad Harun and Ali Kushayb. Sudan had started proceedings against the latter, but not for the same incidents and conduct. See ICC Doc. ICC-02/05, 27 February 2007, Prosecutor's Application under Article 58(7), available at http://www.icc-cpi.int/library/cases/ICC-02-05-56_English.pdf (last accessed 4 April 2007), pp. 88-91.

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For instance, the DPA and ESPA open with the same fundamental principle, the nature of the Republic of Sudan, phrased nearly identically. However, the ESPA refers to Sudan as a “united” sovereign state; the DPA does not.35 This difference does not have clear practical implications; other dissimilarities, however, are likely to have so. A prominent example is the competing human rights catalogues. A list of human rights has been included in the CPA.36 These human rights have been incorporated into the Constitution.37 The ESPA does not contain its own human rights provisions; “[t]he Parties reaffirm their commitment to respect and promote human rights and fundamental freedoms as detailed in the INC, and in international human rights covenants ratified by the Government of Sudan.”38 Nevertheless, in other parts of the Agreement, it contains human rights provisions that in wording slightly diverge from the human rights guarantees in the INC. For instance, as regards the right to property, the ESPA contains a provision that is nearly identical to the INC, but which omits the guarantee that “[n]o private property shall be confiscated save by an order of a court of law.”39 Its right to health care omits the State’s obligation to “establish, rehabilitate, develop basic medical and diagnostic institutions, provide … and emergency services for all citizens.”40 As a final example, the ESPA’s right to education deviates from the INC in that it does not include the INC’s explicit guarantee of access to education without discrimination.41 Are the omitted parts not necessary in the eastern states of Sudan? Or are the provisions in the ESPA meant to be only complementary? The DPA goes further and has its own list of human rights. “The Parties reiterate their commitment to respect and promote human rights and fundamental freedoms as detailed below and in international human rights covenants ratified by the GoS.”42 No reference is made to the human rights in the INC. The human rights “detailed below” to a large extent cover the same rights as the INC. However, as particularly lawyers know, the devil is in the details and the different phrasing of human rights in the DPA and INC can amount to legal
35

Compare ESPA section 1 (“The Republic of the Sudan is a united, independent, and sovereign state. …”) with DPA section 1 (“The Republic of the Sudan is an independent, sovereign state; sovereignty is vested in the people and shall be exercised by the State in accordance with the provisions of the National Constitution into which this Agreement shall be incorporated”). 36 CPA Chapter II, part I, article 1.6. 37 The right to freedom from discrimination, CPA Chapter II section 1.6.2.13, has been omitted. However, article 26 of the International Covenant on Civil and Political Rights, 16 December 1966, entry into force 23 March 1976, contains the same right and is directly applicable on the basis of INC section 27(3) and Sudan’s accession to the treaty on 18 March 1986. 38 ESPA section 13. 39 Compare ESPA section 53 (“Every citizen shall have the right to acquire or own property as regulated by law. No private property may be expropriated except by law for the public interest and is entitled for prompt and fair compensation”) with INC section 43 (“Every citizen shall have the right to acquire or own property as regulated by law. No private property may be expropriated save by law in the public interest and in consideration for prompt and fair compensation. No private property shall be confiscated save by an order of a court of law.”) 40 Compare ESPA section 52 (“The State shall promote public health and guarantee equal access and free primary health care to all citizens) with INC section 56 (“The State shall promote public health, establish, rehabilitate, develop basic medical and diagnostic institutions, provide free primary health care and emergency services for all citizens”). The INC provides for equal access to primary health care in section 19. 41 Compare ESPA section 51 (“Education is a right for every citizen. The State shall ensure free and compulsory education at the primary level and work to eradicate illiteracy) with INC section 44 (“(1) Education is a right for every citizen and the State shall provide access to education without discrimination as to religion, race, ethnicity, gender or disability. (2) Primary education is compulsory and the State shall provide it free.”) The INC includes the obligation to eradicate illiteracy in section 13(1)(a). 42 DPA section 24, emphasis added.

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inequality, should the DPA acquire constitutional status. For instance, on the one hand the right to freedom, safety and security in the DPA provides more protection than is provided in the INC, since it lists the types of legal instruments that should be the basis of the arrest. On the other hand, it offers less protection since the INC requires the reasons for arrest and detention to be prescribed by law, which is omitted in the DPA.43 Beyond its human rights catalogue, the DPA sometimes guarantees more rights than the INC. For instance, it provides a list of economic, social and cultural rights, which “[a] ll Sudanese citizens have equal rights to”, many of which are not in the INC (e.g., freedom from hunger, safe drinking water and promotion and adequate access to public utilities and infrastructure).44 Finally, whilst the INC provides that “the State shall provide access to education without discrimination as to religion, race, ethnicity, gender or disability”,45 the DPA has explicit provisions on affirmative action for access to education for Darfurians.46 Although it could be argued that this discrimination does not fall under the prohibited grounds of discrimination (because territorial), it is problematic considering the fact that in many parts of Sudan, for instance in the Transitional Areas,47 access to education is even much more limited than in Darfur. This brings us to the final section and back to the problematic consequences of differences between peace agreements on nationwide topics. We also come back to the more general danger of a piecemeal approach to peace through a sequence of regional peace agreements in one country. 5. Problems of the piecemeal approach to peace through various regional peace agreements in one country Problems of legal uncertainty arise because all three peace agreements contain a claim to constitutional status. The CPA has achieved it; in fact, the INC is based on the CPA and to the extent that its provisions are not duly incorporated therein, they shall be considered part of it.48 The DPA and ESPA both state that they shall be incorporated into the INC.49 The DPA

43

Compare DPA section 25 (“Every person is entitled to freedom, safety and security. No person shall be subjected to arrest, detention, deprivation or restriction of her/ his liberty, except in accordance with measures prescribed by the law and, in particular, in accordance with measures prescribed by criminal procedure law or judicial orders.”) with INC section 29 (“Every person has the right to liberty and security of person; no person shall be subjected to arrest, detention, deprivation or restriction of his/her liberty except for reasons and in accordance with procedures prescribed by law.”) 44 DPA section 97, emphasis added. 45 INC section 44(1). 46 DPA article 14. Among others, it provides for “exemption from the payment of school fees for new students of Darfurian origin at all levels, for a period of five years.” 47 The Transitional Areas, also known as the Three Areas, have seriously suffered from the North South war, positioned as the most southern states of the North (Abyei, Southern Kordofan and Blue Nile), some of the inhabitants having allegiances to the South, others to the North. 48 INC section 225. 49 DPA section 1 (“The Republic of the Sudan is an independent, sovereign state; sovereignty is vested in the people and shall be exercised by the State in accordance with the provisions of the National Constitution into which this Agreement shall be incorporated.”) and section 504 (“This Agreement shall be incorporated into the INC. For that purpose, the National Constitutional Review Commission shall, as a matter of priority, prepare a text in the constitutionally appropriate form for adoption in accordance with the procedures specified in the INC.”) and the Abuja Declaration of Principles of 5 July 2005, Annexure 6 to the DPA, principle 16 (“All Agreements reached by the Parties shall be incorporated into the National Constitution”). See also ESPA section 1 (“1. The Republic of the Sudan is a united, independent, and sovereign state. Sovereignty is vested in the people and shall be exercised by the State in accordance with the National Interim Constitution into which this Agreement shall be incorporated.”)

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provides that this shall be in accordance with constitutional procedures; the ESPA does not mention any procedures.50 Thus far, neither the DPA nor the ESPA has been given this status. The National Assembly has approved the DPA, albeit not in an act. It was considered that the National Constitutional Review Commission, charged by the DPA with drafting a text for granting the DPA constitutional status, draft an annex to the INC.51 If that is done, also for the ESPA, the – original- INC, DPA and ESPA will simultaneously have constitutional status. That does not have to cause problems to the extent that they deal with different regions and issues. For instance, in addition to the existing state structure the DPA creates the Transitional Darfur Regional Authority and the ESPA the Eastern Sudan States’ Coordinating Council. However, as illustrated by the above examples, all peace agreements have provisions that claim to apply to all Sudanese or they include further details for existing arrangements.52 Which one is to apply if they diverge but all have constitutional status? Solving conflicts of competing constitutional provisions on the basis of lex specialis and lex posterior undermines the unity and consistency of the constitution. That is even more so if some provisions will be applied to only some part of the population, for instance the exemption from the payment of school fees for new students of Darfurian origin at all levels for a period of five years. Considering the current absence of initiatives, it could be that the DPA and ESPA will only be given constitutional status through incorporation into a new constitution to be adopted after the Interim Period, which ends in July 2011.53 While currently avoiding competing constitutional provisions, it would conflict with the sections in the DPA and ESPA providing that they become part of the Interim National Constitution. Moreover, the INC is not clear on whether a new constitution is immediately necessary. For the scenario that the South decides to secede, the INC only states that the provisions concerning the South “shall be deemed to have been duly repealed.”54 For the rest of the country and in the scenario that the South
50 51

Ibid. Interview with a member of the NCRC, May 2006. 52 See for instance DPA section 70 (“In making further appointments provided for in the INC, or in this Agreement, the President shall take appropriate steps to ensure the fair representation of Darfurians including an equitable share for women.”). Whereas the right to freedom of assembly in DPA section 38 is substantively nearly identical to INC section 40, the DPA, section 38 sub d, adds that “[t]here shall be an independent and impartial office of the Registrar to supervise the registration and performance of political parties. The legal rights and freedoms of the political parties shall be respected by all authorities. The Constitutional Court shall protect these rights and freedoms.” As regards social justice the INC (section 12 (1)) merely provides that “[t]he State shall develop policies and strategies to ensure social justice among all people of the Sudan, through ensuring means of livelihood and opportunities of employment” and that, as regards the economy, (section 10 (1 and 2)) “[t] he overarching aims of economic development shall be eradication of poverty, attainment of the Millennium Development Goals, guaranteeing the equitable distribution of wealth, redressing imbalances of income and achieving a decent standard of life for all citizens. (2) The State shall develop and manage the national economy in order to achieve prosperity through policies aimed at increasing production, creating an efficient and selfreliant economy and encouraging free market and prohibition of monopoly.” The DPA, section 107, however, prescribes more specific policy objectives (“National economic and social policies shall have as their objectives (a) “The creation and equitable distribution of wealth throughout the Sudan, consistent with maintenance of macroeconomic stability and sustainable growth; (b) To ensure that taxes are levied equitably and used for the benefit of all; (c) The decentralization of decision-making on development, service delivery and governance; (d) The provision of safe, secure and open access to markets, goods and services; (e) The recognition of social and cultural diversity; (f) The promotion of social welfare and stability; (g) The need to address environmental degradation; (h) The implementation of principles of sustainable development; and (i) The creation of an environment conducive to foreign investment.”) 53 See CPA Chapter I articles 2 and 2.2. 54 INC article 226 (10).

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remains part of Sudan, the Interim National Constitution “shall continue in force until a permanent constitution is adopted.”55 The legal uncertainties flowing from these competing, potentially constitutional, provisions may create riddles for lawyers, but are a minor problem in comparison with other possible consequences of this multiplicity of peace agreements in one country. A far greater risk is, and now we come back to the main concern, that this piecemeal approach to peace –CPA, DPA, ESPA, we can continue to “ZPA” –actually provides an incentive for more armed conflict in the long run. The CPA was a deal between two parties, but through the Constitution, it became the law of the land. The human rights provisions are for all Sudanese. However, subsequently, Darfur and the East arranged their own peace deals, with special provisions on human rights, education, development funds and participation in the national government. The signal to groups in society that feel marginalised is that the guarantees in the constitution are insufficient to ensure equality and inclusiveness; the groups better make sure they get their own peace deal. The South got it through the CPA, Darfur through the DPA and the East through the ESPA. What message does this give to other marginalised areas in the country? Can they rely on the constitution to be politically and economically inclusive or are they better off if they take up arms to gain a position at a –preferably international- negotiating table, leading to a “*PA”? Also more indirectly, through undermining democracy and the rule of law, the string of peace agreements can be a threat to peace. Opposition parties justifiably complained that the CPA was undemocratic in that two parties determined the constitutional future of the entire Sudan. However, at the time the country did not pretend to be a democracy and the CPA at least provided for democratic elections by 2009. Since the CPA has acquired the status of a constitution, it is no longer a bilateral agreement, but the law of the land. Unlike the CPA, the parties cannot change the INC at their concurring discretion; the National Legislature (National Assembly and Council of States) has to be involved.56 However, the subsequent peace agreements undermine these guarantees of democracy and rule of law. The DPA and ESPA have not yet been incorporated into the constitution and it is not clear how this will be done. In the style of governance by exception, peace agreements become a strong instrument for constitutional change. That is not only so for the national, but also for the state constitutions. More specifically, the sequence of agreements undermines democracy by continuing dividing power on the basis of exclusive agreements. For instance, the DPA determines that no less than twelve seats in the National Assembly shall be allocated to nominees of the SLM and the JEM.57 According to the ESPA, no less than eight seats shall go to the Eastern Sudan Front.58 If the current parties in the National Assembly do not want to provide for these seats, the number of seats in the Assembly will have to be enlarged, although the government has always refused this because it would alter the power sharing percentages of the CPA. Also executive positions are allocated on the basis of power sharing provisions. While the CPA created more positions for the SPLM, the DPA and ESPA provide for Assistants to the
55 56

INC article 226 (9). See supra notes 6 and 7 and accompanying text. 57 DPA section 71. 58 ESPA section 24.

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President, Presidential Advisors, Ministers, State Ministers and positions in the national capital to be nominated respectively by the SLM and JEM, and by the Eastern Front.59 It can be argued that the current governmental structure arranged in the CPA and as laid down in the INC for the period until 2009 has not been democratic from the outset, so that the DPA and ESPA were necessary instruments for the Darfurians and Eastern Sudanese to get their share of power in the centre. That does, however, constitute a dangerous precedent for other regions. Moreover, constructive negotiations are not possible when the insurgents take the CPA as an exemplary starting point for what they want to get for their own region, whilst the government uses the CPA as the end point determining the boundaries of what the insurgents can obtain. Finally, and most fundamentally, the string of peace agreements may undermine the peace because instead of addressing the root causes of the conflicts, they perpetuate them. The root cause of conflict in Sudan is, as we have established above, not contained within regional parameters. It is in essence, as only the preamble of the CPA acknowledges,60 that Sudan is at war with itself. The conflicts have all been characterised as a violent reaction of the Government to insurgencies against political and economic exclusion. For an important part that exclusion consists of the centre’s marginalisation of the periphery. Through its power and wealth sharing provisions the agreements indeed attempt to address this problem. However, the exclusion also consists of exclusion within the periphery as a result of the Government’s policies of divide and rule. The series of peace agreements could perpetuate the policy of governance by exception. The provision on education for Darfurians is only one example of granting rights and preferential treatment to some and not to others. If all agreements acquire constitutional status, the inequality that exists in practice, obtains a legal blessing. It may be rebutted that with such a gigantic country (Darfur the size of France, the East bigger than Poland and the South the size of the Nigeria), one needs different arrangements for different areas, making allowances for the variety in the country’s populations, landscapes, traditions, religions and languages. However, as has been discussed, the agreements are all based on the same template focusing on the centre-periphery relation and, unfortunately, hardly address the local causes of conflict. Moreover, accommodation of diversity is not necessarily done in peace agreements. It is better guaranteed through federalisation (as has been done with the South) and a healthy dose of decentralisation (as the INC provides for in the relation to the states), backed up by fiscal decentralisation and local democracy. Perhaps paradoxically, in order to survive, diversity needs a strong uniform constitution that includes rights that equally apply and are equally enforced.
59

DPA sections 65, 67, 69 and 89; ESPA sections 20, 22, 23 and 36. Compare DPA (“Convinced of the urgent need for a comprehensive Agreement that will finally bring peace and security to the people of Darfur; Believing that this Agreement is a sound basis for resolving the conflict; Resolved that the signing of this Agreement shall be a significant step towards a just, peaceful and lasting political solution to the conflict in Darfur”) with ESPA (“Recognising that political, social, and economic marginalization constitutes the core problem in Eastern Sudan; Conscious of the urgent need for reaching a comprehensive agreement that could address the root causes of the conflict and bring about a just and lasting peace in Eastern Sudan; Convinced that this Agreement provides a sound basis for resolving the conflict; Aware that the signing of this Agreement represents a significant step towards a just, peaceful and lasting settlement to the conflict in Eastern Sudan”) with the CPA (“Conscious that the conflict in the Sudan is the longest running conflict in Africa; that it has caused tragic loss of life, destroyed the infrastructure of the country, eroded its economic resources ad caused suffering to the people of the Sudan. Mindful of the urgent need to bring peace and security to the people of the Sudan who have endured this conflict for far too long. Aware of the fact that peace, stability and development are aspirations shared by all the people of the Sudan.”) Emphases added.
60

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6. Epilogue There are two perhaps obvious yet indispensable qualifications of this article’s concern with the potentially negative consequences of a multitude of separate agreements. First, the critique is mainly directed against the outsiders –politicians, diplomats, advisors, scholars acting as advisors or mediators- pushing and pulling for agreements. They, however, cannot be held responsible for failing agreements if the parties who control the strings are not interested (enough) in peace. Their good will and draft agreements cannot substitute a lack of political will of the parties. Secondly, a long term vision may be better, but it cannot justify avoiding the conclusion of separate agreements that are able to end the fighting. Writing this article in a comfortable library it is easy to emphasise the niceties of a long term vision. However, any agreement is a success if it ends the assaults on villages, civilian displacement, murder and rape that affect millions of people in Darfur until this very day. May this article therefore first and foremost serve as a caveat for those politicians, diplomats, peace negotiators and “peace academics” who follow the cameras of the news caravan from conflict to conflict, from the South, to the West, to the East, to the next hot spot. In view of the risk that a piecemeal approach to peace may enhance conflict, the focus on one crisis should not turn away from a view on the overall picture. The immediate attention that Darfur requires and deserves should not come at the cost of attention for strengthening the overall constitutional framework through which rights and guarantees can be enforced for all Sudanese. These should be translated from paper into reality, from abstract notions into real rights for real people.

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