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IN the MATTER of an AD HOC ARBITRATION PCA No IN THE MATTER OF AN AD HOC ARBITRATION PCA No. GOS-SPLM 53,391 PURSUANT TO THE ARBITRATION AGREEMENT IN THE HAGUE, THE NETHERLANDS BETWEEN THE GOVERNMENT OF SUDAN AND THE SUDAN PEOPLE’S LIBERATION MOVEMENT/ARMY THE SUDAN PEOPLE’S LIBERATION MOVEMENT/ARMY MEMORIAL 18 DECEMBER 2008 Table of Contents I. SUMMARY OF ARGUMENT.........................................................................................1 A. The Comprehensive Peace Agreement and Abyei Protocol....................................1 B. The ABC Experts.....................................................................................................2 C. The ABC Experts Did Not Exceed Their Mandate .................................................3 D. The GoS’s Claim that the ABC Experts Exceeded Their Mandate Contradicts Well-Settled Principles of Finality and is Subject to the Most Demanding Standards of Proof....................................................................................................5 E. The GoS has Excluded or Waived Any Rights to Claim that the ABC Experts Exceeded Their Mandate .........................................................................................6 F. If the Tribunal Were to Conclude that the ABC Experts Exceeded Their Mandate, then the “Area of the Nine Ngok Dinka Chiefdoms Transferred to Kordofan in 1905” Encompasses the Territory Extending North from the Current Bahr el Ghazal/Kordofan Boundary to Latitude 10º35’N ..........................7 G. The “Area of the Nine Ngok Dinka Chiefdoms Transferred to Kordofan in 1905” Encompasses All of the Territory Occupied and Used by the Ngok Dinka in 1905...........................................................................................................9 H. Alternatively, an Excess of Mandate by the ABC Experts Does Not Preclude this Tribunal from Relying Upon the Commission’s Determinations...................12 II. THE ABYEI REGION AND THE NGOK DINKA .....................................................13 A. Sudan and the Abyei Region: Geography, Ecology and Climate.........................13 1. Sudan − Generally......................................................................................13 2. The Abyei Region......................................................................................17 B. The Ngok Dinka.....................................................................................................23 1. The Dinka and the Ngok Dinka .................................................................23 2. The Migration of the Ngok Dinka to the Abyei Region ............................24 3. The Ngok Dinka and the Mahdiyya...........................................................26 4. Ngok Dinka Tribal and Social Structure....................................................27 5. Ngok Dinka Religion .................................................................................34 6. Ngok Dinka Land.......................................................................................35 7. Ngok Dinka Cultivation.............................................................................36 8. Ngok Dinka Cattle .....................................................................................39 9. Ngok Dinka Homes and Villages ..............................................................43 C. Peoples Neighboring the Ngok Dinka ...................................................................46 1. The Ngok’s Arab Neighbors – Misseriya ..................................................46 2. The Baggara and the Misseriya..................................................................46 3. Other Dinka and Other Nilotic Tribes (Nuer and Shilluk) ........................54 III. THE ABYEI REGION AND THE NGOK DINKA AT THE BEGINNING OF THE 2OTH CENTURY..............................................................................................57 A. Anglo-Egyptian Condominium in Southern Sudan and the Abyei Area Prior to 1910........................................................................................................................57 1. The Anglo-Egyptian Government’s Administration of Sudan ..................57 2. The Anglo-Egyptian Condominium’s Administration of Bahr el Ghazal and Kordofan Between 1899 and 1910 .........................................59 - i - LONDON 241465v1 3. The Development of Sudanese Provincial Boundaries in the Early 20th Century.......................................................................................................63 4. The Development of Provincial Boundaries Between Bahr el Ghazal and Kordofan in the Early 20th Century.....................................................68 5. The Territory of the Ngok Dinka in 1905..................................................75 6. Transfer of the Ngok Dinka Chiefdoms to Kordofan in 1905...................75 B. The Anglo-Egyptian Condominium’s Administration of Southern Sudan After 1910........................................................................................................................78 1. Governance of the Anglo-Egyptian Condominium Prior to Independence .............................................................................................78 2. Sudanese Independence .............................................................................79 3. Pre-Independence Sudan and the South.....................................................80 IV. NORTH-SOUTH CIVIL WAR IN SOUTHERN SUDAN AND THE ABYEI AREA ................................................................................................................................83 A. North-South Civil War – 1955 to 1972..................................................................83 B. Addis Ababa Accords – 1972 ................................................................................85 C. Tentative Peace in Southern Sudan – 1973 to 1983 ..............................................89 1. The GoS’s Failure to Implement the Addis Ababa Accords .....................89 2. Non-Implementation of the Addis Ababa Accords in Abyei.....................91 D. The GoS’s Dissolution of the Southern Regional Government.............................92 E. Second Civil War: Famine and Destruction in Abyei Area – 1983 to 2005..........93 1. The Second Civil War in the South ...........................................................93 2. The Second Civil War in the Abyei Region ..............................................94 V. THE COMPREHENSIVE PEACE AGREEMENT, THE ABYEI PROTOCOL AND THE ABYEI ANNEX.....................................................................99 A. Negotiations of Comprehensive Peace Agreement..............................................100 1. Machakos Protocol in July 2002..............................................................100 2. Karen Talks in 2003.................................................................................102 B. Negotiations of Abyei Protocol ...........................................................................105 C. The Abyei Protocol-- May 2004..........................................................................107 D. CPA Implementation Modality Abyei Annex - December 2004.........................108 E. Comprehensive Peace Agreement - January 2005...............................................109 VI. THE WORK OF THE ABYEI BOUNDARIES COMMISSION..............................110 A. The ABC’s Activities...........................................................................................110 1. Composition of ABC ...............................................................................110 2. The Procedures of the ABC .....................................................................111 3. The Work of the ABC..............................................................................113 4. The Experts’ Determinations and the ABC Report .................................115 5. The Government of Sudan’s Refusal to Accept the ABC Report ...........119 B. The Abyei Arbitration Agreement.......................................................................121 VII. THE ABC DID NOT EXCEED ITS MANDATE.......................................................123 A. The ABC Experts Fulfilled Their Mandate to Define and Delimit the Abyei Area......................................................................................................................124 1. The ABC Experts’ Mandate Was to “Define and Demarcate the Area of the Nine Ngok Dinka Chiefdoms Transferred to Kordofan in 1905, Referred to Herein as Abyei Area”..........................................................125 2. The Parties Collaboratively Constituted the ABC...................................131 - ii - LONDON 241465v1 3. The ABC Experts and the Parties Collaboratively Implemented the Procedural Steps Set Forth in the Terms of Reference and Rules of Procedure .................................................................................................135 4. The ABC Experts Repeatedly Explained their Understanding of the Parties’ Definition of “Abyei Area,” Without Any Suggestion by the GoS that this Definition Exceeded the ABC’s Mandate or that the ABC Lacked Authority to Adopt this Definition..............................................140 5. The ABC Report Indisputably “Defined and Demarcated the Area of the Nine Ngok Dinka Chiefdoms Transferred to Kordofan in 1905, Referred to herein as Abyei Area”...........................................................144 B. There is No Conceivable Basis for Denying Effect to the ABC Report
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