Research studies

Transitional Justice: What are the Favorable Options ? The Case of Sudan

 

Prepared by the researcher  – Dr. Abdelaziz Mohamed Hamad Satti

Democratic Arab Center

Journal of Afro-Asian Studies : Ninth Issue – May 2021

A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin. The journal deals with the field of Afro-Asian strategic, political and economic studies

Nationales ISSN-Zentrum für Deutschland
ISSN  2628-6475
Journal of Afro-Asian Studies

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Abstract

The main purpose of Transitional Justice is to foster peace, stability, and justice in countries that witnessed internal conflicts, or some sorts of human rights violations.

This article discusses the different issues pertaining to transitional justice. These include the definition of Transitional Justice, the approach taken and guidelines set by the United Nations (UN), the concept, Purposes and Impact of Transitional Justice, and, methods and mechanisms of Transitional Justice.

We will dedicate the major part to the Transitional Justice in Sudan. Sudan has been marked by conflicts and instability for decades. Since Omer Al Basheer was ousted from power in 2019, the country has been progressing through a transition to democracy. This process also entails tackling Sudan’s past, because, without justice there will be little trust in, and support for any new government. We will discuss the different concerns regarding the special situation and particular needs of transitional justice in Sudan at this stage, the problems facing transitional justice in Sudan and how they can be resolved.

Introduction:

During the last decades of the twentieth century, many countries of the world have overthrown authoritarian regimes and military dictatorships, with the purpose of establishing a new democratic order.[1]

Countries may also witness some disturbances and internal conflicts, to the extent that they will need a process to be followed to restore order and national unity after the conflict ceases.

The transition has proved to be a complex process during which the successor regime has to deal with the legacy of the past, where atrocities and mass human rights violations have deeply divided the country’s unity and social order.

Transitional justice is regarded as a major role player in the process of building a civil state governed by the rule of law, in which all citizens are equal, and all are enjoying peace and security. It is also considered

  as an essential tool for maintaining peace and order, especially in countries and communities that witnessed some sort of violence and repression.

The purpose is to end the atrocities committed by a former regime, in a just manner and to do justice to different types of grievances.

 This article will discuss the definition and background of transitional justice. It handles the main problems of the theory and application of Transitional Justice. The main problem is the application of the most appropriate methods of Transitional Justice that fit the circumstances of a particular country. We will set certain parameters in order to judge the efficiency of the transitional justice processes. There will be a consideration for the methods and mechanisms of transitional justice, how they operate in reality, and to what extent they can foster peace and stability.

Transitional justice in Sudan is discussed with focus on the best methods and mechanisms that can be employed in the country. The new Bill of the Transitional Justice Commission is critically viewed, together with the problems facing the implementation of Transitional Justice in Sudan. The article ends up with a number of recommendations that enhance the application of Transitional Justice in Sudan.

1.0 What is transitional justice?

The term “Transitional Justice” describes a number of processes and mechanisms concerned with the establishment of peace and justice in the aftermath of conflicts and large-scale human rights violations. Its main purpose is to end the atrocities committed by a former regime, in a just manner and to do justice to different types of grievances. It also paves the way for a decent civil order.

Transitional justice refers to the ways in which countries emerging from periods of conflict and repression, can address large scale or systematic human rights violations. These violations are normally seen to be of a large-scale, serious and diverse nature, that the normal justice system will not be able to provide the desired solutions.

The UN defines traditional justice as “the full range of processes and mechanisms associated with the society’s attempts to come to terms with a legacy of large scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”. [2]

Transitional justice is deeply rooted in accountability and justice for victims. It recognizes their rights as human beings to redress and to see those who caused their misery brought to justice. To ignore these massive sufferings is to destroy the very foundations of decent values upon which a civilized society can be built.

Transitional justice asks the most difficult question in law and politics by putting the victims and their dignity first. It ensures that the way is paved for a society in which everyone will feel safe and respected. This is the main condition for having a prosperous society, in which all individuals enjoy the same rights and dignity.

It should be noted that transitional justice is an attempt to reconcile different rights and interests. The most important of these, is the right of victims to be reparated, and their sufferings to be recognized and dealt with in a way that does not allow impunity. This right is carefully weighed against the public right to proceed with building a civil and democratic state. The two interests should not be at odds. They can be reconciled by employing different methods and ways to bring justice and to carry on building the civil state at the same time. This is the essence of Transitional Justice, and how it operates to bring justice and prosperity at the same time.

Systematic abuses and mass atrocities have a negative effect on the social fabric. In these types of countries, political and legal institutions like the judiciary, the police and the prosecution services may be weak and politicized.

                      2.0 The United Nations (UN) Approach to Transitional Justice

The United Nations Secretary General issued the guidelines on the UN approach to transitional justice.[3] It outlines key components of Transitional Justice processes and mechanisms. The guidelines state that, as a definition, transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large – scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. Transitional Justice Processes and mechanisms are a critical component of the United Nations framework for strengthening the rule of law. The UN approach is to view transitional justice as a mean to deal with a multitude of challenges. In addition to the quest for justice to victims of violence, the UN to embrace institutional restoration regards transitional justice. Experience of the UN has shown that, promoting reconciliation and consolidating peace in the long term, necessitates the establishment or reestablishment of an effective governing administrative and justice system founded on respect for the rule of law and the protection of human rights.

Transitional justice consists of both judicial and non-judicial processes and mechanisms. They include prosecution, truth finding committees, reparation programs, institutional reforms, or a combination therefore depending on the particular needs of a state.

2.1 UN Main Instructions and

Guidelines:

The UN has an emerging experience in developing the rule of law and facing the different challenges of Transitional Justice, especially posed by states emerging from conflicts or repressive rule. This UN experience has resulted in developing some standards and best practices, which help states in designing a comprehensive system of Transitional Justice. The main guidelines of the UN are:

  1. Transitional Justice processes and mechanisms should comply with international norms and standards:

The UN Charter is the main reference for such compliance. This is supplemented by the four main branches of modern international legal system, namely, international human rights law, international humanitarian law, international criminal law, and international refugee law. The focus should be on the right to justice[4], the right to truth,[5] the right to reparation[6] and the guarantees of non-recurrence of violations.

To comply with these international legal obligations, states should undertake investigations and prosecutions of gross violations of human beings and serious violations of International humanitarian law, including sexual violence. This is in addition to the rights of victims to reparation, right of victims and societies to know the truth about the violations and guarantee their non-recurrence.

  1. To be mindful of the political context when designing and implementing traditional justice processes and mechanisms:

The processes and mechanisms designed should be compatible with the political structure of the state. The potential implications of Transitional Justice mechanisms must be well understood. In this regard, the UN supports justice, accountability, and reconciliation at all times. Peace and justice shall go side by side and they are not at odds. If the local conditions do not encourage or limit the effectiveness of Transitional Justice measures, the UN will help in building effective mechanisms and processes. It should be noted that, the UN could not endorse provisions in peace agreements that preclude accountability for genocide, war crimes, crimes against humanity, and gross violations of human rights.[7]

  1. UN assistance for transitional justice is based on the unique requirements of the state:

Each state needs a customized set of processes and mechanisms. No single formula that fits all states, and no importation of foreign experience. In order to assess the needs of a particular state there will be a careful consideration to factors such as, the root causes of the underlying conflicts, the identification of vulnerable groups such as the minorities, women, and children, and the condition of the legal and security sectors. The assessment is to be carried by national actors. The international assistance is confined to capacity building.

  1. There should be a special support for women’s and children’s rights:

Transitional Justice Mechanisms should pay special attention to abuses committed against groups most affected by the conflict. These mainly include women and children. Violence against women especially rape and other sexual and violence offences should be considered as a special category, in terms of the process needed and the treatment of victims. Women should also effectively participate in the process, and their perspectives should be adequately addressed.

Children’s rights must be adequately addressed, offences against children must be promptly investigated and prosecuted; proper redress must be provided. Transitional justice should also be concerned with strengthening the institutions that protect children’s rights. All measures should be taken to avoid further similar violations against children in the future.

  1. Victims should have a central role in the design and implementation of Transitional Justice mechanisms:

 The centrality of the role of the victims is very essential. The UN insists on the inclusion of victims from the initial stages of Transitional Justice.

  1. An integrated approach should be followed:

Different measures including judicial and non-judicial processes should be employed. These include prosecution, truth finding, reparation programs, and institutional reforms.  The state can employ all of these or a combination of any of them. The UN undertakes extensive consultation with local stakeholders to help in the appropriate preparations for the process and mechanisms. The support will include jurisdiction, evidence collection, victims and witnesses protection to ensure the effectiveness of the employed mechanisms.

  1. Transitional justice should consider the root causes of the conflict, and address violations of all types of rights:

Violations of social, economic and cultural rights are central causes of many disputes and repression. The causes of these types of violations should be carefully considered. These violations can be the cause of the conflict, or the result of it. Peace can only prevail and be sustained, if issues such as systematic discrimination, unequal distribution of wealth and services are addressed by trusted public institutions.

  1. The need for an effective coordination :

There is an integration between the different UN organs in the work of the rule of law and transitional justice.[8] These efforts need to be also coordinated with the efforts of national authorities and institutions. There also a need for coordination between the UN and non-governmental organizations, donor aid and agencies, and other private foundations. The cooperation can happen through information sharing and cooperation in the field.

                     3.0 Concept, Purposes and Impact of Transitional Justice

The impacts of violent conflicts on a state are far reaching. They can be visible such as killed and injured civilians, destroyed bridges, and damaged or inadequate health care and education facilities. They can also be invisible or intangible such as the collapse of state institutions, mistrust in government and the disruption of social cohesion. It is broadly agreed that, if mass violence and human rights violations if left unaddressed, can fuel future conflicts.

The main purpose of Transitional Justice is to address the pain and destruction that result from mass violence and human rights violations. In order to attain this purpose, it applies different methods depending on the context and nature of the locality and of the violations.

The notion of Transitional Justice emerged during the wave of democracy in Latin America in the 1980s and in Eastern Europe after the fall of the Soviet Union in the 1990s. It focused on addressing dictatorial regimes and the transition of societies to democracies. Since then, transitional justice has evolved from being a human rights instrument of democracy, to an essential aspect of post-conflict transitions and peace building interventions.

Transitional justice processes are inherently political. They often involve contentious decisions that actions based on power, interests and prudence. Support for such processes cannot be regarded as purely technical decision, but should also be considered as political as it has the potential to produce both positive and negative impacts. Decisions, for example, on whom to prosecute, (high medium or low ranking officials; perpetrators of a particular ethnic group; solely domestic or also intellectual actors) are political and most of the times they are not received by the different societies and groups as neutral. As for truth commissions the narratives that emerge involve a political determination of what is included and what is not included.

Transitional justice should not be expected to solve complex conflicts, but it provides tools that could help alleviate conflict. It prompts and facilitates the pursuit of justice in various forms, and in exceptional circumstances constrained by politics and resources.

The quest for just peace and human dignity has been the aims of people’s struggles throughout the world. In Africa, for example, this has underpinned the liberation movements in their fight against colonial rule. The Charter of the Organization of African Unity (OAU), predecessor of the AU, states, “Freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples”.[9] In order to translate this determination into a dynamic force in the cause of human progress, conditions for peace and security must be established and maintained.

Despite liberation from colonial rule, many African countries fell into other problems. They descended into either one party dictatorships, military rule, and/or internecine violence, civil wars, military coups and armed insurgencies.

The causes of these conflicts could often be traced back to the structural violence of the colonial periods which continued thereafter through bad governance and the interference of external powers. These took the form of social, economic and political marginalization and inequalities. Failure to reach a consensus on the peaceful rotation of power and government had led to dictatorships, military coups and ethnic and political polarization. The upsurge in civil wars and other violent conflicts within states caused major destruction and lives loss and resulted in weakened states. These wars “unleashed the cycles of violent confrontation and revenge that legitimated armed mobilization as the means to redress grievances” [10] More than half of the member States of the AU have at some point in the post-independence period experienced conflicts or are still actively experiencing conflicts or acts of repression.[11]

In some countries, there were conflicts over the elections, which resulted into widespread violence by various factions or political parties.[12] Lack of democracy and economic deprivation have also resulted in political instability, promoting widespread public protests or popular uprisings. A major feature of these conflicts is abuses of human rights and violations of International humanitarian law at a large scale. This resulted in severe effects on the social fabric of societies.

Apart from the need to put an end to the violations, there is an important requirement to eliminate the conditions that made the violations possible. This will help in fostering justice and respect of human rights on the long run.

The major challenges faced by countries transitioning from dictatorships to democracies, such as Tunisia in 2011, Burkina Faso in 2014, and Sudan in 2019 is how to account for the events of the past, rebuild national cohesion and achieve inclusive democratic transformation.

The experience of Transitional Justice shows a wide range of judicial and non-judicial options available to facilitate the transition from conflict and violence to peace and justice. Many of these methods are innovations in policies and practices. These methods include reconciliation, reintegration of fighting forces, reconstruction programs, accountability measures and investigation commissions.

Summarizing what we have said, the main purposes of Transitional Justice are 1.To end the ongoing violence and to provide remedial measures to victims. 2. To undergo legislative and institutional reforms in order to better address issues such as inequality and socioeconomic deprivation. 3. To establish a rule based political system able and willing to enforce the legislative and institutional measures.

3.1 Impact of Transitional Justice:

There is a plenty of research underway on the impact of traditional justice. However, many claims have been made about the positive impacts transitional justice can have on societies recovering from violent conflicts. These benefits include promoting reconciliation and psychological healing, respect of human rights and the rule of law, and helping establish the conditions for democratic and peaceful government. Those skeptical argue that many transitional justice measures can undermine negotiated settlements and lead to divisions.

Surveys have shown that a combination of different methods of Transitional Justice has results that are more effective in a particular situation. Trials, for example, can provide accountability; amnesties can provide stability and advances democracy and respect of human rights.

Accountability is one of the most essential aspects of transitional justice. If no accountability measures are taken, the result will be impunity, which is not tolerated by the international community.  The international criminal justice system organized itself in a way that ensures the prosecution of grave violations. A clear example is the International Criminal Court (ICC). The ICC was established to ensure prosecution of major crimes that involve severe human rights violations. These include war crimes, crimes against humanity and genocide. The jurisdiction of the ICC is complementary; it can be triggered when the state judicial system is unable or unwilling to prosecute the said crimes. As we said, this is a major step towards acting against impunity when severe violations of human rights are at stake.

Truth commissions can also facilitate accountability by revealing systematic patterns of abuse, and provide guidance for reform to improve human rights protections.

Truth commissions, to be effective, need to be applied in addition to other methods, e.g. prosecution. Truth commissions are also beneficial in the reformation of the justice system as a response to what has been said by witnesses and pressure groups. This is in addition to the impact on human rights. In short, truth commissions are very important means of transitional justice; they uncover facts about the specific violations in addition to providing information that may be used in making different reforms. However, the final effect will depend on the degree of responsiveness of the witnesses and the interaction between the commission and other stakeholders.[13]

Museums and places set as memorials for major crimes and human right violations have a significant impact. This is particularly the case with young people. The effect is to change the ideas and impression about certain events, in addition to raising awareness and increasing emotional understanding of the human consequences of atrocities.

                 4.0 Methods and Mechanisms of Transitional Justice

One of the main features of Transitional Justice mechanisms is that they are adopted on a temporary basis; they should be applied and achieve their purpose within a specified period.

There are different methods, which states can employ in their efforts to achieve transitional justice. States have to regard the specific context of the conflict and which transitional justice methods can best fit in. The main methods of Transitional Justice include prosecutions and trials, truth commissions, reparations, traditional justice, vetting and institutional reforms.

A very important method of Transitional Justice is to assess the integrity of individuals to determine suitability for public employment and to exclude those responsible for serious human rights violations.

It is usually more effective to apply a combination of different mechanisms. This allows a more comprehensive approach to evolve over time, which can satisfy different dimensions. The main methods and mechanisms are discussed as follows:

4.1 Prosecutions and Trials:

Both prosecutions and trials can be undertaken locally in the state itself, if the scene is set in a way that can achieve justice to the victims and to the accused persons. Prosecution and trial of severe human rights violations require an independent and well-qualified justice system, including the police, the public prosecution and the judiciary. State justice system can seek assistance from the international community if it cannot guarantee the required degrees of independence and efficiency. In this regard, investigations can be undertaken by the appropriate international body, such as the Prosecutor General of the ICC, according to the ICC Statute. In addition, the accused can be handed over or surrendered to the ICC to decide on their criminal liability and the appropriate punishment if found guilty.

When the accused are surrounded to the ICC, this is usually done pursuant to a warranty of arrest from the court. In such a case, the trial will be conducted in the Hague where the ICC is located. All the judges will be of nationalities other than that of the accused.

It is also possible to establish a hybrid trial; the court might be constituted from national and foreign judges and the trial takes place in the country where the violations took place. The hybrid courts allow for international expertise and contribute to capacity – building of national legal systems. The international community will avail the support necessary to enable the hybrid court to act efficiently, including the required logistics and facilities.

National courts also can engage in the prosecution of International crimes through special courts established for the purpose, for example the War Crimes Chamber in the State Court of Bosnia and Herzegovina (BiH).

The effectiveness of both mixed and national prosecutions depends significantly on the national justice system, which may be weak and defective, particularly in fragile and conflict – affected states. There is a tendency to have national trials designed and staffed by international actors in order to address this capacity gap. This can, however, lead to frictions with local actors. In BiH, for example, the local judiciary felt that their expertise was neglected.

 The importance and positive impact of prosecutions and trials in transitional justice is that they are a safeguard against impunity. They serve the purpose of retribution, in addition to deterrence. They bring relief and recognition to the victims and their families, and prevent similar abuses and violations in the future. The general trend in international law now is that impunity cannot be tolerated for whatever reasons. This is especially true in serious crimes involving severe violations of human rights. The well-established rule in this regard is that, the circle of accusation will include the leaders and commanders, in addition to those who directly executed the criminal acts. The leaders and commanders are those who have the authority to give orders, control the execution on the ground, or to prevent the abuses and violations. To be held responsible, the commander, whether military or civilian, must be superior hierarchically to those who have committed the crimes in the sense that there must have existed between them a hierarchical relationship within a common chain of authority or command. Superior responsibility could apply in theory to any person who is able to exercise “effective control” over one or more people. On the other hand, in these severe violations it is not an acceptable defense for the person who executed the act to claim that he was obeying orders. In addition, the leaders and commanders cannot argue that they were not aware of the scope of violations, or that their orders had been exceeded.[14] The special circumstances of each case will, however, have an impact on the sentence of the court. All the details will be considered in reaching the sentence and there might be acquittals, but the initial circle of accusation will be wide enough to leave no possibility for impunity.

The Charter and the judgment of the Nuremberg Tribunal established the fundamental principles of individual responsibility for crimes under international law, which provided the cornerstone of the legal foundation for all subsequent international criminal proceedings.

International courts may take the form of ad hoc, temporary tribunals such as the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda in the 1990s. The ICC was established in 2002 to serve as a permanent international Tribunal. Under Article 17 of the Rome Statute of the ICC, the court can intervene only if the state is ‘unable or unwilling to genuinely carry out the investigation and prosecute the perpetrators’.[15]

International community should aim at strengthening local capacity through proper training to local lawyers, judges, prosecutors, and even advocates. In Rwanda, thousands of lawyers have been trained over the last decade and were able to replace foreign lawyers in genocide trials.

There were shortcomings in the Rwanda trials such as inadequate due process protections, politicization and poor determination conditions. This was due in part to poor resources. In addition to that, people will be unwilling to accept that those suspects should have rights, due to the severity of violations they committed.

It is always better to have a local trial for grave human rights violations. However, some special circumstances may necessitates referring to the international community assistance, when the local judicial system is unable or unwilling to try these cases.

4.2 Truth Commissions and Reconciliation

Criminal prosecutions has certain limitations. They cannot bring justice in concerns arising from large – scale violations. As justice Albie Sachs of the South African Constitutional Court explains “courts are concerned with accountability in a narrow individualized sense, and they leave the social processes and cultural and institutional systems responsible for the violations uninvestigated”. [16]

Truth commissions and reconciliation process offer a platform for victims to get their sufferings recognized. They also give perpetrators the opportunity to acknowledge their wrongs and to seek forgiveness.

Truth commissions are official non-judicial commissions of limited duration. Their purpose is to investigate human rights abuses, especially those perpetrated by the military or other government or state institutions. They hear testimonies from victims, witnesses and perpetrators, and officially acknowledged truths.[17] This provides victims with recognition and creates an authoritative record of what happened. In some cases, this includes statements about responsibility and detailed list of perpetrators’ names. This information can be brought forward to assist with prosecution. The hearings may be public or closed. Public hearing have the advantage of being a powerful outreach, providing victims with the chance to speak out and to achieve a sense of personal vindication, while also involving the public.

The South Africa Truth Commission allowed documentation of its hearings by media, a practice which made all the public participate as receivers of the testimony. University students across the country were trained to provide support to victims providing testimony at public hearings.[18]

The key importance of truth commissions is that it will be a comprehensive report that documents human rights violations and war atrocities. The final report should be considered as a national document. They can used as sources for educating the public.[19]

Truth commissions can also provide recommendations aimed at addressing the root causes and outcomes of the conflict. This may take the form of institutional reforms and developing a reparation policy.

Truth commissions achieve diverse purposes. They can be a forum to promote social and national reconciliation, to tell stories of past atrocities, to hear each other’s grievances, and reach common understandings towards reconciliation. In some cases, truth commissions are specifically organized to foster reconciliation.[20] They can also promote conciliation through recommendations in their final reports.[21]This was the case in Peru where the TRC suggested that reform of state institutions could contribute to reconciliation between the government and the citizens.

Truth commissions require genuine support from politicians if they have to succeed. Lack of political will, absence of public input and support and careful planning can undermine the effectiveness of truth commissions. In the case of the Haitian Commission, for example, a lack of political will and public support, along with numerous institutional constraints (including lack of capacity and shortage of funding and time) led to the failure of the commission to contribute effectively in the acknowledgment of the Haiti’s past conflicts and to advance reconciliation in the country. Although the commission collected significant amounts of data on the conflict, it failed to make a lasting impact as the final report was not well publicized and there were no follow up activities.

Truth telling is not limited only to state- based commissions, it can be unofficial and initiated by civil society. Society based truth commissions may have some advantages, namely, they can be more context- driven and creative and can connect more with communities.

4.3 Reparation

Reparation is a form of restorative justice. It is a method by which victims can be provided with compensation, rehabilitation or satisfaction, in a way to redress past wrongs.[22] It is thus a critical mechanism for repairing relations between victims and perpetrators. This is particularly true when perpetrators are held directly responsible for the reparative measures.

The right to reparation is well established in international law. It has its roots in many multilateral treaties, and now accepted as part of customary international law.

In the works of the United Nations (UN), reparation can be done by restitution (returning the victims to their state before the crime was committed), compensation in the form of direct payments of money, providing services such as education or medical care. Reparation also includes non-material, symbolic measures such as disclosure of truth, public apologies or memorials.

Reparations can be judicial, pursuant to courts orders, or non-judicial. It can also be provided individually or collectively, such as building a school or hospital.[23] Reparations can also involve symbolic measures such as public apology or memorials.[24]Symbolic Reparation is particularly effective when the number of victims in need of reparation is excessively high.

Official public apologies have been frequently used in recent years as effective form of symbolic reparation. This takes the form of a formal public acknowledgment of past human rights violations. It consists of recognition of what survivors have suffered and acceptance of all or some responsibility by the apologizing party. In some cases, an apology may be recommended by a truth commission. In other cases may be requested by victims’ groups.

The emphasis on apology should not, however, eliminate the need for other reparative measures such as restitution and health services that could address physical and psychological needs of the victims. In Canada, for example, the apology for Indian Residential Schools was preceded by the initiation of a class action lawsuit. In addition to this, there were compensation and services and a state sponsored report acknowledging the human rights violations.

At least 14 countries in Africa have prescribed reparation initiatives.[25]There are, however, many challenges that face the design and implementation of reparation in these countries. The challenges include how to determine the criteria for identifying the category of people entitled to reparation, the determination of the nature and scope of representation, and the process and the necessary considerations for making such a determination. Another major challenge is ensuring that reparative measures are actually implemented. States may simply disregard their responsibility to provide reparation under peace agreements or truth commission’s findings. In South Africa, reparation was only provided after sustained civil society pressures and court orders, but the battle to receive a broader scope of reparation continues.[26]One of the most successful experiences of reparation awards was in Ghana, where reparation awards were made soon after the submission of the truth commission report.

It should be noted that reparation is mainly concerned with previous violations, its contribution in enhancing the socioeconomic conditions and remedying the damage caused to the infrastructure is minimal. Thus, in addition to reparation there is a need to adopt redistributive measures that include socioeconomic and fiscal policy measures. This will help in redressing past inequalities and achieving future social justice. Despite various limitations, including in implementation, useful experience in this regard includes the proposal in the AU High Level Panel Report on Darfur for social development measures.

4.4 Memorialization

This method refers to a number of processes and forms of collective remembrance. They include memorials, monuments, museums, and other places of memory, where the past can be confronted. It is a known practice that prior sites of atrocities, torture, mass gravesites, and other similar locations have been turned into public memorials. Unlike other transitional mechanisms such as prosecutions and truth commissions, memorialization can involve large numbers of people over long periods. It can be initiated by both governments and communities. The importance of this method is that it has an educational effect, also a reflection and relief for the victims and their families. It creates empathy for victims as fellows in humanity. In addition, it provides information about the brutality of harms inflicted. The sites also help survivors and those who have lost loved ones to reflect and to grieve. Examples include the Vietnam Veterans Memorial in Washington, DC, the hillside Halabja Memorial in Iraq and the 8,000 Graves at the Srebrenica genocide memorial in Bosnia Herzegovina.

It is important to know how to address the narrative of past atrocities for memorialization to be effective. We have to be neutral in addressing the narrative and should not give the impression of supporting any ideology, or that it supports one group over another. These can produce more tensions.

In order to maximize the impact of memorial sites, they require long-term involvement and continuous evaluation. Memorialization produces good impact when taken with other transitional justice mechanisms.

4.5 Institutional and Political Reform

Institutional reform refers to a broad range of initiatives aiming at reforming or creating the political and institutional arrangements necessary for democratic and socioeconomic renewal and transformation. This mainly includes a reformed or new constitution that refines the social contract between citizens and the state. In addition to the reform or creation of the fundamental rules on the organization and exercise of government powers, as well as the necessary legislative reform.[27] There are also the reforms required by the disarmament, demobilization, reintegration and security sector reforms as undertaken by Ethiopia, Liberia and Sierra Leone, to take a few examples.

Other common reforms include vetting and lustration programmers. These are a way to purge public officials responsible for human rights abuses, and ensure that they will no longer serve in a public capacity. In Africa, vetting and/or lustration processes were used in Ghana in 1969, and recently in Tunisia in 2013.[28]Kenya undertook judicial and police vetting processes, with some success.[29] Issues of due process and fairness were raised with respect to vetting and /or lustration as with other processes.

Experience has shown that constitutional and other institutional reforms alone are inadequate.[30] There need to be also a behavioral change in the way politics is conducted and power is exercised in the country. This requires a transformation of institutional attitudes, mindset and practices. Central to this is the active and sustained promotion and enforcement of principles of accountability, legality, transparency, responsiveness and respect for human rights, including non-discrimination and equality in government decision making and in the conduct of the affairs of the state.

4.6Traditional and Indigenous Mechanisms

This method has been popular in several countries.[31] In Africa, it was successfully used in Rwanda, Uganda and other countries. Traditional and Indigenous methods became necessary because of the limitations of retributive justice. Article 29(7) of the AU Charter provides for the reservation and strengthening of positive African cultural values. The local or indigenous dispute settlement mechanisms form part of these cultural values.

The role of Indigenous mechanisms can be more effective in reconciliation, reparation through payment of compensation between different groups and tribes, rehabilitation of the perpetrators, bringing back harmony and re-establishing relationships.[32]

We can raise some criticisms against traditional and indigenous methods of transitional justice. They cannot stand-alone, they have to be supplemented with, or supplement other methods. In addition, they need major modifications when dealing with mass atrocities. There are also questions as to their ability to deal effectively with gender-based violence perpetrated during conflicts. The inclusion of women and youths in these processes is essential to reflect the many dimensions that address the concerns of these sectors in the attainment of justice.

                            5.0 Transitional Justice in Sudan

Sudan is now undergoing a transitional period. This came after the overthrow of the previous regime of Omer Al Basheer by a popular uprising, which started on December 2019. The uprising continued for about 4 months, during which the regime has employed all ways and means to stop the protests. However, the determination and the courage of the people of the Sudan overcomed all the brutality and ruthlessness of the previous regime. The regime was officially overthrown on 11 April 2019; the army leaders assumed power on that day and claimed that they did so in order to prevent a bloodshed, and to fulfil the demand of the people in the change after the previous regime has exhausted all the justifications for its existence.

5.1The main guidelines for transitional justice in Sudan:

It would be beneficial to throw some lights on the main guidelines for follow when designing an effective strategy for transitional justice in Sudan; theses may be summarized as follows:

  1. Transitional justice in Sudan should be viewed as a continuous process of transformation. We should not regard it as a limited process and confine it to only few identified items, but should address a wide multitude of subjects.
  2. There should be a well-designed public outreach. Suitable messages are to be addressed to all relevant groups. This will positively contribute to public support for transitional justice efforts. In the absence of this outreach, there can be a gap between the goals and purposes of transitional justice, and public support.
  3. We have to be mindful to the socioeconomic inequalities and disparities, and the systematic marginalization. It is imperative to discuss developments issues, either within the transitional justice processes and mechanisms, or in parallel with them.
  4. Involving diaspora, refugees and internally displaced persons, and victims of human rights violations is very important. This can contribute to a greater diversity of perspectives, and more comprehensive truth telling. We shall start with internally displaced persons, and if it is difficult to reach the diaspora in different countries, we can focus on the countries of majority such as the US and Canada and the main European countries.
  5. We have to bear in mind the uniqueness of the situation of Sudan. The main army and security forces leaders are on top of the transitional Supreme Council. In addition, many of the supporters of the overthrown regime are still in their positions in different governmental and military institutions. In such a situation, it is imperative to seek the assistance of the international community in a substantial way. The involvement of the international community will be in assisting in building the plan and the structure of transitional justice, the suitable methods and processes, and identifying the cases in which we need to deal with the international criminal justice. These are the key areas of cooperation, but, of course, we will need assistance also in many of the details of the process.
  6. We have to the establish mechanisms that provide a healthy atmosphere to discuss cases of violence against women and children. These types of violations call for a special attention, as many of their details might be overlooked in the standard procedure.

5.2 Classification of human rights violations in Sudan

The previous regime employed the religion to perpetuate its power. Muslim brothers, in collaboration with the military and security forces, mainly dominated the previous government of Sudan. The ideological foundations of the regime led to a large-scale exclusions and other forms of pursuit against political opponents. The exclusions extended to any individual who is not part of their group or ideology, even if they have no political orientation.

This background can provide an idea about the way in which this ideological, totalitarian regime would run the country. The regime did not acknowledge any rights for citizens other than his own supporters. This opened the door for massive human rights violations and other forms of corrupt practices committed by leaders of the regime, who also paved the way for a limited portion of the public to enrich themselves. The regime did this on the account of millions of poor and miserable population who were deprived of the necessities of life, as the country was ripped off wealth by a minority that gave itself every right to do so on political and ideological considerations.

In order to design an effective strategy and adequate mechanisms for transitional justice in Sudan, we have to classify the main violations that took place during the period of the previous regime. These can be as follows:

 5.2.1 Severe human rights violations: Numerous instances of mass killings,

         extra-judicial executions and war against the people in different parts of Sudan,

         took place during the period between 1989 and 2019. This is although we believe that some of the issues, especially the civil wars, have roots that go beyond 1989, and it is important that we address the root causes. A clear example is the massacre of the execution of the 28 military and ex-military officers upon accusation of a coup attempt. A grieve denial of justice took place, as there were mock trials of a short hours, followed by the executions. The whereabouts of the graves was not disclosed to the families until a mass grave was recently discovered by the investigating committee. This crime reflects a ruthless kind of attitude. In term of transitional justice, the appropriate treatment would be to expedite the process of investigations and trial of those found implicated in this incident of grave violation of human rights. Prosecution is the appropriate method, in addition to bringing relief to the families by all suitable ways of reparation including an official apology. Apology should come directly from the perpetrators, but even an apology from the leaders of the armed forces who were not part of the mass killings will partially serve the purpose. In addition to this, memorialization can be achieved by setting the site of the mass grave as a public memorial site for educational purposes where the past can be confronted, and a message sent to the effect that this should not happen again. The public will learn that an unprecedented crime was committed in this place, which shouldn’t be allowed to happen again.

There is a long list of other atrocities and severe human rights violations committed by the previous regimes. There is the incident of mass killing to students at Ailafoon Camp. The killings happened in cold blood, students were shot while they were running away. No prosecutions has taken place so far; Investigations are underway. The investigations had to be expedited, and the accused brought to justice immediately. In this case, we need a similar process as that described for the case of the 28 military and ex-military officers previously discussed.

There are numerous incidents of grievances by individuals for violations of human rights committed by different authorities. These should be given a fast track process within the justice system. Prompt and speedy justice has to be provided to the victims and their families in the appropriate manner. Different types of Transitional Justice mechanisms can also be used here.

The procedure should not fall short of bringing justice to the victims and their families, and to punish the offenders. There should be an able and willing independent justice system to achieve these ends. If this independent justice system is not available yet, a coordination has to be done with the international community and international judicial bodies in order to proceed with the prosecution of these crimes. There should be a strong pressure against impunity. All ways and means need to be used for pressure, especially the efforts of local and foreign non- governmental organizations. This is particularly the case if the perpetrators are ex or current leaders of the government, the armed forces, or ex-government militias.

It should be noted that human rights violations have continued in Sudan even after the overthrow of the previous regime. The sit- in massacre is one example. Different security forces attacked the Thousands who are at the sit in site near the army headquarters. The attack was done with the maximum, unjustified use of force and brutality, although the sit in was conducted in the most peaceful way. What was committed at that day may amount to a crime against humanity, as there was a very wide range of use of force, ranging from direct shootings to burning of tents with people inside them, to throwing people in the Nile after tying their legs to bricks to ensure that the dead bodies will not float on the surface, to raping both men and women, to the infliction of different bodily injuries. The incident resulted in a tragic trauma to the Sudanese society and the international community as a whole.

There is an investigation committee, which has been going on for a while. The committee is investigating a very serious and complicated incident. It might be the most bloody in the recent history of Sudan. The obvious complication in this case is that, current leaders of the army and other security forces might have participated by giving direct orders for committing this massacre. Most of those leaders are loyal to the previous regime.

The best course of action is to finalize the investigations as soon as possible. There are fears that the investigation report may intentionally protect persons who are currently in power. If the accusations would involve high officials in power, or higher military leaders, an international investigation committee should take over. In such a case, the investigations has to be reviewed by the ICC and official accusations to be announced by the ICC. The assistance of international community, especially the ICC, can even be sought at earlier stages. The reason is that, it is extremely difficult to prosecute high-ranking officials and army and security leaders while they are in power. They can do everything to avoid the prosecution, and unfortunately, they will succeed as they are having the upper hand in power right now.

I think it will be for the best interest of the democratic transformation in Sudan to surrender them to the ICC. In addition to the extreme necessity to prosecute them for the serious violations they may be accused of, it is also of high importance that they should leave the political scene if we are keen to make a real and meaningful change towards democracy and the establishment of the state where the rule of law is to prevail. However, this rather critical issue needs to be handled with the utmost care and caution.

    5.2.2 Waging war against the citizens in different regions: Wars erupted in many regions of Sudan during the period of the previous regime. Examples include

  the atrocities in Darfur, Southern Kordofan and Blue Nile regions of the Sudan. Civil wars have been on for long years in the three regions. The main causes being the marginalization in all aspects of life, and the unfair share in power and wealth.

Plans need to be in place to punish the offenders in these long-standing internal conflicts during which serious violations to the international human rights law and the international humanitarian law were committed. The effect of these wars were widespread. The previous regime systematically attacked civilians in the war areas. This constitutes violations to the international obligations of the protection of civilizations during war times.[33]

In addition, the citizens in war areas were denied many of their basic human rights. Large numbers were displaced and have been living in camps for many years, and deprived from the most simple kinds of services necessary for their living. This also signifies a breach of the international obligations under Human Rights Conventions.[34]

It is clear that we will need some sort of cooperation with and assistance from the international community in crimes committed during wars waged by the regime in these areas.

Warrants of arrest were issued by the International Criminal Court (ICC) against Omer Al Basheer and others. This happened in 2009 after the Darfur case was discussed by the Securing Council and transferred to the International Criminal Court (ICC). Our point of view is to consider the cooperation with the ICC in combating impunity and bringing justice to the victims and their familiesUnless we are convinced that a substantial reformation of the justice system has been achieved, Omer Al Basheer and other suspects have to be surrendered to the ICC.

5.3.1 Suggested methods for Transitional justice in Sudan

The process of Transitional Justice in Sudan is a complex task.[35] In this process, we will need to apply different methods and mechanisms of Transitional Justice. These include prosecution, truth and reconciliation commissions, reparation, memorialization, traditional mechanisms, and memorialization.

5.3.1.1 Prosecution: First, it is essential that all those accused of war crimes, crimes against humanity and the crime of genocide should be prosecuted for these crimes. The quest for justice does not allow any possibility for amnesty or protection to the perpetrators. These are considered serious crimes; they are punishable under the ICC Charter. International community does not allow impunity for these crimes.

The situation of Darfur was submitted to the ICC by the UN Security Council by resolution 1593(2005).As we mentioned while discussing prosecution under transitional justice, many options are available for the prosecution of persons demanded by the ICC. There should be full cooperation with the ICC regarding persons subject to arrest warrants. An acceptable solution can be reached by the concerned parties. Having regard to the current situation in Sudan, we think that the justice system is not yet able to prosecute those accused of serious crimes and demanded by the ICC. The obvious reasons are that, the justice system is still considerably dominated by those who have loyalty to the previous regime. The restructuring of the justice system, which should have happened long ago, was not accomplished yet. In addition, judges in Sudan do not possess the required capabilities to deal with crimes of International character, namely crimes of genocide, war crimes, and crimes against humanity.

For these reasons, it is evident that the judicial system in Sudan is still unable and/or unwilling to try these cases. Therefore, we find it necessary to surrender Omer Al Basheer and others to the ICC. However, they might be required for prosecution for other accusations, so a decision need to be made as to which cases priority should be given.

Besides cooperation with the ICC, we need to establish special local courts that will try cases of genocide, crimes against humanity, war crimes and serious violations of human rights and international humanitarian law.  An example is the Special Tribunal for Darfur. The establishment of this court has been agreed in Darfur Peace Agreement, 2020. This court is agreed to serve for 10 years, shall be composed of national judges appointed by the President of the Supreme Court. An independent prosecutor is to be designated for the court by the Attorney General of the Sudan.

Time factor is very essential; we hope that the special will be established as soon as possible. Delay in the establishment of the court will not be in favor of justice for the victims and preserving the evidence of the committed crimes. It is hoped that the special attention and the training will render the special courts more capable than the general courts.

5.3.1.2 Truth and Reconciliation Commissions: In addition to prosecution, there shall be another track for reconciliation in the appropriate cases. A truth and reconciliation commission (TRC) has to be established in each of the previous conflict regions. The main functions of the TRC is to define and evaluate the root causes of the conflicts, investigate the crimes and human rights violations, and ascertain responsibility and motives. Additional functions of the TRC are to allow victims and perpetrators the chance to exchange their experiences, in order to facilitate the healing process, reconciliation and prevent future atrocities.

The TRC shall collect evidence and accounts from victims, witnesses, local communities, beneficiary groups, and persons directly or indirectly involved in the events. It shall also hold hearings, collect evidence and testimonies, actively participate in the reconciliation process, and adopt special measures to protect child and women witnesses and victims.

The truth and reconciliation commissions offer a valuable chance to classify the types of violations and to recommend the suitable solution. It shall employ all available tools and resources to reach the truth regarding all the violations, and to deal with them in the appropriate manner. They can, according to the outcome of investigation, recommend other measures such as institutional reforms. The process of and the findings of the truth and reconciliation commissions should be made available to the public through different means.

5.3.1.3 Traditional Mechanisms:

Traditional justice mechanisms can operate to punish individuals who have committed crimes in conflict within a community or between communities. Traditional justice has jurisdiction for crimes linked to conflicts which do not fall under the jurisdiction of the ICC, the special Tribunal, the national judicial system, or the truth and reconciliation commission. This method has been successful in many African countries such as Rwanda and Uganda. Article 29(7) of the AU Charter encourages the reservation and strengthening of African positive values. Traditional and Indigenous dispute settlement mechanisms are regarded as integral part of African positive values.

Traditional justice mechanisms shall impose various sanctions, appropriate and proportionate to the crimes committed. The purpose is to strengthen reconciliation, property restitution and compensation of victims. The accused has the right to negotiate for the commutation of a sentence in exchange of a written or verbal public apology. Preference is given to community service sentences, especially for those who make public apologies. Enforcement of these services shall be monitored by an elected committee. Traditional justice mechanisms exercise their traditional jurisdiction through customary laws and traditional procedural laws. Local, regional, and community leaders shall oversee the missions of traditional justice mechanisms. There shall be consultation with local and regional leaders and civil authorities to determine ways to formalize traditional justice mechanisms within the national justice system.

5.3.1.4 Reparation: This is very important to recover from the grievances of the past and have a healthy new start. Reparation takes different forms; it is not confined to financial payments. It can take the form of promoting the services in the fields of health, education and others. Reparation can be advised by the courts, the truth and reconciliation commission, or traditional justice mechanisms. It can be community based, where the benefits are enjoyed by the whole community, or individual based where the benefits are enjoyed by individuals.

Reparation also includes the return of confiscated property belonging to organizations and individuals that were confiscated because of the war, after a proper proof of ownership is provided.

3.5.1.5 Memorialization: There should be places of remembrance to honor the victims of the conflicts in the different regions. Commemoration is intended to tell those who have suffered from the conflict that this traumatic experience is over, as well as to educate and sensitize those who have not suffered from the conflict.

5.3.1.6 Institutional Reform: This is of high necessity, as it paves the way for a real change. State functions, draft policies, issue laws and enforce them through the different institutions. For this reason, we need to ensure that all the civil service is working towards achieving the goals of a democratic state. More importantly, the legal institutions such as the judiciary and public prosecution have to be restructured in a way that enables them to safeguard the human rights of all the citizens and to stay impartial in their functions. Of equal necessity is the army and other security forces. All militias and militias- like armed forces should be dismantled in favor of the state army.

5.4 Transitional Justice Commission (draft Bill):

This Bill was drafted by the Ministry of Justice and forwarded for approval by the Council of Ministers. However, no further steps were taken towards the approval of the Bill, and submission to the joint meeting of the Supreme Transitional Council and Council of Ministers for final issue as law.

In the explanatory note of the Bill, it is mentioned that, the Bill was drafted as per the requirements of the Constitutional Document that governs the transitional period.    

 5.4.1 Definition of Transitional Justice under the Sudanese bill: Transitional Justice, is defined by the Bill as follows: “a comprehensive process of approved ways and methods to comprehend and resolve past human rights violations, by discovering the facts, and accountability for the perpetrators, and reparation for the victims, in a way that achieves national reconciliation, and document and save collective memorialization, and ensures non recurrence of the violations, and paves the way for a transition to a democratic system that protects human rights”.

It seems, from the definition, that transitional justice, according to the Bill, refers to a multitude of ways and methods. These include, investigation committees, trials, reparation, and memorialization.

 It seems that the intention is to form investigation committees to criminally investigate on the crimes and human rights violations. The mandate and authority of these committees will be spelled out in the decisions establishing them. These are different from the truth and reconciliation commissions.

Trials mainly refers to the prosecution and trial of perpetrators. There should be an appropriate court system capable and willing to undertake this function. As stated before, we need a sort of special courts to try serious violations such as genocide, war crimes and crimes against humanity. The Sudanese justice system in general, and the judicial system in particular, will need the cooperation of the international community because, it does not have enough past experience in trying these types of cases. In addition, the justice system is not yet reformed in a way that renders it willing to try these cases in a fair and reliable manner, as it is still to a large extent, dominated by supporters of the previous regime.

 Reparation consists of compensating the victims for their losses, whether physical, mental, or psychological suffering. In addition to compensation for economic losses or Deprivation of basic rights.

 The definition of Transitional Justice in the Sudanese Bill refers to collection and saving of collective memorialization as a purpose of Transitional Justice. This is done for the purpose of documentation, which will serve educational goals for the public, in addition to bringing relief to the victims and their families. Memorialization also helps in deterring similar violations in the future.

5.4.2 Functions of the transitional justice Commission: The Transitional Justice Commission Bill, 2020, establishes a commission for transitional justice[36]. The main functions of the Commission are:

-Preparation of a comprehensive national strategy on transitional justice.

-Undertaking a survey to establish a geographical map that helps in the establishment of a national strategy for transitional justice and the determination of the real stakeholders.

-Establishment of broad discussions with all the real stakeholders throughout the country including victims, their families, marginalized sectors, displaced and refugees, in order to have their input on the strategy.

-Preparation for the national conference on Transitional Justice to agree on transitional justice program and methodology.

-Establishing the tools and framework of Transitional Justice.

-Preparation of a national transitional justice program according to the outcomes of the national conference on transitional justice. The national program of Transitional Justice includes: the conceptual framework of Transitional Justice that aims to understand and cure the past violations committed on the Sudanese people since 30 June 1989. In addition to the determination of the suitable ways and means to discover the truth of the violations, accountability of the responsible officials, reparation and rehabilitation of the victims to achieve national unity, documentation of the events to ensure their non-occurrence and to assist in laying the foundations for the transition to a democratic system.

Article 7 goes on to specify, in general terms, the different ways and mechanisms that constitute transitional justice. The Commission shall supervise the establishment of the transitional justice institutions and mechanisms, and coordinate the efforts of all the mechanisms so that they can work in harmony on a unified national path.

Functions of the Commission also include, training of the Commission employees, collection and classification of data, cooperation with the human rights commission, and other UN and national agencies. This is in addition to the administrative functions of the Commission, to be able to manage its own human resources and financial affairs.

5.4.3 The shortcomings of the Bill: The general observation is that, it is clear when the Bill was drafted, people were not sure about how they will proceed with transitional justice. For this reason, the Bill was drafted in very general terms. It is meant that, when the Commission is established it will take care of all the details, including what we want to achieve from transitional justice and how we can achieve it.

The main shortcomings of the Bill are:

  1. The Bill is drafted by legal technical experts, in isolation of other sectors of specializations, which are needed. There have been some efforts by different civil society organizations which resulted in a literature that may be helpful in drafting the Bill, but these efforts weren’t considered.
  2. The real stakeholders were not consulted in drafting the Bill.
  3. The functions of the Commission, according to the Bill, are only preparatory in nature. They are confined in suggesting the transitional justice institutions, establishing a dialogue on transitional justice, and how that dialogue shall be conducted.
  4. The Commission does not possess any executive powers. It is not provided with any enforcement means to assist in its functions.

In this regard, we think that the Tunisian experience is better. The Tunisian Transitional Justice law, 2013 established the “Commission of Truth and Dignity”. This body has full authority to deal directly with transitional justice issues. It has wide enforcement powers in dealing with the issues, and with the justice institutions. The law obliges all government agencies including the justice department, the prosecution and the judiciary to provide all the required assistance to the Commission. The Commission has the authority to hold hearings with the victims, and to ask for documents from any national or international body. The members of the Commission are elected in a democratic way, and membership covers a wide range of the social sectors connected with the transitional justice issue.

When we compare this with the Sudanese Bill, we find conceptual differences. In the Sudanese Bill, there are no details about the specializations of the members, to ensure that they are qualified for the functions. The Tunisian law is very clear and specific on this matter. The Tunisian commission is democratically elected, whereas the Sudanese commission will be appointed. The Sudanese commission shall perform preparatory functions on how transitional justice is approached in Sudan, whereas the Tunisian commission is authorized to proceed right away with the implementation of Transitional Justice. The Sudanese commission will be without any powers of enforcement, it is more like an administrative body that performs routine office work. The Tunisian commission, on the other hand, possesses very specific enforcement powers. There are specific provisions on the wide powers and enforceability that the Commission is entitled to. An example is the authority to order documents and information from judicial and administrative bodies, review or cases pending before the judiciary and review of decisions issued, and receiving of complaints for a period of one year renewable for a period of six months.

6.0 Conclusion

Transitional Justice has played a pivotal role in the stability of many countries in different parts of the world. The main advantage of Transitional Justice is that it applies a multitude of methods and mechanisms which can operate in harmony. While prosecution, which is retributive justice, is essential to avoid impunity, we also need restorative justice in the form of reconciliation. No single method of Transitional Justice will be sufficient; we usually need a hybrid of methods and mechanisms. This is because the post-conflict reality is composed of many interacting factors, which need to be handled and given the same attention; no single factor should be neglected.

Since independence in 1956, Sudan has experienced chronic instability, mostly due to the same underlying causes that, to date, have yet to be addressed. Calls for an inclusive government and fair power and wealth sharing system that takes account of the country’s ethnic and cultural diversity without discrimination, have remained unanswered for decades.

More efforts need to be exerted within a specific period, for transitional justice in Sudan to achieve success. A central body for transitional justice must be established immediately, with wide powers and enforcement abilities. The current Bill of the Transitional Justice Commission, 2020, does not fulfill these requirements; we need a wide consultation with the real stakeholders and experts to make the necessary changes to the Bill. However, this needs to be in a prompt and focused way to avoid more delays.

7.0 Recommendations:

After reviewing the international practices of Transitional Justice and its particular application to Sudan, we have the following recommendations:

1: Civil society and government should work together to raise awareness of Transitional Justice through media, specialized publications and all other suitable means.

2: We need detailed training on transitional justice with the participation and supervision of International bodies such as the ICTJ.

3: A comprehensive strategy on how to affect and support transitional justice in Sudan is required.

4: A multitude of Transitional Justice methods and mechanisms are needed in Sudan. This is because the nature of the human rights violations and atrocities are diverse, as well as the political and social context and localities in which they have been committed.

5: Transitional justice should focus on the far reaching effects of most of the committed crimes; they entail victimization of the whole community.

6: Transitional justice should aim at addressing all Sudan’s complex history of violence starting from independence in 1956.

7: Institutional reforms should be given considerable attention in the transitional justice process. This is a vital step to restore trust in state institutions. It is worth mentioning that reforms to the justice institutions should precede transitional justice, as these institutions should play a major role in the process of Transitional Justice.

8: It is essential that Sudanese youth, women, and civil society organizations constitute an integral part and central role players in transitional justice.

9: The establishment of the transitional justice Commission should be expedited. This should be preceded with a wide consultation with all stakeholders so that the Commission once established shall be capable of directly addressing transitional justice issues rather than being involved in preparatory activities.

10: The Transitional Justice Commission Bill, 2020, needs a substantial review. The participation and input of the real stakeholders and experts of relevant expertise is highly required.

11: The approach of the Sudanese law on transitional justice should be similar to the Tunisian Transitional Justice law, 2013. The Sudanese Transitional Justice Commission should be granted wide enforceability powers to effectively direct the process of Transitional Justice. The current Bill establishes the Commission as a mere preparatory and administrative body.

12: Support of the international community to Sudan transitional justice is highly required. We need this support in such areas as judicial reform. Achieving judicial reform during the transitional period takes time, especially when the system has been in severe disrepair and requires plenty of resources that the new regime may not possess.

13: Prosecution is important, it is a guarantee against acts of private revenge, and discourages future violations.

14: We need to reach a compromise between the ethical imperatives and the international legal norms that urge for retribution on the one hand and the complex political reality on the other so that justice is pursued in tandem with the overarching purpose of national reconciliation. Maintaining the delicate balance between justice and reconciliation is the only visible option for a fragile democracy emerging out of violence and long history of human rights violations.

References:

  1. African Union Panel of Wise (2013) “Peace Justice and Reconciliation in Africa: Opportunities and challenges in the Fight against Impunity”.
  2. Convention against Torture and other cruel, inhuman, and Degrading Treatment or Punishments.
  3. Gonzalez, & Varney, H. (Eds) (2013), Truth Seeking Elements of Creating an Effective Truth Commission, Brasilia: Amnesty Commission of the Ministry of Justice of Brazil, New York: ICTJ.
  4. Https://www.ohchr.org/EN/PublicationsResources/Pages/Specialissues.aspx.
  5. Https://www.au.int
  6. Https://www.ohchr.org/documents.
  7. Https://www.ictj.org/sites.
  8. Https://www.khulumani.net/khulumani.
  9. Huys, L & Salter, M (2008) Transitional Justice and reconciliation after Violent Conflicts: Learning from the African Experience, Sweden: International IDEA.
  10. International Convention on Civil and Political Rights.
  11. International Convention for the protection of all Persons from Enforced Disappearance.
  12. Introduction Covenant on Civil and political Rights.
  13. Kasapas, George, Introduction to the Concept of Transitional Justice: Western Balkans and EU Conditionality, UNISCI Discussion Papers, No 18 (October 2009).
  14. Organization of African Unity Charter 1993.
  15. Sachs, A (2011) The Strange Alchemy of life and Law, Oxford University press.
  16. Statute of the International criminal Court, 1998.
  17. Sudanese Transitional Justice Commission Bill, 2020.
  18. The report of the Argentina National Commission on the Disappeared.
  19. Universal Declaration of Human Rights, 1948.
  20. www.un.org.

[1] Kasapas, George, Introduction to the Concept of Transitional Justice: Western Balkans and EU Conditionality, UNISCI Discussion Papers, No18 (October 2009).

[2] UN Security Council 2004.

[3] United Nations, Guidance Note of the Secretary General, United Nations Approach to Transitional Justice, 2010,www.un.org

[4] See, e.g., Introduction Covenant on Civil and Political Rights, article 2, Convention against Torture and Other Cruel, I human, Degrading Treatment or Punishment, articles 4, 5, 7 and 11.

[5] See,e.g., International Convention on Civil and Political Rights, article 2, International Convention for the Protection of All Persons from Enforced Disappearance, article 24.

[6] See, e.g., Universal Declaration of Human Rights, article 8

[7] Gross violations of human rights include torture, and similar cruel, inhuman or degrading treatment, extra judicial, summary or arbitrary executions, slavery, enforced disappearances, and rape and other forms of sexual violence.

[8] http://www.ohchr.org/EN/PublicationsResources/Pages/SpecialIssues. aspx

[9] OAU Charter, “preamble” 25 May 1993 available at http://www.au.int/en/sites/default /files /treaties /7759-sl-oau_charter_1963_o.gdf

[10] African Union Panel of the Wise (2013) “Peace, Justice, and Reconciliation in Africa: Opportunities and Challenges in the Fight against Impunity”, p. 8.

[11] Angola,Burundi,Central African Republic, Chad, Congo-Brazzaville, Cote d’Ivoire, Democratic Republic of Congo, Egypt, Eritrea, Ethiopia, Guinea-Bissau, Kenya, Liberia, Libya, Madagascar, Mali, Namibia, Niger, Nigeria, Rwanda, Sierra Leone, South Sudan, Sudan, Uganda, and Zimbabwe. See also the Armed Conflict Database of the International Institute for Strategic Studies (IISS), available at https://acd.iiss.org.

[12] This was the case in Kenya after the December 2007 elections, in Zimbabwe in 2008.

[13] Supra, note 8 at p 16.

[14] Article 28 of the Statute of the international Criminal Court, “Responsibility of Commanders and Other Superiors”.

[15] This is the complementary jurisdiction that we mentioned earlier.

[16] Sachs, A (2011), the Strange Alchemy of Life and Law, Oxford: Oxford University Press p. 84.

[17] Gonzalez, E., & Varney, H. (Ed’s). (2013). Truth seeking elements of creating an effective truth commission. Brasilia: Amnesty Commission of the Ministry of Justice of Brazil; New York: ICTJ. https://www.ictj.org/sites /default /files /ictj-book-truth-seeking-2013-English.pdf

[18] Ibid, at p 45

[19] The report of the Argentine National Commission on the Disappeared ‘Nunca mas’ for example, is widely used for public education and has been reprinted and reproduced in various formats to reach larger audiences.

[20] In Timor-Leste, for example, the Commission for Reception, Truth and Reconciliation collaborated with indeginous communities to reintegrate low-level perpetrators who wanted to return to their homes and make amends with those whom they offended.

[21] Supra, note 17 at

[22] In this way, it is a method that mainly focuses on the needs of victims and the restoration of social equilibrium.

[23] OHCHR, (2008), Rule of Law, tools for post conflict state: Reparations Programs. New York and Geneva: Office of the United Nations High Commissioner for Human Rights. http://www.ohchr.org/documents

[24] See memorialization below.

[25] Algeria, Uganda, Sudan, South Africa, Rwanda, Nigeria, Liberia, Kenya, Ghana, Ethiopia, DRC, Chad, Tunisia, Morocco and Sierra Leone.

[26] Khulumani Support Group, available at https://www.khulumani.net/Khulumani

[27] Constitutional reform has been a core element of the transition in many countries such as South Africa (1993-1996) and Kenya (2008-2010).

[28] Other countries, which have instituted such processes, include Algeria, Nigeria, Liberia, Ethiopia, and most recently, Burkina Faso.

[29] Kenya’s judicial vetting process yielded the following outcome: In vetting the Court of Appeal, four of its 9 judges, or 44%of the bench, were deemed unsuitable, mostly on grounds of being partial in furtherance of government repression. In the High Court, seven of its 44 judges, or 15.9%, were deemed unsuitable. At the magistrates’ level, only 14 of its 298 members, or 4.7% were deemed unsuitable, but this was due to practical difficulties of vetting magistrates rather than it being a reflection of their suitability.

[30] For example, in Ethiopia and Kenya.

[31] Huyse, L & Salter, M (Eds) (2008) Transitional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, Sweden: International IDEA.

[32] The Mato Oput in Uganda, the Gacaca in Rwanda, Magamba spirit mediums in Mozambique and Bashingantahe (counsel of wise men) in Burundi, are example of innovative local traditional justice processes in Africa.

[33] This is provided for by the Geneva Conventions of 1949 and the Additional Protocols of 1977. The obligations under these documents supersede the national laws and have to be applied once the state is party to these Conventions.

[34] The main Convention is the Universal Declaration of Human Rights, 1948.

[35] On 3 October 2020, the Transitional Government and parties to the peace process singed “Juba Peace Agreement” which is a comprehensive peace agreement that ends war in all parts of the Sudan and put in place many arrangements to treat the effects of war and to proceed to better future.

[36] See Article 7 of the Transitional Justice Commission Bill, 2020.

المركز الديمقراطى العربى

المركز الديمقراطي العربي مؤسسة مستقلة تعمل فى اطار البحث العلمى والتحليلى فى القضايا الاستراتيجية والسياسية والاقتصادية، ويهدف بشكل اساسى الى دراسة القضايا العربية وانماط التفاعل بين الدول العربية حكومات وشعوبا ومنظمات غير حكومية.

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