International ADR: Peace by Arbitration? Sudan's Government and Opposition Agree (Web)

A peace process in Sudan may be hinging on the execution of an arbitration agreement signed last month by the country's government, and its chief opposition. The arbitration agreement covers the fate of a region that has been the scene of intense fighting, countless civilian deaths, and displacement of tens of thousands of people.

On July 11, representatives from the Government of Sudan and the Sudan People's Liberation Army/Movement (SPLA/M) delivered to the Permanent Court of Arbitration, based in the Hague ( http://www.pca-cpa.org), an arbitration agreement. The agreement is available at: http://www.pca-cpa.org/upload/files/Abyei%20Arbitration%20Agreement.pdf.

Under the agreement, signed three days earlier, the government and the SPLA/M agreed to refer their dispute to final and binding arbitration.

The SPLA/M, based in southern Sudan, is a predominantly Christian Sudanese rebel movement that became a political party. The National Congress Party is the governing official political party of Sudan. The SPLA/M joined the Sudanese government in 2005, as part of the United Nations- and United States-brokered “Comprehensive Peace Agreement.”

The agreement sought to end a 20-year war between the Arab and Muslim-dominated north, and the mainly Christian and animist black southerners, and led to the formal recognition of southern Sudanese autonomy.

Under the agreement, the SPLA/M joined the government and occupied about one-third of the government positions. But the SPLA/M withdrew from the government last October, alleging violations of the peace agreement.

The arbitration agreement centers on the disputed oil-rich Abyei area, an enclave straddling the north-south border. The area is the peace agreement’s most volatile aspect. The agreement sets out the “Protocol on the Resolution of Abyei Conflict.” The protocol defines the terms of a special administrative status for the Abyei Area throughout the interim period of the peace agreement.

Under the protocol, the Abyei Boundary Commission was “to define and demarcate” the Abyei region, a precondition for implementing the protocol.

The commission was composed of five members of the Sudan government delegation, five members of the SPLA/M's delegation, and five international, and impartial, experts, chosen at the parties’ request. The commission found that the area belonged to the south, and presented its report to the Sudanese government on July 14, 2005. According to the peace agreement’s “Abyei Appendix,” the experts’ report was to become final and binding on the parties. But the Sudan government delegation refused to accept the commission's report.

Under the peace agreement, both the northern and southern armies should have left the Abyei area, and a joint force was to be instituted there. Instead, the fighting has continued. Clashes in mid-May caused many deaths, and displaced about 50,000 people.

As a result, the SPLA/M and the National Congress Party signed the arbitration agreement on June 8, 2008, and a Memorandum of Understanding about two weeks later. Both the arbitration agreement and the memorandum, as per the agreement, will be applied by the arbitration tribunal as binding on the parties.

The arbitration agreement specifically provides for establishing rules; scope of the dispute; applicable law; the arbitration process; number and appointment of arbitrators; seat of the arbitration in the Hague, Netherlands; language, which will be English; arbitration proceedings; award; notification of agents and counsel; cost of arbitration; and enforcement. The arbitration proceedings will commence on the date the tribunal is formed, and the final award should be issued within a period of six months from the commencement date. See Article 4, Section 2, at the link above.

Article 5 lays out the tribunal selection process in detail. Each party will appoint two arbitrators who will be responsible for selecting a fifth arbitrator to fill out the panel, in consultation and under the supervision of the Permanent Court of Arbitration. Arbitrators may come from the court’s list, or may be selected outside of it.

If the tribunal finds that the commission experts did not exceed their mandate, then the tribunal must issue an award for “the full and immediate implementation” of the commission report. If, on the other hand, the tribunal finds that the commission exceeded its mandate, then it must define the area boundaries based on the parties’ submissions.

Article 9 specifies the award’s execution: “[T]he Presidency of the Republic of Sudan shall ensure the immediate execution of the final arbitration award.” Furthermore, the agreement will enter into force on the day the two parties sign it.

Enforcement, however, isn’t assured, because of the political instability. In a move likely to affect the arbitration, on July 14, Luis Moreno-Ocampo, the Hague-based International Criminal Court’s chief prosecutor, formally requested an arrest warrant, equivalent to an indictment, for Sudan President Omar Hassan al-Bashir, on charges of genocide and crimes against humanity in Darfur. A summary of the case is available here: http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/14_07_08_darfur.pdf.

The United Nations is now withdrawing noncritical staff from the Darfur region, as the National Congress Party warned of “more violence and bloodshed” in Darfur if President al-Bashir is indicted. See http://www.cbc.ca/world/story/2008/07/14/darfur-un-withdrawal.html.

Critics say that the arrest warrant will hamper the peace efforts, including the arbitration agreement. But Prosecutor Moreno-Ocampo told the New York Times: “Some people have said that for me to intervene at this point is shocking. I say what is going on now is shocking. Genocide is going on now and it is endangering the lives of many more people.” See http://www.nytimes.com/2008/07/15/world/africa/15sudan.html?_r=1&hp&oref=slogin.

But Moreno-Ocampo has the strong support of Darfuri refugees, who say they want Bashir held responsible for the killings.  A New York refugee group had scheduled a July 22 rally near the United Nations headquarters to voice its support for the prosecutor.  See http://www.darfurpeopleny.org/.

It remains unclear how arrest warrant and pending prosecution will affect the Sudanese government, and the arbitration agreement’s enforcement provisions.

Also July 14, in a private White House meeting, President Bush met with Richard Williamson, special envoy to Sudan to discuss the implementation of the peace agreement and the situation in Darfur. According to White House press secretary Dana Perino, Bush and Williamson “talked about finding a lasting solution to the border area, along with a formula for revenue sharing, which remains a key to a lasting peace in the area.” See http://www.whitehouse.gov/news/releases/2008/07/20080714-5.html.

The Sudan Tribune also reported on the meeting, adding that “[t]he U.S. administration appeared skeptical on an agreement signed between North and South on the status of Abyei that would provide for international arbitration on the border demarcation." See http://www.sudantribune.com/spip.php?article27877.

The Comprehensive Peace Agreement can be found at http://www.sudanarchive.net/cgi-bin/sudan?a=d&d=Dl1d36.

The Abyei Boundary Commission report can be found at: http://www.sudanarchive.net/cgi-bin/sudan?a=d&d=Dl1d18.

-–By Jillian Lee Hunt, CPR Intern