Global Policy Forum

By Leslie Lefkow *

Yesterday's signing in Nairobi of the Naivasha Protocols was a historic moment. The Naivasha agreement, ending two decades of war in southern Sudan, was three years in the making. Until the last moment, a final peace deal remained uncertain. In many respects, the agreement is to be welcomed. The north-south war produced some of the world's worst disaster statistics: 2 million dead and 4 million driven out of their homes, almost one in five of the entire Sudanese population.

There is, however, an important flaw in the deal. Under the terms of the Naivasha agreement, senior members of the Sudanese government responsible for heinous policies and abuses in southern Sudan get off scot-free. There are no provisions for any kind of justice mechanism in the north-south peace accord—no truth commission or compensation for the many victims.

This key failure of the Naivasha negotiations has had important knock-on effects. The lack of accountability has contributed to the repeat strategy of appalling abuses that the world has witnessed in Darfur, in western Sudan, in the last two years. It is the same government, after all, and many of the same officials crafted the brutal policies used in both Darfur and the south.

The tactics have been strikingly similar, including a devastating scorched-earth campaign, with ethnic militias attacking on the ground supported by government forces bombing from the air. The main difference has been the speed at which the atrocities have been carried out—and the resulting rate of displacement. While it took almost 20 years to displace millions of people in the south, in Darfur it has taken only two years to force more than 1.6 million people from their homes. At least 70,000 are reckoned to have died, probably more.

Even as US and other western mediators pressed government and rebel representatives to finalise a north-south deal in recent weeks, a government offensive in Darfur continued to drive thousands from their homes and land. Women leaving camps to collect firewood are raped on a daily basis. The 1,000 African Union troops stationed in Darfur to monitor a moribund ceasefire lack the numbers to have any real protective power or deter abuses. If this region is to have a more stable future, it is important that the failings of Naivasha should not be repeated.

Unfortunately for the people of Darfur, the media and political interest in Darfur peaked several months ago—but failed to produce the requisite numbers of international troops or political pressure to force Khartoum to stop its campaign of ethnic cleansing. Government troops and militia members continue to rape and kill, harass and loot civilians with impunity. Until now the Sudanese government, adept at divide-and-rule and manipulation, has successfully evaded accountability for the atrocities it has committed.

A key difference between Darfur and the south, however, is the international commission of inquiry, authorised by the UN security council, which will issue its findings later this month. The commission is conducting a three-month investigation into serious violations of international human rights and humanitarian law that have been committed, and is tasked with identifying perpetrators of crimes with a view to ensuring accountability. This body offers real hope that those who have led and implemented the heinous abuses in Darfur will be brought to book.

Given the extent of the crimes and widespread impunity for the crimes, the security council should act on the commission's report by referring the situation in Darfur to the international criminal court. The newly created court has the capacity to prosecute war crimes, crimes against humanity and genocide.

Since Sudan has not ratified the requisite treaty, however, the only way Darfur can be investigated by the international criminal court is through a UN security council referral. A referral to the court could for the first time persuade political leaders in Khartoum and Darfur that they could face serious prosecution.

This, in turn, could help prevent more civilians from losing their homes and livelihoods and spending more months and years in camps. It would also help to ensure that there is justice for the horrific crimes committed against the occupants of Darfur's mass graves, justice that has so far been denied to their fellow Sudanese in the south, but which will be sorely needed if Darfur is ever to know lasting peace.

About the Author: Leslie Lefkow, a researcher with the Africa division of Human Rights Watch, is the author of Darfur in Flames and other HRW reports on Darfur.