In the early 2000s hundreds of thousands of non-Arab Sudanese civilians were killed, tortured, raped and displaced from their villages in a campaign of genocide waged by Sudanese government-funded and armed Arab militias known as the Janjaweed against non-Arab rebel groups. In 2005 the United Nations’ Report of the International Commission of Inquiry on Darfur proposed (inter alia) a compensation commission be established to adjudicate claims from victims of war crimes in Darfur, whether those crimes were committed by government or by rebel forces.217 This recommendation for a compensation commission has to date not been acted upon by the Security Council or by the international community, although the fact it was made (and not repudiated) appears to be more evidence that the international community expects that individuals have the right to be compensated for grave violations of IHL at the hands of armed forces.
213 Final Award: Ethiopia’s Damages Claims, op. cit. (note 202), Award (following para E) (106); Final Award: Eritrea’s Damages Claims, op. cit. (note 202), Award (following para 21) (96).
214 Hollis, op. cit. (note 201).
215 Both states did however cover all costs of the EECC and EEBC; L. Brilmayer, C. Georgetti and L. Charlton, International Claims Commissions: Righting Wrongs after Conflict (Edward Elgar Publishing, 2017), Chapter 5 (The Financial Structure of Claims Commissions).
216 The author has been unable to confirm whether the Eritrean government paid the five individual award sums to its nationals.
217 Report of the International Commission of Inquiry on Darfur to the Secretary-General, UN Doc. S/2005/60, paras. 590-603; C. Tomuschat, “Darfur: Compensation for the Victims”, 3 Journal of International Criminal Justice 579 (2005).
53 However, in 2006 the Sudanese government reached a peace agreement with one of the rebel groups in which it committed to pay USD30 million in compensation in Darfur. President Omar al-Bashir reportedly increased this sum to USD300 million (comprised of USD100 million of Sudanese funds, and a loan of USD200 million from China) in 2007.218 There were reports of small-scale village ceremonies where compensation of 20,000-700,000 Sudanese Dinars (USD80-2800) per person was provided, and comments by the State Governor that full compensation was a “national, religious and ethical duty on the government”.219 However, the rebel group involved soon repudiated the agreement, and conflict resumed between the government, rebels and Arab groups. Amongst this unrest, the International Criminal Court’s issue of arrest warrants for al-Bashir in 2009 and 2010, and South Sudan’s independence in 2011, a new peace agreement was reached in 2011 between the government and one of the smaller rebel groups (the Liberation and Justice Movement: LJM) entitled the Doha Document for Peace in Darfur. It contained a pledge for development aid from Qatar and other international donors in return for government commitments regarding governance and disarmament of pro-government militias, and a number of structures were set up for implementation of these arrangements. One important element was a victim compensation regime - Article 17 required payment of a USD250 lump sum as part of a return package for each displaced family returning to their homes.220
Less promisingly however, most other rebel groups have spurned the agreement and insisted on new negotiations, the LJM may also have stepped away from the agreement, and fighting has spiked since 2013.221 The UN Secretary General’s report on UNAMID’s operations in April 2014 bemoaned the lack of engagement with the Doha Document for Peace in Darfur by its signatories and by the
218 The amount under the original agreement was USD30 million; the other rebel groups considered this amount too low and were still unhappy when it was increased to USD100 million. See O. McDoom, “Sudan Pledges $300 million Darfur Compensation: Carter”, Reuters, 3 October 2007.
219 “Sudan Compensates Darfur Conflict Victims”, Sudan Tribune, 18 May 2005.
220 Agreement between the Government of Sudan and the Justice and Equality Movement - Sudan on the Basis of the Doha Document for Peace in Darfur, Article 17); available at: https://peacemaker.un.org/sites/peacemaker.un.org/files/SD_130406_Sudan-JEMSOnDDPD.pdf.
221 “Darfur Conflict”, Thomson Reuters Foundation News, 31 July 2014. See also “Darfur Peace Process and Chronology”, Human Security Baseline Assessment for Sudan and South Sudan, 2 September 2014; available at: http://www.smallarmssurveysudan.org/facts-figures/sudan/darfur/darfur-peace-process-chronology.html. S/RES/2363 (29 June 2017) noted some improvements in the level of violence, although the security situation remains dire.
54 international community222, but the Security Council has reaffirmed its commitment to the Doha Document as a comprehensive blueprint for peace as recently as July 2018223, and it is also supported by the African Union and the Arab League.224
As complex is the political and military situation and grim the current prospects for peace amongst the warring sides, the fact that attempts at peace agreements have twice contained a victim compensation element, including a mechanism for dispersing the funds in the case of the 2011 agreement, is a promising recognition of its importance. Although the UN’s International Commission of Inquiry on Darfur recommended compensation, it appears that the Sudanese government and the rebels involved may have been motivated by political, ethnic and/or economic considerations rather than legal ones, as well as by strong religious and cultural expectations mandating compensation. That said, broad international consensus on victim compensation is evident in the international mediation of peace talks, the offer of funds by international donors (China, Qatar and others), and the continued endorsement of the Doha Document for Peace in Darfur by the Security Council, African Union and the Arab League. This confirms that all parties clearly recognise the need for compensation in any final peace arrangement.