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Humanitarian assistance, a ceasefire and reconstruction are urgent policy priorities in Sudan. Yet, another question is looming. How should the legacy of serious violations of human rights and humanitarian law be addressed to achieve justice if and when the war in Sudan ends? It is so for good reason. The approach to ‘transitional justice’ will be critical for the future configuration of Sudan’s state and society. Pertinent justice processes, not least as catalysts for more peaceful and egalitarian societies, are often extremely challenging. Sudan’s history is both a testament to this and a call to be prepared for any windows of opportunity that may arise following the end of the war.
Decades of engaging with the question of human rights and justice in Sudan
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Sudan has a rich history of engaging with transitional justice, from truth telling, reparation, criminal accountability to wider reforms in times of transition, both as a notion and practice. Even though its actual impact has been limited, it provides a pool of experience(s) and lessons to be built on and learned from. The question of human rights and justice in Sudan has been prominent over the last four decades in Sudan. This applies both to how to overcome armed conflicts and the authoritarian al-Bashir regime and how to effectuate successful transitions. Numerous manifestations attest to the important role played by the quest for justice, including: law reform initiatives by the Sudanese Bar Association and foundational human rights reports in the 1980s; civil society declarations on human rights, including transitional justice in Sudan in the 1990s; interventions by victims and lawyers, NGO advocacy, reform initiatives and engagement, particularly on Darfur in the 2000s; gatherings working towards a democratic, ‘just’ Sudan, protest movements, particularly women’s rights activism, and ultimately a revolution that made justice part of its slogan in the (late) 2010s; and intense debates during the transitional period from 2019-21 and amongst multiple civil society groups during the current war. The question of justice for past violations has also been alive at the community level across Sudan. During a workshop in Kadugli, Nuba mountains, which I attended in 2008, participants spontaneously recalled their experiences and violations in the war that ravaged the region in the 1990s and discussed what justice means for them.
These debates on and calls for justice have not been purely ideational. Pertinent practices, which date back to the 1970s, include amnesties in the context of the civil war (South Sudan); constitutional reform in and through the 2005 Comprehensive Peace Agreement; transitional justice components of the Darfur peace agreements in 2006 and 2011; and some limited government responses to the 2005 referral of the Darfur situation to the International Criminal Court and engagement with the 2009 African Union High Level Panel on Darfur. As part of the transitional period following the fall of the al-Bashir regime in 2019, transitional justice figured prominently in Sudan’s Constitutional Document of the same year. Several measures were taken, such as establishing a committee investigating the June 2019 Khartoum massacre and an empowerment removal, anti-corruption and funds recovery committee, both of which proved to be problematic. The controversial 2020 Juba Peace Agreement also envisaged the kind of transitional justice measures that had been recognised in previous peace agreements.
The outcome of these measures has, however, been meagre; some (limited) reforms and, if at all, (very limited) compensation, and prosecutions of those responsible. The discrepancy between aspirations and engagement on the one hand and concrete results on the other is stark. As such, it tells the story of Sudan’s failed transition, or the paradox of transitional justice without any genuine transition. It is a history marked by asymmetrical power relations and impunity for violent, typically male, actors. In seeking to achieve justice and the wider political goal of overcoming deeply engrained, destructive modes of governance, what if any are the lessons that can be drawn from decades of efforts to achieve justice?
Lessons from engagement with ‘transitional justice’ in Sudan
The notion of transitional justice has become a political reality, both as a principle and its implementation, at least in theory, a necessity. This can be attributed to role of the International Criminal Court in Darfur, and engagement by the United Nations, African Union and others, not least Sudanese civil society. There is a rich experience and a considerable number of Sudanese actors who are knowledgeable and engaged in debates and initiatives. A diversity of voices and perspectives means that the importance of contextual responses and participatory processes is widely acknowledged.
This background notwithstanding, the political challenges and risks facing the prospect of successful transitional justice processes are significant. If there is no genuine political transition, such as in case of a de-facto partition of the country amongst the warring parties, transitional justice risks being either marginalised or subject to political manipulation, or a combination of both. A peace agreement may acknowledge transitional justice but risks, judging by past experience, reinforcing violent, kleptocratic rule instead of resulting in the political change that is a condition for its effective implementation. Even in case of a transition towards civilian rule, justice measures may not be viewed as legitimate if they are not embedded in a democratic, participatory process. The discussions surrounding the modalities for such a process were a key factor that hampered more effective action during the 2019-21 transition. Measures that are partial and/or politicised, such as a focus on certain issues or groups, particularly targeting (criminal accountability) or excluding (reparation) members of certain communities, may be counterproductive and ignite backlash if not further polarisation and conflict.
A transitional justice process may also be ineffectual depending on its priorities, mechanisms and sequencing. The 2019-21 transition, in which key legislative and institutional reforms, especially security sector reforms, were delayed, and other reforms of dismantling the previous regime implemented without sufficient regard for due process, holds valuable lessons in this regard. The ultimate measure of success, beyond providing justice to victims and upholding human rights and accountability, of any processes will be how transformative they are for Sudan. As such, they must integrate, and form part of wider political, social and economic reforms that address the multiple causes, including inequality and discrimination, responsible for recurring cycles of authoritarian rule, conflicts and human rights violations in Sudan.
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The task of advancing justice for decades of violations that have produced a multitude of both victims and perpetrators in various contexts in an increasingly polarised society is enormously complex and challenging. It poses many vexing questions, such as that of amnesties, for which there are no easy answers. Such questions are best resolved through a process-oriented approach that is cognisant of local and national traditions, experiences, views and preferences. The implementation of this approach and substantive justice measures will require having in place the right infrastructure, in terms of capacity and resources. International actors can play a useful role in this process if they are both supportive and mindful of Sudanese agency. In the right political circumstances, the foundations to use local and national experience and expertise to advance transitional justice in Sudan are undoubtedly in place. If given the chance, the revolutionary quest for ‘freedom, peace, justice’ may, through appropriate participatory, democratic processes, yet be translated into reality.
Lutz Oette is a Professor of International Human Rights Law at SOAS, University of London, and the co-director of the SOAS Centre for Human Rights Law.