Current Border Disputes in Sudan and South Sudan: An Illustration of the Failure of the Sudanese Peace Process Chia Shu Xuan NUS 2014 Emirates NBD Middle East Essay Prize Winner Introduction The mediation in the Sudan-South Sudan conflict is an example of a state that is built on fault lines where sovereignty of South-Sudan was deemed to be the ultimate solution in the 2005 Agreement1. The problem is that merely splitting the territories will not necessarily result in peace, which is seen in many disputed territories (such a Kashmir2). There are a number of disputed borders in the Sudan and South-Sudan split, which link to traditional land uses (such as grazing) by the indigenous populations3. The inference is that in a country where there a number of indigenous populations, traditional tribal boundaries and differential approaches to land, there cannot be division of land and its access merely through national and international political agreement4. This raises a number of questions on whether mediating with the political elites in some international conflicts will result in implausible agreements when it relates to specific local issues, such as a state border through grazing land5. This paper will explore the extent that the mediation process in the Sudan and South-Sudan conflict is avoiding peace by failing to engage with the local disputes, especially when there are a number of conflicts based upon the confusion associated with the borderlands. Resultantly, the Sudan/South-Sudan mediation may have reached the success that it envisaged (i.e. a two-state solution), however, due to the complexity of the region and the interests of local groups, elitist mediation will not bring sustainable peace to the region. Therefore, this paper will recommend that it is necessary that civil society and local Knox, C “The Secession of South Sudan: A Case Study in African Sovereignty and International Recognition” (2012) College of Saint Benedict and Saint John’s Political Science Paper 1, 2 2 Misra, A (2001) “The Centrality of Kashmir in India-Pakistan Security Dynamics” International Politics 38(103), 104 3 Craze, J Dividing Lines: Grazing and Conflict Along the Sudan-South Sudan Border (2013) HSBA Working Paper 30, 6 4 ibid, 10 5 ibid, 10 1 1 interests come to the forefront of mediation, in order to ensure that the division of Sudan and South-Sudan will create peace. The Sudan Conflict – An Overview The civil war in Sudan started in 1955 and is the longest in African history. There are a number of fault lines; however the continued dispute centred on the wealth that derives from oil6. One of the most explosive fault lines was the separation between the Islamic North and the non-Islamic South, which made finding a two state solution difficult because the oil reserves were in the Middle7. Consequently, the militarised Islamic North in the post-colonial era ruled with an iron fist that did not give into the diverse interests and tribal differences to the South8. The result was a long-standing civil war between the North and the Sudan People’s Liberation Movement (SPLM) and Sudan People’s Liberation Army (SPLA). These two groups kept a semblance of order in the South and throughout the period of civil war held semi-autonomy over the South9. The implication is that the South could separate from the North as a self-determined nation because it was already treated in a semi-federalist manner. Nevertheless, actual independence and even true selfdetermination (i.e. separation from the military rule of Khartoum) was difficult due to the oil resources that both sides laid claim to10. Thus, the intervention of the international community, most specifically the USA, in the peace talks of 2004 and the final agreement (i.e. the Comprehensive Peace Agreement 2005) was necessary or the conflict would continue. The overall aim of the CPA 2005 was to provide the North and South with shared wealth, as well as ensure that the South was able to self-rule in order to eventually create the Republic of South Sudan11. al-Abdin, ATZ “The Outstanding Issues between the Two Sudans: A Way to Peace or Conflict” Sudan Tribune June 23, 2012 Retrieved from: http://www.sudantribune.com/spip.php?article43062 accessed August 27, 2014 7 ibid 8 ibid 9 ibid 10 ibid 11 ibid 6 2 Self-determination resulted out of mediation and negotiation, as opposed to war. The interest of the USA derived from the fears of terrorist groups from Sudan, which meant that stability in the region was important12. Additionally, to have a non-Islamic state (i.e. South Sudan) could be an important strategic move for the USA and its allies13. Resultantly, the development of a negotiated agreement that would ultimately end in the separation of the state had political benefits to the USA. Although, separation as not official until South Sudan had developed a comprehensive governing body and a referendum on the North and South of Sudan agreed to secession14, the reality was the negotiated agreement would have this outcome. The reasoning for this is that the long war between the regions indicated that this solution would be deemed preferable, especially as the international community would recognise the state. The Two State Solution and the “Comprehensive” Peace Agreement (CPA 2005) The development of a two-state solution that derived from the power sharing agreements that culminated with the 2005 negotiations was a necessary outcome (i.e. the Comprehensive Peace Agreement 2005 (CPA 2005))15. The rationale for this outcome is to bring stability to a region that was associated with Islamist terrorist activities that threaten the global community16. Nonetheless, there are fundamental issues that remain between the two Sudans because the 2009 referendum that brought sovereignty to the South failed to deal with a number of issues that are central to the day-to-day lives of individuals on the border, which means that conflict remains17. The inference is that unless the mediation is taken to the local level, it is unlikely that the conflict on the two Sudanese borders will not be settled. Thus, the primary failure of the CPA 2005 is that it focused upon the elites and Dagne, T “Sudan: Humanitarian Crisis, Peace Talks, Terrorism and US Policy” CR Issue Brief for Congress June 9, 2005, 9-10 13 ibid, 10 14 al-Abdin (n6) 15 Dagne (n12), 9 16 10 17 al-Abdin, (n6) 12 3 failed to recognise the interests and realities of the persons living on the contested borders18 (i.e. the so-called comprehensive agreement in 2005 (i.e. the CPA 2005) was not so comprehensive after all19). The separation of the state of Sudan occurred before there was proper determination of a number of issues, which is why the conflict is still present (albeit in a new form). Article 67 of the Southern Sudan Referendum Act 2009, which paved the way for separation, identified that there were a number of outstanding issues that were to be negotiated into the Comprehensive Peace Agreement. These issues included: (i) nationality rights after division; (ii) currency (i.e. retention of the same currency or separation); (iii) the role of the joint integrated units of national security and intelligence (i.e. would they remain); (iv) the division of public service and the rights of public servants (i.e. can those who want to remain in North Sudan migrate to positions in the state); (v) determination of whether Southern Sudan should be bound by international agreements and covenants; (vi) the division of assets and debts; (vii) oil division; (viii) environmental and contractual obligations linked to oil fields; (ix) riparian rights; (x) property rights; and (xi) any other issue that may arise20. The indication is that there are a large number of issues that have to be consolidated between the parties, which in many cases affect the everyday lives of individuals on the border. Thus, the processes of extending the CPA 2005 may not be appropriate because it is focused on the political elite and not the interests of the affected local communities. The Role of the African Union (AU) in the Mediation of the CPA 2005 and their Failure for a Sustainable Resolution The AU played a pivotal role in the mediation of the CPA 2005 under the leadership of former South African president Thabo Mbeki. The South African mediator was an important choice because it had the trust of the Southern Sudanese due to the Harrigan, S South Sudan: Waiting for Peace to Come L2GP Working Paper September 2011, 2 Verwijk, M “Is Peace not for Everyone?” in Grawert, E Forging Two Nations Insights on Sudan and South Sudan (OSSREA, 2014), 219 20 al-Abdin (n6) 18 19 4 support of the African Nationalist Congress (ANC) for the South Sudanese liberationists21. The support of the AU through South Africa meant that there was a significant amount of political pressure placed on the Northern power to allow the Southern region to achieve self-determination22. When the USA also supported the initiatives of the AU, in addition to UN missions, the result inevitably ended in an internal partition that would eventually result in self-determination23. Consequently, the political and structural concerns of the elite were satisfied in the CPA 2005 (i.e. the road to a two-state solution). Thus, the role of the AU in the mediation of the CPA 2005 was successful, however, there was an overall failure in the process to achieve sustainable peace. It would be incorrect to argue that the CPA 2005 is a complete failure because it does meet the power/resource sharing agreements through the development of two states24. This means that the high-level political interests have a mediated agreement that has resulted in the expected end25. These high level interests, however, cannot engage with local disputes and the specifics of putting a sovereign border across grazing (and other traditional industry) territories that never existed before26 (i.e. tribal borders are generally malleable and do not follow the same rigidity of international sovereign states27). The dispute over land and traditional rights in this land is a long-established issue that arises after the introduction of or delimitation of sovereign borders28. The rights of local communities will have little effect when a border is placed in their way because it is the right of the sovereign Hendricks, C & Lucey, A “South Africa and South Sudan” (2013) Institute for Security Studies Policy Brief 49, 2 22 ibid, 2 23 ibid, 2 24 ibid (n8) 25 Kimenyi, MS “Future Engagement between the South Sudan and the Republic of Sudan” in Brookings Institute South Sudan: One Year After Independence June 2012, 8 26 Salman, SMA “The Abyei territorial dispute between North and South Sudan: Why has its resolution proven difficult” in Unruh, J and Williams, RC Land and Post-Conflict Peace Building (Earthscan, 2013), 31 27 ibid. 32 28 ibid, 30 21 5 government to rule its boundaries29. Thus, for the mediation process to ensure that there is a sustainable future, it is necessary that the local level is engaged. Thus, this paper will now turn to the specific problems that are associated with mediation processes that do not engage effectively with the local communities, especially when there is border delimitation. In doing so, it will draw upon problems in other regions that are experiencing the same problems. Mediation – Engaging with all Stakeholders The premise of many political conflicts are social issues, however, these social issues are multidimensional and need to be examined at all levels of dispute30. In the Sudan-South Sudan dispute the higher political disputes were focused upon, which is indicative of the interests of the external political players31 (i.e. USA and the international community bringing stability to provide better policing of the terrorist threats). The engagement with key international players can be an important incentive to mediate a solution32 because it provides a basis for a common ground to be found, additionally, the dispute can be deemed of sufficient importance that the parties can constructively put forward their demands33. The problem that is associated with the role of the third party is that the local concerns and demands can be lost because they are not deemed to be of political importance to ending the conflict34. In fact, one of the reasons that there was agreement for splitting Sudan was due to perceived local conflicts. Salman identifies that: “The argument amongst some Northern circles that because of the difficulties the Southerners were encountering in governing the South, and because of Johnson, DH “New Sudan or South Sudan? The Multiple Meanings of Self-Determination in Sudan’s Comprehensive Peace Process” (2013) Civil Wars 15(141), 144 30 Bercovitch, J. Social Conflicts and Third Parties. (Westview Press,1984), 25 31 Miall, H, Ramsbottam, O & Woodhouse, T Contemporary Conflict Resolution: The Prevention, Management and Transformation of Deadly Conflicts, (Polity, 2011) 55 32 Melin, MM & Svensson., I “Incentives for talking: Accepting mediation in international and civil wars” (2009) International Interactions, 35(3), 253 33 Ross, S “United States Involvement in Conflict Resolution in Africa” Cornerstone Global: Blue Paper December 21, 2012 34 Craze (n3), 12 29 6 their inter-tribal differences, disputes, and conflicts, they would opt for unity. Those raising such arguments allowed themselves to forget that those same factors are also characteristics of, and prevalent in, the North”35. The basis for the arguments in separation were deemed sufficient to bring an overall stability by separating the country into two based upon Islamic and nonIslamic grounds36. These grounds are not sufficient to understand the specific concerns of the local communities that will be affected by the border delimitation. As Figure 1 illustrates there remain disputes over land, which are associated with traditional grazing rights37. The implication is that it is necessary to ensure that there is a mediation process that is in place, which represents these traditional disputes that have been exacerbated through the placement of a border. In fact, the concerns raised by the North with respect to the instability of the South are illustrated in grazing and tribal raids that have been experienced internally in this region (Figure 2)38. The primary implication is that the mediation process during the CPA 2005 failed to recognise that there were a wider set of historic disputes that had to be engaged, in order to bring sustainable peace to Sudan and South Sudan39. Therefore, it is the local disputes in this conflict that has to be directly mediated; otherwise there will be continued instability between the two states40. Salman, SMA “South Sudan Road to Independence: Broken Promises and Lost Opportunities” (2013) Pacific McGeorge Global Business & Development Law Journal 26(2), 345-6 36 ibid, 345 37 Craze (n3), 12 38 Ottaway, M & El-Sadany, M Sudan: From Conflict to Conflict Carnegie Endowment: Middle East May 2012, 5 39 Craze (n3), 10 40 ibid, 11 35 7 Figure 1: Sudan-South Sudan Border – Disputed and Claimed Areas41: 41 ibid, 10 8 Figure 2: South Sudan Disputes42: International Mediation at the Local Level The role of mediators will be necessary in the local resolution of land disputes because creating legal boundaries or using force will not be effective to deal with 42 Ottaway, & El-Sadany, (n38), ii 9 this local level problem43. However, some of the techniques and processes that were used when dealing with the higher level political mediated solution should be considered, most notably the power and resource (wealth) sharing model44. The border and tribal disputes, which are linked to riparian and land rights mean that the resource sharing framework should be considered as a possible way forward, however, as Figure 1 illustrates some of these rights now cross a sovereign border, this will mean that there is permeable approach to border crossings. This may not be a desired approach because it will threaten the sovereignty of each of the states and rebels can use these crossings and threaten national security45. Nonetheless, the history of Africa illustrates that placing manufactured borders can create further disputes without engaging the local communities46. The implication is that the process that has been used is through the interests of the elite, which has resulted in the division of the country is no longer appropriate. The process needs to diverge from merely representing the North and South of Sudan elites; rather these interests have to be migrated to the local level, in order to develop a resolution that will accommodate the needs of the local communities, whilst effectively dealing with the national security concerns that may arise from a permeable border with respect to traditional grazing. The role of the mediator at a local level is different to that of the international and national level because the interests of the parties are fundamentally different47 (i.e. national interest will include natural resource acquisition, whereas the local community is concerned with land rights for livelihood). Arguably, at the national level there will be a greater greed quotient that needs to be considered and dealt with, in order to come to a peaceable solution48. However, as these interests are Greig, MJ. “Stepping into the Fray: When Do Mediators Mediate?” (2005) American Journal of Political Science, 49(2): 254 44 The Protocol on wealth-sharing: Signed in Naivasha, Kenya, on 7 January 2004; The Protocol on Power-sharing: Signed in Naivasha, Kenya, on 26 May 2004 45 Craze (n3), 21 46 Salman (n26), 32 47 Arai, T Creativity and Conflict Resolution: Alternative Pathways to Peace (Routledge, 2009), 2 48 Mutanda, D "The art of mediation in resolving African conflicts: lessons for Zimbabwe and Africa", (2013) Journal of Aggression, Conflict and Peace Research, 5(130), 134 43 10 based within the international framework, such disputes can be easier to resolve through international mediation, negotiation and arbitration49. For example, the territorial dispute in the Abyei Region, at a national level, was resolved in the Permanent Court Arbitration50. In this arbitration the border in this region was redrawn (see Figure 1), in order to provide a fairer split in this oil rich region, whereby concessions were made on both sides to create a cemented border that is necessary for the division into two states51. However, the interests and the concessions that the PCA considered were focused on the elite interests that were espoused in the civil war and continued conflict52. The mediator (or arbitrator) when settling a dispute will only engage those issues that will resolve the conflict with the parties present and identified (i.e. mediation can be very limited unless third party concerns at a local level are identified as necessary to a solution)53. Consequently, the mediator has a bias towards the conflict as presented to him/her, which means that a local view can be ignored54. It may be that the local view is not necessary to engage, in order for a sustainable solution to be achieved. Nonetheless, the cultural and tribal history (including conflicts) will need to be engaged in Sudan, which is a common theme in the African states55. Therefore, the approach of mediators have to change when it comes to localised disputes, especially when historical and cultural challenges are in place. Cultural Border Disputes Beardsley, K, Quinn D, Biswas B, & Wilkenfeld J "Mediation Style and Crisis Outcomes" (2006). Journal of Conflict Resolution 50(58), 65 50 Government of Sudan v The Sudan People's Liberation Movement/Army (Abyei Arbitration), Final Award of the PCA of 22 July 2009. 51 Craze, J “Unclear Lines: State and Non-State Actors in Abyei” in Vaughan, C, Schomerus, M & de Vries, L The Borderlands of South Sudan: Authority and Identity in Contemporary and Historical Perspectives (Palgrave Macmillan, 2013), 62 52 ibid, 46 53 Svensson, I., “Bargaining, bias and peace brokers: How rebels commit to peace” (2007). Journal of Peace Research, 44(114), 116 54 Brahimi , L & Salman, A "In Pursuit of Sustainable Peace: The Seven Deadly Sins of Mediation",(2008) New York, Center on International Cooperation retrieved www.cic.nyu.edu/internationalsecurity/docs/7sinspolicybrief.pdf accessed August 27, 2014, 4 55 Craze (n51), 62 49 11 Although the disputes on the Sudan and South Sudan border are linked to land and land rights, it is necessary to recognise that these disputes are ingrained in the historical-cultural framework56. It is in such disputes that there has to be full engagement with the interests and aspirations of the parties on a personal, as opposed to formalistic basis. As Arai identifies “Conflict remains intact as long as parties with different aspirations are unable to interrupt their confrontational patterns of interaction, breaking patterns, which come to form what the parties may consider a conventional reality, invites resistance inevitably. Therefore taking unconventional action for conflict resolution requires mobilising the cognitive and emotive resources of the parties and other attentive stakeholders, in such a way as to break the conventional patterns that have sustained their conflict”57. To a certain extent the Sudan and South Sudan conflict is a cultural one, however, the elites recognise that to meet the ends of shared wealth and power that will allow for separate states requires international recognition58. This means that the motivations of the political elite will be more prone to be influenced by international opinion59, especially when the USA became involved. This means that the mediator style will be significantly different in the case of a dispute between the political elite in a civil war scenario. Border disputes between local communities, on the other hand, require engagement at a local and personal level because this is how these disputes affect the individual60. The role of the mediators in these new disputes may have been deemed minor during the civil war and peace process, however, the instability on the border and within South Sudan illustrates that the approach of the mediation process will need to move away from the focus on elites and to personal level. This is a necessary ibid, 62 Arai (n47), 2 58 al-Abdin (n8) 59 Rauchhaus RW “Asymmetric information, mediation and conflict management” (2006). World Politics. 58(207), 221 60 Craze (n51), 62 56 57 12 process in transitional processes from a single to two state solution, whereby transformation must be the focus of the mediators61. The key state actors will still play an important role, but engagement with stakeholders and representatives of interest groups will be required to ensure that the correct communication is being engaged62. Correct communication and direction of the mediation will be required to create the trust that is required for the disputing local communities to engage the dispute resolution process63. The nature of the historical cultural disputes, which are present in local communities can be one of the most difficult types of dispute to settle because of the much personalised nature of the dispute64. Land and the rights over land are linked to the rights of the tribe and can be reflective of their status and power in the region. The implementation of borders through traditionally contested lands will intensify local disputes if not properly considered within the conflict resolution process. The interests in Sudan/South-Sudan conflict resolution through the PCA 2005 were focused upon the two main parties and the international community’s drive to ensure that there is stability meant that ingrained cultural conflicts were not considered, which have manifested themselves in the current border and land disputes. Therefore, the disputes that are currently present in this region are intrinsically linked to the conflict that has resulted in the two-state solution, nonetheless, the focus of mediation and dispute resolution needs to move to the local level. Conclusion The mediation in the Sudanese conflict has to be examined on a multilateral basis, in order to determine whether it was a failure. The CPA 2005 and the eventual Teitel, R “Transitional Jurisprudence: The Role of Law in Political Transformation” (1996-7) 106 Yale LJ 2009, 2018 62 Richards, M. C. “Separating and Connecting: The Vessel and the Fire” in Ryan MJ The Fabric of the Future: Women Visionaries Illuminate the Path to Tomorrow (1998, Conari Press) 213; 63 Kydd A. “When can mediators build trust?” (2006) American Political Science. Review 100(449). 453 64 Craze (n3), 22 61 13 achievement of self-determination and statehood for South Sudan can be identified as a success for the mediators in the process. Nevertheless, there was a fundamental failure in the mediation process because the resolution was limited to the higherlevel political interests. Arguably, the reason for this is that statehood of South Sudan is in the political interests of South Africa, the AU and the USA65. However, the local issues that are the cause of the current conflicts illustrate that the mediation failed to be sustainable. Thus, the CPA 2005 may have been a success in the short term, nonetheless, it is not sufficient for ongoing peace. Rather, this needs to be achieved through multilevel negotiation and mediation with local communities and the political elite. In conclusion, the Sudan/South Sudan conflict mediation that resulted with the CPA 2005 was a success because it created two independent states. Nevertheless, the conflict remains because in the peace making process the focus on elites failed to deal with the conflicts that may arise amongst local communities, especially when a sovereign border was placed through traditional grazing lands. The role of mediation will be important to this transformed dispute, however, the approach and techniques of the mediators will have to change. Arguably, the nature of the dispute will be more caustic because it is dealing with one of the most personal areas of conflict, local and neighbourhood land and land rights disputes. The mediator in the current land disputes will need to directly communicate with the local communities, as well as the national and commercial (i.e. oil) interests in the region. It is unlikely that the border disputes between Sudan and South Sudan will allow for border changes, however, it is necessary to ensure that a resolution is met to allow traditional grazing practices to continue. This means that the history of power and wealth sharing between the governments (albeit contentious) should be drawn upon, in order to provide border crossing rights with regards to these traditional practices. This will be a very difficult set of rights to negotiate, especially as rebels in both regions threaten the stability of the border. Nonetheless, it is 65 Hendricks & Lucey (n21), 2 14 plausible that through the settlement of local community rights that the security of the border can be strengthened because local communities will not want their grazing and land rights to be ceased by unconnected rebels. Therefore, it is plausible that through a direct and open mediation process that engages the local community, the hearts and minds of the conflicting tribes can be engaged with in order to increase (as opposed to threaten) stability. The implication of this is that a multidimensional conflict mediation framework needs to be developed from the local through to national/international levels, in order to bring sustainable peace to Sudan and South Sudan. 15 Legal Agreements/Cases: Government of Sudan v The Sudan People's Liberation Movement/Army (Abyei Arbitration), Final Award of the PCA of 22 July 2009. Protocol on Power-sharing: Signed in Naivasha, Kenya, on 26 May 2004 Protocol on wealth-sharing: Signed in Naivasha, Kenya, on 7 January 2004 References: al-Abdin, ATZ “The Outstanding Issues between the Two Sudans: A Way to Peace or Conflict” Sudan Tribune June 23, 2012 Retrieved from: http://www.sudantribune.com/spip.php?article43062 accessed August 27, 2014 Arai, T Creativity and Conflict Resolution: Alternative Pathways to Peace (Routledge, 2009), 2 Beardsley, K, Quinn D, Biswas B,& Wilkenfeld J "Mediation Style and Crisis Outcomes" (2006). Journal of Conflict Resolution 50(58) Bercovitch, J. Social Conflicts and Third Parties. (Westview Press,1984) Brahimi , L & Salman, A "In Pursuit of Sustainable Peace: The Seven Deadly Sins of Mediation",(2008) New York, Center on International Cooperation retrieved www.cic.nyu.edu/internationalsecurity/docs/7sinspolicybrief.pdf accessed August 27, 2014, 4 Craze, J “Unclear Lines: State and Non-State Actors in Abyei” in Vaughan, C, Schomerus, M & de Vries, L The Borderlands of South Sudan: Authority and Identity in Contemporary and Historical Perspectives (Palgrave Macmillan, 2013), Craze, J Dividing Lines: Grazing and Conflict Alon the Sudan-South Sudan Border (2013) HSBA Working Paper 30 Dagne, T “Sudan: Humanitarian Crisis, Peace Talks, Terrorism and US Policy” CR Issue Brief for Congress June 9, 2005 16 Greig, MJ. “Stepping into the Fray: When Do Mediators Mediate?” (2005) American Journal of Political Science, 49(2) Harrigan, S South Sudan: Waiting for Peace to Come L2GP Working Paper September 2011, 2 Johnson, DH “New Sudan or South Sudan? 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