In Darfur, justice will be key to sustainable peace

On May 6, 2004, Human Rights Watch (HRW) published a report alleging that the Sudanese government and its allied “Janjaweed” militias had committed systemic attacks on the civilian populations of the African Fur, Masalit and Zaghawa ethnic groups that amounted to “ethnic cleansing and crimes against humanity”.

The government and its Janjaweed allies, the report said, deliberately slaughtered thousands of Fur, Masalit and Zaghawa; raped women; and demolished villages, food stockpiles and other critical supplies.

On May 9, 2024, almost 20 years to the day it had exposed genocide in Darfur, the HRW released another report titled “The Massalit Will Not Come Home”: Ethnic Cleansing and Crimes Against Humanity in El Geneina, West Darfur, Sudan.

In it, the HRW alleged the paramilitary Rapid Support Forces (RSF) – the formalised version of the Janjaweed militia – and allied paramilitaries have committed a new genocide in el-Geneina, the capital city of Sudan’s West Darfur state, from April to November last year, killing thousands of people and leaving hundreds of thousands as refugees.

And the carnage in Darfur is far from over. The HRW’s Belkis Wille decried the RSF’s ongoing siege of North Darfur’s capital, el-Fasher, and called for an end to “the new cycle of atrocities in Darfur” just last week on this very page.

The RSF and its allies are still able to systematically kill, maim and displace Darfuris with near complete impunity because Africa’s leaders have repeatedly missed opportunities to deliver justice to the region over the years.

Indeed, the atrocities we are witnessing in Darfur and across Sudan today could well have been avoided if the architects and perpetrators of the genocidal atrocities of the 2000s were brought to book in the first place.

Countless opportunities for justice have been missed in the past 20 years.

In 2004, then-United Nations Secretary-General Kofi Annan established the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur.

The commission’s damning report, published in January 2005, led to the UN Security Council referring Sudan to the International Criminal Court (ICC).

In 2009, the court issued an arrest warrant for then-Sudanese President Omar al-Bashir for war crimes and crimes against humanity committed under his watch in Darfur. Later, it added genocide to the charges.

The president’s arrest and prosecution then would have undoubtedly changed the trajectory of the country and curtailed the powers and reach of the genocidal militias it armed and supported.

Claiming the pursuit of justice and accountability would be an obstacle to the realisation of peace in Sudan, the leaders of the African Union (AU) refused to cooperate with the ICC and arrest al-Bashir. As such, they helped al-Bashir evade international justice.

Regrettably, while undermining the ICC’s efforts to deliver justice in the international arena, African leaders also failed to heed the advice of the AU’s own officials and experts, missing opportunity after opportunity to deliver justice to long suffering Darfuris within the region.

In 2004, acknowledging its responsibility to deliver justice to the people of Sudan, the African Commission on Human and Peoples’ Rights (ACHPR) undertook steps to investigate human rights violations and chart a path forward for the country.

To this end, the Mission of the African Commission on Human and Peoples’ Rights to Sudan took place July 8-18, 2004.

The fact-finding mission visited camps for displaced people and met officials from the Sudanese government, senior civil servants, and representatives of national and international humanitarian organisations in Khartoum.

After the visit, the mission recommended the establishment of an International Commission of Enquiry, comprising the UN, AU, Arab states, and international humanitarian and human rights organisation, to probe human rights violations in Sudan and to ensure perpetrators of atrocities were brought to justice.

Specifically, the mission wanted the commission to investigate the role of the military, police and other security forces in the Darfur conflict as well as the involvement of rebel movements and armed militias, in particular the Janjaweed, the Pashtun, the Pashmerga and the Torabora.

The commission, it further explained, would identify those responsible for war crimes, crimes against humanity, and other violations of human rights and international humanitarian law in the country and ensure that they were held accountable for their actions.

The mission’s recommendations included the disarmament and demobilisation of all irregular armed groups operating illegally within the Darfur region. And it urged the government of Sudan to abide by its obligations under international human rights and humanitarian law and in particular under the African Charter on Human and Peoples’ Rights to guarantee the basic human rights of the Sudanese people.

Al-Bashir, as expected, ignored an overwhelming majority of the mission’s recommendations.

However, African leaders, surprisingly, also failed to follow through on the well-meaning advice from their top human rights experts.

So the International Commission of Enquiry, as envisioned by the ACHPR, failed to materialise, and al-Bashir continued his reign with impunity.

Any talk of regional accountability and justice mechanisms for Sudan was practically abandoned until the ICC took action in the international arena.

In July 2008, just a week after the ICC prosecutors announced their request for an arrest warrant for al-Bashir, the AU’s Peace and Security Council voiced its demand for a homegrown judicial process for Sudan.

It called for the creation of an African Union High-Level Panel on Darfur to submit recommendations on “accountability and combating impunity, on the one hand, and reconciliation and healing on the other”.

Led by former South African President Thabo Mbeki, the panel consulted widely in Sudan and finally recommended a hybrid court for Darfur with Sudanese and non-Sudanese legal experts, a truth and reconciliation panel, and wide-ranging reforms of the country’s criminal justice system.

Al-Bashir baulked at the idea of launching a comprehensive judicial process, especially one that involved foreign experts, and mostly disregarded this panel’s advice as well.

In the following years, African leaders refused to push for any other transitional justice instrument, international or regional, seemingly due to fears that the pursuit of justice would derail efforts for peace. As a result, al-Bashir never faced any accountability for the crimes he facilitated in Darfur and the RSF remained able to continue its abuse of Darfuris with impunity.

Today, as Darfur suffers a devastating new wave of atrocities, the AU must change course. It must acknowledge sustainable peace requires accountability and an end to impunity. It must make a strong and explicit commitment to achieving justice for all in Darfur, be it through Sudanese, African or global legal instruments.

Of course, Africa’s leaders have every right to criticise the methods and approaches of the ICC. They also have every right to demand justice is delivered through local and regional instruments in Africa.

In their approach to the conflict in Sudan, however, they missed a crucial opportunity to make this point and lay the foundations for a strong, independent and responsive human rights culture in Africa.

Had they agreed to implement the proposals advanced by the ACHPR and the African Union High-Level Panel on Darfur, they would have not only helped Darfuris find justice but also showed the ICC that it is indeed not needed in the region.

Regrettably, they chose to ignore the advice of their own experts and allowed the perpetrators of egregious human rights violations to get away scot-free. As a result, we are where we are today. The culture of impunity is still strong in Sudan, and the Fur, Masalit and Zaghawa communities are still facing slaughter.

All who have facilitated genocide in Darfur must be subjected to transitional justice processes and mechanisms and other accountability processes, irrespective of their positions. This is the only way to achieve peace. Africa’s leaders can no longer afford to deny justice to Africans.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.