The humanitarian crisis in Darfur, ranked as the worst in the world, continues to deteriorate despite pledges by the Sudanese government to stop the spread of violence in its western territories. It is estimated that 50,000 people have died and a million fled their homes so far as a result of the conflict. Women have been raped, children orphaned and starved and disease threatens tens of thousands.
The African Union (AU), chaired by Nigerian President Olusegun Obasanjo, is leading a regional effort to resolve the conflict. Part of its mandate is to provide a protection force for displaced and terrorised Sudanese and to head an international monitoring team in Darfur. It will host peace talks in a few days in Abuja. Along with these commendable efforts, the AU should strongly consider adopting another less costly measure: sending a team of property lawyers to Sudan.
To date, most discussions of the crisis, and most proposals for its resolution, have focused on the ethnic element: Arab militias terrorising black Sudanese. There have been reports that the militia, known as Janjaweed, may be engaged in government-sponsored ethnic cleansing and genocide. It is wholly appropriate that the international community condemn and seek an end to these atrocities and look to human rights law as a vehicle for punishing wrongdoers.
The awful spectre of genocide may, however, be diverting attention from one of the underlying causes of this crisis - the ongoing dispute over legal rights to access land and water. Arab militias have taken up the banner of pastoralists, migratory herders whose traditional rights of access to grazing lands and watering holes are threatened when black farmers, who are in competition for the same resources, try to restrict that access. As resources in the region become increasingly scarce, conflict escalates. Peaceful means of settling these disputes have failed and resulted in today's large-scale violence.
This basic scenario should resonate with Americans. After all, as Hernando De Soto reminds us in The Mystery of Capital, our history is rife with property-related violence (though not, of course, on a scale anything like what's occurring in Darfur). European settlers fought with Native Americas, cattlemen fought with sheep herders, ranchers fought with farmers, miners fought with miners - all over the allocation of property rights. De Soto points out that this violent past "is many nations' present." Sadly, it is Sudan's present. But, it need not be Sudan's future.
The African Union has a unique opportunity to provide what's missing in the debate on Darfur: a serious discussion on property conflict. Human rights law can be used to punish wrong doers in Darfur, but property law is needed to resolve the root causes of the problem. Indeed, if the AU deals in a meaningful way with underlying property conflicts in Sudan, it will go a long way towards quelling ethnic tensions.
One benefit of framing the peace talks in terms of property rights is that there are clear and relatively inexpensive ways to address the problem. In the short-term, the AU should insist on the creation of impartial property claims tribunals in Sudan. Such courts would provide an avenue for identifying and cataloguing legitimate property claims and for settling disputes peacefully. AU nations might provide the jurists for such tribunals, as they would be sensitive to the thorny nature of property and land tenure issues in Sudan, which brings customary law, common law, statutory and Islamic jurisprudence to bear on issues involving communal, private, and public ownership.
In the long term, AU efforts should continue to be augmented by the larger international community, which can provide Sudan with the technical assistance needed to create a vigorous, transparent, accountable and accessible property rights environment.
This is a much more serious challenge. Sudan currently receives poor grades in international indexes for its protection of property rights. It may be that the government lacks the will to define and protect legitimate property and tenure rights. If so, the Sudanese are destined for continuing chaos.
Perhaps though, as De Soto argues, the American West can provide a useful guide for the developing world. By helping the Sudanese to identify and integrate property rights into a formal legal system, the AU and the international community, would do a great service for the people of Sudan. A key lesson of the American past is that such rights may not only propel wealth creation but also promote peace.