Is Sudan Ready for Transitional Justice?

The negotiated agreement guiding Sudan’s new transitional government for the next three years promises to work for comprehensive peace and justice. The agreement promises to hold members of the Islamist regime accountable for all crimes committed against the Sudanese people. Can justice and accountability for past human rights abuses be delivered in Sudan any time soon? These are all tall orders, especially considering that important military members of the old regime are key players in the transitional government structures. Justice takes a long time to achieve and requires political courage, judicial independence and that the responsible are no longer key players. What can Sudan learn from transitional justice processes in Latin America?

Written by Senior Researcher Elin Skaar

“Freedom, Peace, and Justice”

Many have suffered from human rights violations and violence committed by the Islamist regime in war-torn Sudan. Former President Omar al-Bashir has been charged with war crimes and crimes against humanity by the International Criminal Court (ICC). The negotiated constitutional declaration was signed on 17^th August 2019 by the Transitional Military Council (including Bashir’s old supporters and culprits) and the Forces for Freedom and Change (negotiating on behalf of the protesters). Both parties made wide commitments to legal reform, to rebuild and improve the legal and judicial system, and to ensure independence of the judiciary and the sovereignty of law.

There are widespread vocal demands from the Sudanese people for justice and accountability.

Especially the Khartoum massacre on June 3^rd 2019 at the end of Ramadan, where the military literally crushed a peaceful sit-in in front of the military headquarters in Sudan with brutal force, fuelled popular demands for justice. At a UN Security Council meeting in October this year, Alaa Salah, portrayed as the icon of the Sudanese revolution in international media, asked for the international community’s support to meet the demands for ending impunity. What then must the Sudanese transitional government do?

I am an expert on transitional justice, and not an expert on Sudan. Yet, I believe there are important lessons for Sudan to be drawn from the transitional justice processes in Latin America.  

No victorious army has ever been prosecuted

The main, and most important, lesson we have gained from studying these democratizing processes elsewhere is that no victorious army has ever been prosecuted. This is universally true. Of all the countries in the world that have gone through transitions from either war to peace or from military/authoritarian dictatorship to democratic rule in recent history, only two (Greece in 1975 and Argentina in 1985) tried to prosecute their military at the time of transition. The world-famous trials of the generals in Argentina took place right after the transition to democratic rule, after the military had lost the Falklands War against Britain. What was envisioned and promised to the people by the newly elected democratic president Raúl Alfonsín, was to ensure widespread prosecution of the military and justice for the over 12,000 deaths during the dictatorship period (1976-83). This was soon put to shame. Facing prospects of prosecution, the military revolted. Not only once, but twice. Alfonsín in response hurriedly backed off from his promises and ordered the courts to prosecute only the top brass. In the end, the courts prosecuted only nine generals, five of which were found guilty and ended up in jail. The convicted generals never completed their sentences. The next elected President of Argentina, Carlos Menem, pardoned them all and let them become free men again. That was the success story from Latin America.

Justice takes time

Latin America can offer more useful lessons for Sudan. From being a continent dominated almost entirely by either military dictatorships or civil wars in the 1970s and the 1980s, practically all countries but Colombia had made successful transitions to democratic rule by the early 2000s. How did the new democratic governments deal with those responsible for the continent’s massive human rights violations committed under authoritarian rule? In the close to twenty other Latin American countries that made a transition from non-democracy to democracy in the 1980s and 1990s, none repeated the Argentine experience of trying to prosecute its military at the time of transition. Why? Because the first and most important aim of a newly installed democratic government is simply political survival.

Governments are not likely to engage in activities that provoke the military into reactions that can threaten their fragile power.

Instead, therefore, rather than prosecute the military, the post-authoritarian regimes in Latin America frequently established truth commissions to investigate the human rights abuses. Where political tensions with the military were particularly high or where links between the outgoing military elites and the newly elected democratic elites were particularly strong at the time of transition, the democratic governments were even reluctant to set down truth commissions. It could take years, sometimes decades from the violations were committed until a truth commission was given the mandate to investigate the violations (as in Brazil). Many of these truth commission unearthed massive torture, disappearances, rape, forced exile, killings, even genocide. This detailed information of atrocities committed spurred more demands for justice from victims and their families. The almost uniform response from the governments was to pass amnesty laws precluding the prosecution of the military and other state officials responsible for human rights violations. Some governments passed amnesty laws even before truth commissions started their work, anticipating what was coming. Others hastily passed amnesty laws when they realised the potential dynamite in the truth commissions’ findings – including in some cases specific recommendations to prosecute the military. 

Justice in the form of criminal prosecution of alleged human rights perpetrators was not really perceived as a viable option at the time of transition in Latin America. Years later, as political power relations have shifted over the decades, and as new generations of military recruits have replaced those who once were responsible for the abuses, the courts in at least some countries have started to investigate human rights abuses and to prosecute the military. In a small number of countries – with strong courts and a long distance to the violence, like Argentina - the prosecutions are thorough and many. With hundreds of (former) military in the docs or in court procedures, Argentina is, in fact, now called the regional protagonist of transitional justice. Other countries that more recently have come out of internal armed conflict, like Guatemala and El Salvador, have been much slower in holding the military to account. Things take time.  

Three lesson for Sudan:

1. As long as the military is still strong and controls the arms, there will be no prosecutions.

For all practical purposes, the different branches of the Sudanese military are still calling the shots in terms of controlling the weapons in Sudan.

2. As long as there are strong links between the incumbent regime and the outgoing regime responsible for the violations, there will be no prosecutions.

Although there is a transitional government in place in Sudan, the break with the widely hated Islamist regime of Bashir is far from clear. One of the eleven members of Sudan’s Sovereign Council that is the ruling authority in the three-year transitional period is Mohamed Hamdan Daglo (popularly called "Hemetti”).  He is the leader of the Rapid Support Forces (RSF) formerly known as Janjaweed; a government supported militia responsible for uncountable atrocities in the Darfur conflict. RSF also too lead in the attack against peaceful protesters during the Khartoum massacre.

3. If prosecutions are to take place, the courts must be sufficiently strong and independent to take on these cases, and they must have the sufficient legal basis on which to prosecute.

The Sudanese judiciary is in shambles and clearly does not have the institutional capacity to prosecute. Reforming the civilian courts is a long-term goal. Prosecuting the military in military courts is not a viable option either. Furthermore, the negotiated agreement states that, “(t)he task of reforming military bodies is entrusted to military institutions in accordance with the law”. We cannot reasonably expect anybody with blood on their hands to cheer for legal reforms that may result in their own prosecution.

Three conditions that need to be present:

1. There must be claims for justice;
2. There must be political will to prosecute; and
3. The courts must enjoy a minimum degree of independence and have competence to rule in cases of this kind.

In Sudan, only the first condition is present. Judging from experiences from other parts of the world, the Sudanese should realize that they are in for the long haul if they want justice. It may come at some point. But it will most definitely take a long time to achieve.