Part 3:
The courts and transitional justice

Sudan: “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). When the Transitional Military Council (including Bashir’s old supporters and culprits) and the Forces for Freedom and Change (FFC) signed the constitutional declaration, 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 have been 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 sexual abuse, bullets and brutal violence, fueled popular demands for justice. At a UN Security Council meeting in October 2020, 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. Women have particularly demanded an end to impunity for sexual violence. How can these demands for justice be met?

Apart from the fact that the delicate political situation in Sudan makes criminal prosecutions for human rights violations highly unlikely (see Part 2: Transitional justice and civil-military relations), there is another big challenge: The condition of the courts. The Sudanese judiciary is in shambles after three decades of Bashir’s Islamization policies and prolonged internal armed conflict and does not have the institutional capacity to prosecute. Although the current government has signaled a progressive strategy by appointing Judge Nemat Abdallah as Sudan’s new Chief Justice – the first women ever to head the highest court in Sudan– , reforming the civilian courts is a long-term goal. Prosecuting the military in military courts is not a viable option either. It is worrisome that a military court in Khartoum has ruled to ban media coverage of the trials of defendants accused of involvement in July 2019 coup attempt, allegedly “not to harm justice”. Furthermore, the Constitutional Declaration clearly 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.

The Juba Peace Agreement stresses the empowerment of trandtional courts to facilitate transitional justice in the country, especially in Darfur. These traditional justice mechanisms are expected to judge by customary law for crimes related to conflict which do not fall under the jurisdiction of the ICC, the Special Tribunal for Darfur, the national judicial system or the planned Truth and Reconciliation Commission. Although such traditional courts may bring transitional justice closer to local communities, it should be noted that applying customary laws to crimes such as conflict related sexual violence may be in conflict with principles of women's human rights as enshrined in international conventions.

When is criminal prosecution for human rights violations likely to take place? 

International research shows that for prosecutions for human rights violations 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.

Below are some reflections on how, historically, other countries in the world have dealt with the issue of prosecuting those responsible for gross and systematic human rights violations.

 

Prosecute and punish^[1]

After periods of authoritarian rule or civil war, where human rights abuses have been rife, a central question after the transition to democratic rule is what to do with the perpetrators. To prosecute and punish the guilty, where evidence allows conviction, is one of the central transitional justice mechanisms for dealing with past violations. Punishment, or retributive justice in the form of trials, was the dominant response to World War II crimes and was again placed on the international transitional justice agenda with the onset to democratic transitions in the 1970s and 1980s. However, normatively speaking, prosecution is not uncontroversial, and politically as well as legally, it is often very hard to carry out in a satisfactory manner.

 

Why prosecute?

Prosecution is perceived as necessary for a wide range of different, but interconnected, reasons: it is morally correct; it individualizes guilt; it will have a deterring effect on future crimes; and it is a prerequisite for (re)establishing the rule of law and strengthening democratic practices. A key underlying assumption is that if hideous crimes go unpunished, people in the new regime after the transition will be unable to trust the state in general and the legal system in particular. At worst, state violence will resume. Yet, despite morally sound and legally good reasons for why states should prosecute, historically, prosecution of perpetrators of human rights violations has been a rare practice.

 

Obstacles to prosecution

There are many political and legal obstacles to prosecution. First, the transition type imposes limits as to what is politically possible to do in an often very fragile political setting, where preserving the peace or democracy is a top priority for the new incumbents (discussed in Part 1).

Second, the chances of prosecution are slim if the new powerholders either are part of or have close ties to the regime responsible for the abuses. Even established democratic states are not very likely to prosecute their leaders for human rights abuses (discussed in Part 2).

Third, legal obstacles to prosecution include amnesty laws, which may be absolute (granting impunity to all violators for all types of crimes), partial (impunity to only some or for only some crimes), or conditional (impunity granted for confession of crimes – such as in the South African case) (discussed in the Introduction).

A fourth obstacle is the state of the judiciary itself. After prolonged conflict, the judiciary may be so weak and disorganized that prosecution and fair trials simply are not possible. This is particularly true for poor countries with weak state institutions and where the judiciary may have been partially or totally out of operation for a number of years.

Fifth, although strong and institutionalized judiciaries may have the capacity to prosecute, they may simply be unwilling to hear and/or rule in cases on human right violations for ideological or political reasons. 

Finally, a practical obstacle to prosecuting human rights abuses may be the sheer number of violations. For instance, in Guatemala, an estimated 200,000 civilians were assumed killed during the thirty-six years long civil war. In Rwanda, around 800,000 people were massacred in a period of hundred days during the 1994 genocide. No judiciary in the world, no matter how institutionally strong and willing, could handle such a case load. Under such circumstances, the real political and legal choice has been to either not punish at all (as initially in the Guatemalan case, where a general amnesty was passed, granting impunity for all crimes) or to punish very selectively (the ‘big fish’ in the ad hoc International Criminal Tribunal for Rwanda (ICTR) and the ‘small fry’ in the Rwandan national courts and local gacaca courts).

 

Where do trials take place?

Obstacles notwithstanding, prosecution and conviction may take place in different kinds of court systems: in national courts (as in Greece and Argentina), in ad-hoc international tribunals established by the United Nations Security Council (the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR)), in ad-hoc mixed tribunals (as with those for Cambodia and Sierra Leone), in permanent international courts (the International Criminal Court, ICC), or in other national courts (where the person is prosecuted and convicted outside his own country, such as the prosecution of Argentine military in Spanish, Belgian and French courts).

 

Outcomes

Prosecutions may be perceived as fair or unfair, favorable or detrimental to the rule of law, depending on whose view is taken into account. To be perceived as fair and to have a deterring effect, and hence to contribute positively toward the rule of law and democratization, prosecutions need to be conducted in a fair and free manner with objective judging of evidence. One of the great problems in dealing with transitional justice issues is the lack of reliable evidence and witnesses. This is especially true in cases where violence has been widespread and where much time has passed between when the crime was committed and when it is addressed in the courts. Procedural problems involve the reliability of the evidence (which again may in part be linked to the quality and professionalism of the prosecution services), the quality and impartiality of the judges, and the law to be applied. Lack of adequate resources when conducting trials is a general source of frustration and limitation, in international as well as in national courts.

 

Another big problem when trials are conducted simultaneously in national and international courts (such as in Rwanda and the former Yugoslavia) is the discrepancy between maximum penalties allowed by different levels of courts. The ICTR issued life sentences to the masterminds behind the Rwandan genocide and allowed sentences to be served in comfortable jails in European countries. This stands in stark contrast with Rwandan national courts imposing the death penalty on the foot soldiers in the genocide after they had been detained for years under inhuman prison conditions. This apparent injustice provoked negative reactions among large parts of the Rwandan population. If prosecutions and punishment are out of line with what the population perceives as fair, they may not have their intended positive effects – at least not in the short run. One may still argue that poorly conducted or even unfair trials may be better in the long run for the rule of law, democracy, and a stable peace than no trials at all, since they at least signal the government’s and judiciary’s willingness to address the issue. Nevertheless, the trials should be of a standard sufficiently close to international requirements in order to be effective at enforcing the rule of law.

 

Lessons for Sudan

Experiences from Latin America show that three conditions must be present for the military to be successfully prosecuted for gross and systematic human rights violations:

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, as of December 2020 (see link to Part 4: Civil society and transitional justice). Politically, the current government is divided on what to do about human rights violations. Some with political power want to challenge the military and opt for justice; others have close ties to the military and do not wish to take the route of criminal prosecutions. Very importantly, even if there had been political backing for criminal prosecution, the Sudanese courts currently do not have the institutional strength, capacity and resources to conduct free and fair trials. Not surprisingly, public trust in the courts is low.

Legal reform and court reform need to be made a priority to make courts strong and independent. Only when judges are independent and the courts have sufficient resources, are prosecutions for human rights violations likely to take place. Since this is likely to take a long time, 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.

 

 

Notes

^[1] This section is based on Skaar, Elin. 2013. "Prosecute and punish." In Encyclopedia of Transitional Justice, edited by Lavinia Stan and Nadya Nedelsky. Cambridge University Press.