The AU Panel and the Justice Challenge (2)
In the wide-ranging discussions on justice conducted by the AU Panel, three general points about justice stood out. They are, first, a strong consensus that justice must be done; second, a broad understanding about what justice is; and third, divergent views on prosecutions.
A Consensus that Justice Must be Done
Every participant who spoke in every hearing in Darfur and Khartoum said that there was a need for justice, including prosecution of those responsible for the worst crimes.
Amin Mekki Medani, one of Sudan’s most eminent human rights lawyers, summed up the views of many in an eloquent presentation to the civil society hearing in Khartoum. He said,
“It is important to ensure that justice is done, that relief and comfort is brought to the victims, for future generations, for people who see fit to violate the rights of others. Up to now, national and international commissions have studied this crisis. Their consensus is that there have been violent violations of human rights through government agencies, including aerial bombardment, killing, burning of villages, rapes, illegal detentions, etc., etc. Can this be bygones? Can a healthy society reconcile to this past? I think not.”
Amin argued that there needed to be an element of accountability through a judicial system, though he was sceptical that the Sudanese judiciary would be up to the task. He continued,
“Peace and justice are two sides of the same coin. You cannot have peace and then wait for trials. The Government of Sudan has shown no willingness to hold to account people who blatantly violate human rights. Since 2005, court after court has been established, but to date we have yet to see a single responsible person tried for violations of humanitarian law. There is no willingness on the part of the government. How can we reach agreement in which victim and violator can live peaceably together?”
The leaders of the National Congress Party, speaking in the hearing for political parties, also expressed support for justice, but with a different emphasis. The presentation made the following points: first, that the principle of compensation has been recognized by the party; second, that truth-telling and apology are authentic principles; and third, accountability is part of justice and the NCP supports it.
Speaking for the Popular Congress Party, Bashir Rahma””who was imprisoned earlier this year after publicly supporting the ICC””said that justice, peace and reconciliation could not be separated. “The government, the President, should recognize that injustices have been done and apologize, especially to the IDPs.”
Civil society leaders insisted on the need to end impunity. Salih Mahmoud Osman, a lawyer and an outspoken advocate for human rights, said, “Impunity is a culture. Perpetrators commit crimes, and victims don’t see any perpetrator brought to justice, although the world knows about serious heinous crimes, war crimes and crimes against humanity, sexual abuse on a huge scale… We have history and experience of peace and justice. In the south, when the parties sat to negotiate [the CPA], the issue of justice was completely neglected. We cannot allow that in Darfur, we would be encouraging impunity. Justice is a priority and we better not neglect it.”
A Broad Understanding of Justice
Unlike human rights activists and lawyers, who focused on trials of perpetrators, the representatives of communities in Darfur brought a much broader perspective to the question of justice. The Nyala IDPs included the following three main points in their presentation on justice. First, they focused on traditional forms of justice, and urged the perpetrating side to pay diya (bloodmoney) in compensation, only taking a perpetrator to court in the case that he failed to honor the agreement. Second, they saw the lack of participation of all parties in finding a solution to Darfur’s crisis as constituting an injustice. Third, they stressed injustice in sharing power, government revenue and development projects.
Asked by the Panel about procedures for achieving justice, the IDP spokespersons covered the following issues: distributing power and wealth in a just way; taking perpetrators to a fair trial; establishing an independent judiciary; returning rights to the people; respecting freedom of opinion and expression; compensation; confession; apology; reconciliation; and coexistence. One said, “If this compensation had been paid, individual and collective, bringing back all the properties looted, the trial of perpetrators and rule of law, Darfur will be just like before.”
The IDPs in Geneina gave an equally broad, overlapping and somewhat different list. “Justice as we understand it,” they said, included finding recompense or remedy for the “property looted, land occupied, women raped…” They complained, “When we go to the police to record a case, the competent office doesn’t record the case. This has been happening since 2003. These are the injustices we are talking about. The IDP community completely lost confidence in the current police.” They spoke at length about the failure of the police to pursue their cases, and spoke of living under arbitrary rule in which they enjoyed no rights before the law enforcement agencies, including in the allocation of identity cards and rights to land. The response concluded with a revealing observation: “This conflict itself is a result of injustice, lack of development, marginalization.”
The Geneina IDP hearing was interesting in that although Pres. Mbeki specifically pressed the participants on their understanding of justice, there was only passing mention of bringing perpetrators to court. The IDPs’ chief concerns were achieving their basic rights as citizens and residents, including returning to their land.
At the civil society hearings in the other Darfur towns, punitive justice was mentioned but again embedded within a range of other concerns. In al Fashir, the civil society representative provided the following list of actions to achieve justice: acknowledgement of wrongs committed; apology by perpetrators; returning rights to people; elimination of developmental and social injustice; and prosecuting criminals through agreed mechanisms.” In this context, reference to “agreed mechanisms” indicates a lack of agreement among those who contributed to drafting the consensus position””they were postponing a decision on the mechanism until later. In Nyala, the civil society representatives gave an almost identical list, adding the need for effective mechanisms to ensure the full implementation of agreements, and with a greater emphasis on compensation.
In Darfur, the strongest supporters of prosecutions, also placed these in a catalogue of other demands defined as “justice.” For example, the Zalingei IDPs listed: “Prosecute war crimes and genocide before the ICC in accordance with its mandate; material and financial compensation; return of looted properties; admission of the facts; apologies; disarmament; establishment of the rule of law.”
Divergences over Prosecutions
While the broader conceptions of justice elicited consensus, the issue of trials for perpetrators led to diverse opinions. Hassan Abdel Aziz, speaking as representative for the North Darfur Arabs, made the following points:
“The basis of justice is compensation, restitution, reconciliation and apology. It must be supervised by the government.” He added, “A return to Islamic traditions is needed.” Without mentioning the ICC by name, he said, “The Sudanese judiciary can be used for accountability. There should be no external prosecution. After the DDDC [Darfur-Darfur Dialogue and Consultation] there will be no need for trials, as reconciliation will close all that had happened before.”
Similar views were expressed by a number of other native administration leaders in Darfur. The NCP position is not dissimilar. Ibrahim Ahmed Omar said, “Bring peace first, then truth and reconciliation.”
Strong calls for trials were voiced by some civil society groups, the PCP and IDP representatives. The PCP presentation to the political parties’ hearing included the following: “Human rights abuses must be investigated and judged according to international standards. There should be no impunity…. Trials can be held in Sudan or according to the lawful demands of the ICC.” One female IDP in Zalingei said, “there should be no dialogue before apology and the ICC. The prosecution of criminals and former President Bashir should be first.”
In between, there were many nuanced positions. Citing the views at each end of the spectrum does not do justice to those who had intermediate views. Also, it is important to note what some people did not say””something very difficult to capture in a summary. For example, some of those who might have been expected to call for ICC prosecutions did not do so, while others who did so evidently took this as a negotiating position rather than a realistic prospect. Similarly, there were very few who indicated that they favored outright amnesty.