The AU Panel and the Justice Challenge in Sudan (3)
The third and final posting on this subject examines the views of participants on how justice can be achieved in Sudan, looking at the extent of confidence in the Sudanese judicial system, the limits on traditional and transitional justice, and whether some form of special hybrid court might be an option. (The divergent opinions on the ICC have already been mentioned and will not be repeated.)
Confidence in the Sudanese Authorities
No-one in Darfur was impressed with the performance of the Sudanese legal system, including the special courts. The Zalingei IDPs were among the most critical. Their spokesman said, “The Sudanese judiciary is not independent or neutral; it operates under the NCP; it has no witness protection; the Sudanese legal codes don’t include articles dealing with war crimes or genocide.” Questioned by the Panel on the special courts, the Nyala civil society group gave a series of answers that added up to: “We are not aware of the courts and we don’t know how they are functioning.”
Civil society representatives presenting to the hearing in Khartoum provided a series of reasons why they considered that trials before the Sudanese judiciary would not be convincing. These can be summarized:
1. Since the beginning of the conflict, despite an abundance of evidence from Sudanese and international sources, no serious efforts have been made to trace, detain, charge or bring to trial dozens of named individuals.
2. The crimes identified under international humanitarian law do not form part of the Sudanese penal code. While the specific legal difficulty can be overcome (see below), this means that the prosecutors, defence lawyers and judges are neither trained nor experienced in trying such cases.
3. The judiciary has had no independence for the last twenty years and has become politicized. Since the dismissal of the majority of qualified lawyers in 1989, most of those practicing law are either those with experience limited to the sharia courts, or are newly qualified under the inadequate legal training provided by today’s Sudanese university law schools.
4. Impunity is deeply implanted in the legal and administrative systems. Under the armed forces and security acts, which are still in force, a citizen can only file suit against any member of the armed forces or security services, of any rank, with the express permission of the President.
An interesting critique of the position of the Sudan government with respect to the ICC also emerged from the civil society discussions. The point was made separately by Ismail Hussein Fadil and Amin Mekki Medani. They noted that Sudan was well represented in the Rome negotiations leading to the creation of the ICC, and the President himself signed the Rome Statute in 2000. It was due to proceed to the National Assembly for ratification, which did not happen.
Amin Mekki Medani concluded with the following: “Everyone knows that referral to the Court was under Chapter 7 of the UN Charter. Sudan is a party to the UN. So unless we think more wisely about bringing to justice the people responsible, we are facing a Chapter 7 resolution. [A deferral under] Article 16 may be a way out. Maybe, maybe in twelve months we can do something, we can make the world look more favorably on Sudan?”
The Limits of Traditional and Transitional Justice
While Darfurians were all enthusiastic about the possibilities of using traditional justice mechanisms, or their variants, within Darfur, there was also some scepticism about whether these could be usefully applied for wrongs on the scale of those committed during the height of the hostilities in Darfur.
Suleiman Zakaria, in Ain Siro, spoke about judicial accountability for those in the hierarchy of the government and its forces. Transitional justice””by which he meant mechanisms such as truth-telling and reconciliation””was, he said, “achievable.” But, he continued “we won’t accept this to include the government, only the communities.”
Salih Mahmoud Osman, a passionate spokesman for human rights in the National Assembly, addressed this issue: “What is the best mechanism for justice, for serious crimes? Traditional courts cannot deal with crimes like war crimes, crimes against humanity and genocide.” Nawal Hassan Osman, a civil society women’s activist, said, “Saying sorry and reconciling like in South Africa won’t work in the Darfur crisis.”
Others, however, argued that there was no alternative but to using mechanisms for local peace and reconciliation, plus apology, compensation and restitution, as the most important means of reconstituting Darfur and moving ahead. There was no disagreement over the significance of these local mechanisms, merely over the extent to which they should be applied, and exactly how they should be constituted and amended to take account of current realities.
Omer Farouk Shomeina, a leading human rights lawyer, saw the transitional and prosecutorial approaches as complementary, also suggesting that Sudanese needed to be creative. “For transitional justice we must experiment, and draw upon the experiences of South Africa and Burundi. The South African experiment was based upon the concept of forgiveness. The Burundi case brought punitive justice and reconciliation together. The Darfur case is nearer Burundi than South Africa.” He also indicated a possible sequencing and linkage, “Truth telling can at least provide something for the record. It means too that if people forgive they forgive from their heart. And if they want restorative justice [and not punitive justice], they know they want it.”
The Option of Hybrid Courts
Since the creation of the AU Panel there has been speculation linking it to the option of hybrid courts. There are different options and models, but the central idea is that they would use domestic law and, to the extent possible, national prosecutors and judges, with international supervision and some international personnel to ensure that the highest standards are met. Recent examples of hybrid courts include Sierra Leone, Cambodia and East Timor. This question of hybrid courts was not addressed in detail, but some of the lawyers in the civil society hearing raised important issues.
Salih Mahmoud Osman was sceptical. He observed that, “When people said our judiciary was not competent, this was the case. Alternatively, an African court? There cannot be a criminal trial on our continent with the institutions that we have. We only have the African Court of Human and People’s Rights, which has civil jurisdiction only. So we have the justification to say that an international judicial mechanism is needed until the situation is resolved. So the ICC should have jurisdiction. We cannot exclude the ICC.”
(A workshop on this issue was convened by the Darfur Consortium in June. Its findings will be covered in a later posting.)
Amin Mekki Medani noted that the Sudanese penal code had been recently amended to include international crimes such as war crimes and crimes against humanity. A basic principle of law is that laws should not be retroactive, so the question arises whether these newly-introduced laws could be used for prosecuting crimes that were committed five or six years ago. Amin argued that this problem can be resolved with reference to Article 15.2 of the International Convention on Civil and Political Rights, ratified without reservation by Sudan in 1986, which commits Sudan to respecting the relevant international humanitarian law.
One option for a hybrid court, it was suggested, would be a treaty-based mechanism created under Chapter 7 of the UN Charter. However, as Omer Farouk Shomeina said, “A hybrid court must surmount great obstacles.”
I should emphasize that””like all my postings from the AU Panel’s activities””this is a personal reflection on the proceedings. I have tried to be as accurate and balanced as possible. The hearings are public and the stakeholder presentations will be posted on the DDDC website in due course, and in the interests of transparency, I thought it useful to put as much as possible in the public domain so that Sudanese and other interested people can follow what the Panel has been doing, read some of what the panellists have said, and draw their own conclusions. (The recent meetings in Addis Ababa with the Prosecutor of the ICC among others were not public, and so I am not reporting on those.)
President Mbeki and his co-panellists are also deliberating on what they have heard, and will be drawing up their conclusions and recommendations accordingly.