Part 2
Civil-military relations and transitional justice

Sudan’s civil-military balance and the demands for justice

After a prolonged military regime or internal armed conflict with widespread human rights violations, claims for justice are often strong and vocal. One of the big questions raised in Sudan, is whether the current transitional government has the capacity to address the vast human rights violations committed during Bashir’s three decades of authoritarian rule, including crimes against humanity, war crimes, and genocide. The recent discovery of mass graves has renewed the urgency of transitional justice processes. The Hamdok government has pledged to put in place various transitional justice mechanisms, and Bashir has already been sentenced to two years in prison for corruption. Whether the ex-president will be extradited to the International Criminal Court is still an open question, Sudan is preparing a transitional justice bill to deal with these human rights violations within its own court system. The Juba Peace Agreement includes strong promises of transitional justice. However, what is the likelihood that the courts can proceed with such prosecutions as long as the military is still strong in Sudan, and there are people allegedly involved in, or partly responsible for, the Khartoum massacre of June 2019, who are part of or have close ties to the current government? In short, what are the prospects for successful prosecution in the current political context?

In situations where there has been a very delicate political transition, i.e., where you have an agreement between the democratic forces and the military, there are frequently close connections between those who have committed abuses and the government. In the case of Sudan, there are people in the current government who have connections to the Bashir regime. The Sovereign Council that has been set up after the revolution has eleven members: five of them are civilians selected by the FFC and five members are selected by the Transitional Military Council. The eleventh member is a member which both parties have agreed upon. After the signing of the Juba Peace Agreement in October 2020, three members were added to the Sovereign Council; all three representatives of the armed groups who were signatories to the historic peace deal.

The presence of military actors in the Sovereign Council is strong.; at least half of the members are military actors. This includes the head of the Rapid Support Forces (RSF), formerly known as the notorious Janjaweed militia, who are responsible for war crimes and crimes against humanity in Darfur and, more recently, the Khartoum massacre. If the military has been responsible for the human rights violations, at least part of the transitional government is not likely to run the risk of provoking the military into action by threatening with criminal prosecutions, since the government is trying to govern the country and needs political stability.

Experience from peace agreements ending internal armed conflict or transitions from authoritarian rule to democratic rule in Africa, Latin America and other parts of the world shows that it is generally not possible to hold the military criminally accountable for human rights violations and war crimes as long as the military continues to wield significant power, either directly, or through close political allies in the new government.

Some lessons regarding civil military relations and criminal justice in Latin America

After a prolonged military or internal armed conflict with widespread human rights violations, claims for justice are often strong and vocal. Yet, experience shows that these claims rarely translate into justice. The main, and most important, lesson we have gained from studying democratizing processes across the world over a period of over 70 years 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. Although five high-ranking military leaders were successfully prosecuted and found guilty by Argentine courts, they were soon after pardoned by the next president and let out of jail – in the name of “reconciliation”. In short, what is frequently referred to as a “success story” of prosecutions was very limited at that.

An analysis of 13 different Latin American countries which have had a transition from either an authoritarian military regime to a democratic regime, or from a long-standing civil war to peace, clearly shows the following: If the military is strong, prosecutions are not going to happen at the time of transition, even with a civilian government in place. What we do observe, though, is that as time goes by, political tensions become less acute and the room for political negotiations and criminal justice for human rights abuses widens.

In general, the nature of transition conditions whether trials for human rights violations are likely to be held or not. Transition type characterizes the way a state changes from undemocratic, repressive, or exclusionary rule (such as authoritarianism, military dictatorship, or apartheid) to a more democratic regime type. Depending on who controls the transition process and the balance of power between the incoming government and leaders of the outgoing regime, transitions may be negotiated (“pacted”), controlled, abrupt, or revolutionary. They may take place “from above” (top-down/imposed) or “from below” (bottom-up/driven by the people/grassroots), may be swift or prolonged. The transition type shapes the initial scope of politically available choices of transitional justice mechanisms.

There are at least two lessons that Sudan can draw on from similar transitions in Latin America and other states in Africa/the rest of the world.

Lessons for Sudan:

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